United States Court of Appeals

For the First Circuit

Nos. 13-2224

13-2276

13-2284

UNITED STATES OF AMERICA,

Appellee,

v.

JUAN M. LAUREANO-PÉREZ,

JEFFREY JOHN CUMMINGS-ÁVILA, and

CHRISTOPHER L. LAUREANO-PÉREZ,

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Torruella, Lynch, and Barron,

Circuit Judges.

Lydia Lizarríbar-Masini, for appellant Juan M. Laureano-Pérez.

Karen A. Pickett, with whom Pickett Law Offices, P.C. was on

brief, for appellant Jeffrey John Cummings-Ávila.

Jeremy Gutman, with whom Todd M. Merer, were on brief, for

appellant Christopher L. Laureano-Pérez.

Sonja M. Ralston, Attorney, Appellate Section, Criminal

Division, U.S. Department of Justice, with whom Leslie R. Caldwell,

Assistant Attorney General, Sung-Hee Suh, Deputy Assistant Attorney

General, Rosa Emilia Rodríguez-Vélez, United States Attorney, and

Nelson Pérez-Sosa, Assistant United States Attorney, Appellate

Chief, were on brief, for appellee.

July 30, 2015

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TORRUELLA, Circuit Judge. Defendants Juan Laureano-Pérez

("Juan"), Jeffrey Cummings-Ávila ("Cummings"), and Christopher 

Laureano-Pérez ("Christopher")1

 (collectively, "Defendants") were

convicted of various narcotics possession, firearm, and conspiracy

charges arising out of their participation in an illicit drug

organization. All three appeal their convictions, alleging a host

of errors during the pretrial and trial phases of the proceedings;

Cummings and Christopher also challenge their sentences. For the

reasons explained below, we affirm all of the convictions, as well

as Cummings's sentence. However, we vacate Christopher's sentence

and remand for re-sentencing.

I. Background

We begin with a general overview of the facts and prior

proceedings, reserving additional factual and procedural details

for the relevant discussions below. For present purposes, it is

enough to know that Defendants were members of a large drug

organization operating in the Residencial Villas de Monterrey

public housing project in Bayamón, Puerto Rico (the "Housing

Project") which sold a wide array of narcotics, including heroin,

cocaine base ("crack" cocaine), powder cocaine, and marijuana. 

Additionally, Defendants had different roles in the conspiracy. 

1 Because Juan Laureano-Pérez and Christopher Laureano-Pérez are

brothers with the same last name, we refer to them by their first

names in order to distinguish them. We mean no disrespect in doing

so.

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Christopher was the leader of the organization. Known as both

"Negro" and "the boss," he owned the majority of the drugs sold in

the Housing Project, and, wanting the organization's pushers and

runners to be armed, he also supplied the organization with

weapons. Juan, meanwhile, was Christopher's brother and known as

"McGyver." Juan's role was an enforcer. Finally, Cummings, or

"Pitillo," was an enforcer as well, though he would also deliver

drugs on occasion. Both Juan and Cummings were known to carry .40

caliber pistols.

Cummings was initially indicted on May 30, 2012, and was

charged with: possession with intent to distribute heroin, cocaine

base ("crack" cocaine), and cocaine, each in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(c), 860 (Counts One through Three,

respectively); possession with intent to distribute marijuana, in

violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(D), 860 (Count Four);

illegal possession of a machinegun, in violation of 18 U.S.C.

§§ 922(o), 924(a)(2) (Count Five); and possession of firearms in

furtherance of a drug trafficking crime, in violation of 18 U.S.C.

§ 924(c)(1)(A)(i), (B)(ii) (Count Six). Six months later, on

November 28, 2012, a superseding indictment was returned. This

superseding indictment retained the initial six charges from the

May indictment but also added two more: conspiracy to possess with

intent to distribute controlled substances in a protected location,

in violation of 21 U.S.C. §§ 841(a)(1), 846, 860 (Count Seven), and

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conspiracy to possess firearms in furtherance of a drug trafficking

conspiracy, in violation of 18 U.S.C. § 924(c)(1), (o) (Count

Nine). It also brought charges against Christopher, Juan, and

forty-one other co-conspirators.2 Christopher and Juan were both

charged with the two conspiracy counts (Counts Seven and Nine),

while Juan was also charged with possession of a firearm in

furtherance of a drug conspiracy, in violation of 18 U.S.C.

§ 924(c)(1)(A)(i), (B)(ii) (Count Eight).

Trial began on June 5, 2013, and after eight days of

trial, Defendants were convicted on all counts. Juan and

Christopher were subsequently sentenced to life imprisonment, while

Cummings was sentenced to 480 months. These timely appeals

followed.

II. Pre-Trial Issues

Only Cummings raises pre-trial issues, and he does so

both through his attorney and through a supplemental pro se filing. 

We address each in turn.

A. The Disqualification of Cummings's Counsel

Cummings first argues that the district court violated

his constitutional right to counsel both when it ordered the

disqualification of his attorney, Jorge Armenteros-Chervoni

("Armenteros"), due to a conflict of interest and when it later

2

 None of these other co-conspirators went to trial with

Defendants.

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refused to re-appoint Armenteros despite Cummings's attempt to

waive the conflict. "We review decisions to disqualify an attorney

for conflict of interest for abuse of discretion." United States

v. Lanoue, 137 F.3d 656, 663 (1st Cir. 1998). Here, we find no

such abuse.

1. Relevant Facts

On June 5, 2012, the district court granted Cummings's

motion to be represented by Armenteros instead of a court-appointed

attorney from the Office of the Federal Defender. A month later,

the government became concerned over the source of Armenteros's

attorney fees, so it filed a motion asking the court to determine:

(1) the source of Armenteros's attorney fees; (2) whether

Armenteros was retained or paid by an individual other than

Cummings; (3) whether there was a conflict of interest; and (4) if

there was a conflict, whether Cummings was waiving the conflict and

whether the district court would accept the waiver. At a status

conference on July 26, 2012, the district court set a briefing

schedule and hearing date for the issue.

Though the government never filed its formal motion, the

district court held the hearing on August 14. At the hearing,

Armenteros objected, arguing that the hearing was "premature . . .

because I don't know what is the issue or what is the intent." The

district court disagreed, stating that the parties were there "to

figure out the issue." The government then informed the court that

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it had met with Armenteros and that the government had "showed him

recordings of his defendant, which proved that . . . Attorney

Armenteros [] was retained by another person who is not the

defendant in this case." The government added that Armenteros "did

not deny" that he was being paid by another person. In response to

this proffer, the district court asked Armenteros about the source

of his fees, but Armenteros refused to answer. Instead, Armenteros

responded:

[W]ith all due respect we're going to claim a

due process right now, Your Honor, because I

don't think that the hearing can come to find

out what was going on. I think the prosecutor

must make a claim, and we must respond to

it. . . . I'm telling you that I am not clear

what is the claim to which I have to respond

. . . .

The district court once again explained that the claim

was that Cummings was not paying his own attorney fees but rather

that they were coming from a third party. To this, Armenteros

replied that "that's not the information that I have been given." 

He went on to explain that he had received a $5,000 initial payment

and that his relationship with Cummings "date[d] back to another

case" in which he defended Cummings and was successful in having

the case dismissed. Armenteros conceded that he had heard one of

the recordings involving Cummings but nevertheless maintained that

"the only person that I talked to is [Cummings] who told me, go and

look for some money, okay, in order to get my fees."

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At this point, the government interjected, explaining

that it was "trying to protect . . . the right of the defendant"

because it would create a "clear conflict of interest" if the

person paying Armenteros's fees were someone who the government

might require Cummings to testify against should he enter a plea. 

The district court agreed, noting to Armenteros that

[i]f it's true that there is a possibility

that a third party is paying for your client's

defense, and your client is in a situation

whereby he's facing a 30-year minimum, the

Government is not going to offer any plea

bargaining to him, it is entirely possible

that the purpose, that the purpose of somebody

else paying for the defense is to keep him

shut.

Armenteros once again objected, arguing that he "underst[oo]d that

those funds came from the defendant" and that the government's

position "presupposes . . . that that [third] person told me to go

defend this person." Armenteros argued that "that has never been

the case" and "[i]n fact, there are a million phone calls of

Mr. Cummings'[s] wife asking me to go and visit him once after he's

arrested." Armenteros emphasized that he could recognize a

conflict of interest and was positive that no conflict existed.

The court then proceeded to hear the two telephone

recordings of Cummings with counsel for both the government and

Cummings present. In the first, Cummings spoke to Ana Saurí,

Cummings's girlfriend's mother, and told her that his lawyer had

come to visit him and that "they paid him the money." Saurí added

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that she spoke with Armenteros and asked him to get someone she

called "Negrito" out of jail, to which Armenteros responded, "Don't

mention that name." Cummings also informed Saurí that Armenteros

had told him that if "they work with me on the money and stuff

. . . what I ask them in order to help you, then I will come on

Monday." Later on in the call, Christopher, who had not yet been

indicted, took the phone from Saurí and spoke with Cummings. 

Cummings thanked Christopher "a million for the attorney thing" and

added that Armenteros had told him that "[t]hey gave [Armenteros]

10" and that Cummings could give Armenteros "the other 10 . . .

when you get out." Christopher also stated that he "was going to

see if . . . [he] could send something with the attorney, but it

wasn't possible."

The second recording involved Cummings, Saurí, her

daughter Ashley, and Christopher. In this call, Cummings asked

Christopher, "what did the lawyerinski say to you?" and Christopher

responded that "[h]e hasn't showed up. I have been calling him and

he hasn't showed up . . . . [H]e came to talk about money, but he

hasn't returned." Cummings once again thanked Christopher for the

money, to which Christopher responded that "[t]his is not about the

money, this is about being united." At the end of the call,

Cummings asked Christopher to put pressure on Armenteros because he

"does not come here to visit me," and Christopher responded that he

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will "try[] to call and contact him, but he doesn't want to talk to

me . . . . But, everything that he tells me I will tell you."

Once the recordings were finished, the district court

asked Armenteros if Cummings was "willing to answer some questions

from" the court, but Armenteros declined the invitation because it

was a "very dubious situation." The court emphasized that 

in order for me to make a decision, a balanced

decision, I have to ask him some questions to

figure out, you know, first of all, who is the

person that is paying the fees, what is the

relationship with him, and advise him of the

potential conflicts, et cetera. And he has to

make a decision, and then I have to make my

own decision. But we have to have an exchange

obviously.

Still, Armenteros declined. He informed the court that Cummings

was "more than willing to listen to whatever the Court has to say. 

However, he's not in a position at this point to give any statement

to the Court . . . ." The government objected to this refusal,

arguing "[t]hat's exactly the conflict of interest. The attorney

is there, and I don't know if the client wants to talk to the Court

or if the attorney is not letting the client."

The district court agreed:

If it's clear to me that a third party is

paying for the fees, then I have an obligation

to have some sort of dialogue, if you will,

that has to be through questions and answers

with the defendant, and advise him, get

information from him about this situation, and

advise him of the potential risks and

conflicts. But I am in a situation whereby

the defendant doesn't want to deal with that

issue with me. So I'm getting no information

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from him . . . . [It] is quite clear, that

[Christopher][3] is paying for the fees, and

that [Christopher] has control over a bunch of

things that pertain to the defense obviously.

. . . .

. . . All I'm saying is that it's quite clear,

quite clear from those tapes that

[Christopher], who is the purported leader,

has advanced the funds, retained you to deal

with Cummings, to represent Cummings, and that

Cummings is eternally grateful to

[Christopher] for having done that. Not only

that, [Christopher] and Cummings are going to

decide basically what the strategy's going to

be together, and the strategy is going to be

such that [Christopher] will not be

prejudiced. . . .

. . . .

. . . You have been retained and paid by a

third party. . . . [I]t goes beyond that,

because one thing is the act of a charity of a

third party to pay a defense of somebody dear

to him. Another thing is a situation whereby

the defense is being paid by a third party but

at the same time there is intervention of that

third party and the defendant as to how

they're going to deal with the issue. 

Basically, not only to defend Cummings, but

also to make certain that [Christopher]

doesn't get involved.

Seeing how the court was leaning, Armenteros asked the district

court to delay making a ruling, but the court refused, stating that

"[i]t's made." The district court proceeded to explain its ruling

as follows:

3

 Throughout the hearing, the district court mistakenly referred

to Christopher as Christian.

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[T]he reasons are the ones that I've stated:

No cooperation on defendant's side; obvious

conflict of interest; failure on the

defendant's side, who has a burden, too, to

put me in a position to make a balancing, a

balancing that is going to be very difficult

to make even if he tells me something, because

of the content of the tapes.

Therefore, I am once again stating that

there is a potential material, huge conflict

of interest here that will not allow you to be

his attorney in this case.

Three months later, on November 28, 2012, Cummings filed

a motion requesting that Armenteros be re-appointed as his

attorney. In the motion, Cummings stated that

Mr. Armenteros has been my attorney since

February 18, 2010 . . . . I feel that he has

allways [sic] and will continue to have my

complete confidence as my attorney.

. . . .

I do not believe that Mr. Armenteros

has a conflict of interest. But in any case

if it were true, I am willing to waive said

conflict.

The motion was denied on January 28, 2013.

2. The District Court Did Not Abuse Its Discretion

The Sixth Amendment guarantees the right of an individual

accused in a criminal prosecution to "have the Assistance of

Counsel for his defence," U.S. Const. amend. VI, which necessarily

includes "the right to have an attorney of one's own choosing." 

Lanoue, 137 F.3d at 663. This right, however, is not absolute. 

Id. To the contrary, because the "essential aim" of the Sixth

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Amendment "is to guarantee an effective advocate for each criminal

defendant," Wheat v. United States, 486 U.S. 153, 159 (1988),

"[o]ne important limitation on th[is] right is the trial court's

interest in ensuring that criminal trials are conducted within

ethical and professional standards." In re Grand Jury Proceedings,

859 F.2d 1021, 1023 (1st Cir. 1998).

To that end, "[i]f there is a realistic potential for

conflict of interest," a district court's "concern may override a

defendant's Sixth Amendment right freely to choose his lawyer." 

Id. And while a defendant can often waive the conflict, this, too,

is not absolute. See, e.g., Wheat, 486 U.S. at 158-59; Lanoue, 137

F.3d at 663. A district court may decline to accept a defendant's

waiver "not only in those rare cases where an actual conflict may

be demonstrated before trial, but [also] in the more common cases

where a potential for conflict exists which may or may not burgeon

into an actual conflict as the trial progresses." In re Grand Jury

Proceedings, 859 F.2d at 1023-24 (alteration in original) (emphasis

omitted) (quoting Wheat, 486 U.S. at 163) (internal quotation marks

omitted). Still, there must be a "showing of a serious potential

for conflict" to overcome the presumption in favor of a defendant's

selection of counsel. Id. at 1024.

One such serious potential for conflict occurs when "a

criminal defendant is represented by a lawyer hired and paid by a

third party, particularly when the third party is the operator of

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the alleged criminal enterprise." Wood v. Georgia, 450 U.S. 261,

268-69 (1981); see also United States v. Urutyan, 564 F.3d 679 (4th

Cir. 2009). The conflict arises because a lawyer could be inclined

to "prevent his client from obtaining leniency by preventing the

client from offering testimony against his former employer or from

taking other actions contrary to the employer's interest." Wood,

450 U.S. at 269.

That was the precise situation facing the district court. 

The government alerted the district court that it was concerned

Armenteros was being paid by Christopher -- the leader of the drug

organization connected to Cummings's arrest -- and wanted the court

to inquire further. In response, the district court held a hearing

in which it heard two recordings unequivocally showing that

Armenteros was being paid by somebody other than Cummings, most

likely Christopher, and in which it learned that any plea agreement

offered by the government would necessarily entail cooperation

against others, including Christopher.4 Given this evidence, the

potential for a conflict of interest was obvious. See Lanoue, 137

4 We reject Cummings's argument that his due process rights were

violated when the district court held the hearing despite the

government's failure to file a formal motion as ordered by the

district court. The government made its concerns clear both

through its initial informative motion to the court and through its

arguments at the status conference. Moreover, the government met

with Armenteros and "previewed" one of the recorded phone

conversations. Any allegation that Armenteros was faced with an

unfair surprise and was unable to prepare for the hearing,

therefore, is disingenuous at best.

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F.3d at 664 ("The district court in this case did not make the

decision to disqualify summarily. It held a hearing and allowed

each side to present its arguments for and against

disqualification."); see also Urutyan, 564 F.3d at 687 (finding no

abuse of discretion in district court's disqualification of

attorney due to a conflict of interest where district court heard

a telephone recording between defendant and co-defendant discussing

how a member of the alleged conspiracy could provide defendant with

an attorney). Add to this the fact that Armenteros was

uncooperative throughout the hearing and prohibited Cummings from

partaking in a colloquy with the court, and the district court's

conclusion that there was a likelihood of a conflict of interest

was only further supported.5

 Cf. United States v. Diozzi, 807 F.2d

10, 13 (1st Cir. 1986) (finding no conflict of interest where the

attorneys were cooperative). Accordingly, we find no abuse of

discretion in the district court's decision to disqualify

Armenteros.

5

 That Cummings later seemed willing to engage in a discussion

with the district court through the filing of a motion to waive any

conflict does not alter our analysis. This waiver occurred months

after the initial hearing, and after Christopher had been indicted

as a co-defendant. Christopher's indictment only increased the

chances of a conflict since Armenteros would be representing

Cummings while being paid not by some third party but by a codefendant with different interests. As such, the district court's

decision to reject Cummings's waiver motion was also not an abuse

of discretion. See Wheat, 486 U.S. at 163; In re Grand Jury

Proceedings, 859 F.2d at 1023.

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B. The Speedy Trial Act

Cummings next argues that due to a violation of the

Speedy Trial Act, 18 U.S.C. § 3161, the district court should have

dismissed Cummings's initial indictment with prejudice, thus

barring the inclusion of those charges in the superseding

indictment. We disagree with Cummings that the Speedy Trial Act

was violated.

1. Standard of Review

We review the district court's Speedy Trial Act

determination de novo. United States v. Barnes, 159 F.3d 4, 9-10

(1st Cir. 1998) ("Barnes I"). In doing so, we "start from scratch

in the computation of excludable and nonexcludable time under the

Act" by first "do[ing] the basic mathematics and determin[ing] the

aggregate time elapsed awaiting trial," and then "ascertain[ing]

how many days should be excluded from the total time." Id. at 10

(internal quotation marks omitted). However, we do not go hunting

for nonexcludable time; exclusions of time not specifically

challenged in the district court are waived on appeal. United

States v. Gates, 709 F.3d 58, 67-68 (1st Cir. 2013).

2. The Speedy Trial Act Was Not Violated

The Speedy Trial Act "commands that a defendant be tried

within 70 days of the latest of either the filing of an indictment

or information, or the first appearance before a judge or

magistrate." Barnes I, 159 F.3d at 9 (internal quotation marks and

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citations omitted). Certain periods of time, however, are excluded

from this seventy-day calculation. These include:

[a]ny period of delay resulting from other

proceedings concerning the defendant,

including but not limited to --

. . . .

(F) delay resulting from any pretrial motion,

from the filing of the motion through the

conclusion of the hearing on, or other prompt

disposition of, such motion;

. . . .

(J) delay reasonably attributable to any

period, not to exceed thirty days, during

which any proceeding concerning the defendant

is actually under advisement by the court.

. . . .

(8)(A) Any period of delay resulting from a

continuance granted by any judge on his own

motion or at the request of the defendant or

his counsel or at the request of the attorney

for the Government, if the judge granted such

continuance on the basis of his findings that

the ends of justice served by taking such

action outweigh the best interest of the

public and the defendant in a speedy trial.

Id. (alterations in original) (quoting 18 U.S.C. § 3161(h)).

Here, the parties agree that we begin counting on

June 15, 2012 -- the date of Cummings's arraignment6 -- and that we

6

 It is unclear to us why the parties begin counting on June 15,

2012, the date of Cummings's arraignment. The Speedy Trial Act

instructs that we begin counting on the later of a defendant's

first appearance or indictment; it says nothing about a defendant's

arraignment. See 18 U.S.C. § 3161(c)(1); Barnes I, 159 F.3d at 9. 

Cummings was indicted on May 30, 2012, and his first appearance

occurred on May 2, 2012. Thus, the proper starting date should

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stop the clock on November 28, 2012 -- the date the superseding

indictment adding Cummings's co-defendants was filed. See United

States v. Barnes, 251 F.3d 251, 258 (1st Cir. 2001) ("Barnes II")

(holding that the Speedy Trial Act clock resets upon the return of

a superseding indictment adding new defendants in order to

"synchronize[]" the cases and avoid piecemeal prosecutions and

duplicative proceedings). This is a total of 167 days. We find

the following days to be excludable under the Act:

Date(s) Number of

Days

Reason

June 15, 2012 1 Arraignment -- a "proceeding[]

concerning the defendant." Id.

§ 3161(h)(1).

June 20, 2012 -

June 25, 2012

6 Motion for Rule 404(b)

disclosures -- a "pretrial

motion, from the filing of the

motion through . . .

disposition." Id.

§ 3161(h)(1)(D).

June 25, 2012 -

June 27, 2012

27 Motion for continuance. Id.

§ 3161(h)(7).

July 3, 2012 - July

9, 2012

7 Continuance.8 Id.

have been May 30. However, because Cummings never argued for this

starting point, any nonexcludable time between May 30, 2012, and

June 15, 2012, is waived. See Gates, 709 F.3d at 67-68.

7 Three days elapsed from the filing of the motion on June 25

until its resolution on June 27. However, we only include two

excludable days because June 25 was already excluded as part of the

404(b) motion.

8 Cummings argues that these seven days should not be excluded

because the district court never explicitly found that "the ends of

justice served by taking such action outweigh the best interest of

the public and the defendant in a speedy trial" as required by the

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July 9, 2012 - 

July 26, 2012

179 Motion for discovery -- a

"pretrial motion, from the

filing of the motion through

. . . disposition." Id.

§ 3161(h)(1)(D).

July 23, 2012 -

August 14, 2012

1910 Motion to disqualify counsel --

a "pretrial motion, from the

filing of the motion through

. . . disposition." Id.

August 21, 2012 1 Status conference -- a

"proceeding[] concerning the

defendant." Id. § 3161(h)(1).

September 7, 2012 1 Status conference -- a

"proceeding[] concerning the

defendant." Id.

September 8, 2012 -

September 20, 2012

13 Time between request for status

conference and holding of status

conference.11

Speedy Trial Act. See 18 U.S.C. § 3161(h)(7)(A). However, we have

held that a district court need not explicitly state its reasons

for granting a continuance nor make a "best interest" finding if it

is "'obvious and set forth in [the] motion for a continuance.'" 

See United States v. Pringle, 751 F.2d 419, 432 (1st Cir. 1984)

(quoting United States v. Rush, 738 F.2d 497, 507 (1st Cir. 1984)). 

Cummings's motion for a continuance was premised on Cummings's

counsel being out of the jurisdiction during the continued period. 

This is considered a sufficient reason to exclude the time. See

id. at 432-33 (finding that delays resulting from defense counsel's

scheduling conflicts and defendant's travel outside the

jurisdiction were excludable).

9 This seventeen-day period excludes the July 9 overlap with the

continuance.

10 This nineteen-day period excludes the four-day overlap with

Cummings's discovery motion.

11 It is unclear to us why the parties exclude this time. 

Cummings's request for an additional status conference does not

appear to fit under § 3161(h)(1)(D) as a "pretrial" motion, and

even if it did, the motion would have been disposed of as soon as

the court agreed to hold another conference, since the requested

conference itself cannot be fairly categorized as a hearing on the

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September 21, 2012 1 Status conference -- a

"proceeding[] concerning the

defendant." Id.

October 18, 2012 1 Status conference -- a

"proceeding[] concerning the

defendant." Id.

October 24, 2012 -

October 26, 2012

3 Motion by Cummings -- a

"pretrial motion, from the

filing of the motion through

. . . disposition." Id.

§ 3161(h)(1)(D).

October 30, 2012 -

November 15, 2012

17 Cummings pro se motion asserting

his right to a speedy trial -- a

"pretrial motion, from the

filing of the motion through

. . . disposition."12 Id.

motion. Similarly, we do not believe the time can be categorized

as an excludable continuance under § 3161(h)(7), since even if it

were considered a continuance, there are no findings -- either

explicit or obvious from the record -- that would qualify it as

excludable. Nevertheless, because Cummings never argues for its

nonexclusion, we exclude it. See Gates, 709 F.3d at 67-68.

12 This court has never formally ruled on whether pro se motions

are excludable under the Speedy Trial Act. Given that both parties

excluded the days in their respective calculations and the

exclusion of these days does not affect our calculation, we assume,

without deciding, that the days are excludable.

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November 8, 2012 -

November 28, 2012

1313 Government continuance.14 Id.

§ 3161(h)(7).

Adding all of these days together, 102 days were

excludable. This leaves sixty-five nonexcludable days, five less

than the permitted seventy. Accordingly, the Act was not violated.

C. The Sufficiency of the Superseding Indictment

In his pro se brief, Cummings argues that the superseding

indictment was flawed in two key respects. First, he alleges that

because the § 922(o) charge (Count Five) failed to provide proper

notice of what the government considered a machinegun and what

statute made it illegal, his Fifth Amendment right to due process

was violated. Second, he claims that the superseding indictment's

reference to "crack" cocaine in Counts Two and Seven was

insufficient following the Supreme Court's 2011 decision in

DePierre v. United States, 131 S. Ct. 2225 (2011), which clarified

the meaning of "cocaine base." Cummings never raised these

13 This thirteen-day period excludes the eight-day overlap with

Cummings's pro se motion.

14 Cummings objects to the exclusion of these days because the

court never made explicit its findings and rationale for granting

the continuance. As we stated above, this is not necessary if the

reasons are obvious. Pringle, 751 F.2d at 432. The government

explains that the continuance was requested due to the impending

filing of the superseding indictment. Because a continuance in

this situation would allow all Defendants to be tried together and

to avoid piecemeal and repetitive proceedings, "the ends of justice

served by taking such action outweigh the best interests of the

defendant in a speedy trial," 18 U.S.C. § 3161(h)(7)(A), and thus

the days are properly excluded. See Barnes II, 251 F.3d at 256.

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challenges in the district court, and his failure to do so

"constitutes a forfeiture, which confines appellate review to plain

error." United States v. Troy, 618 F.3d 27, 34 (1st Cir. 2010);

see also Fed. R. Crim. P. 12(b)(3)(B) (stating that challenges to

the sufficiency of an indictment must be raised prior to trial). 

Plain error exists when: (1) an error occurred; (2) which was clear

or obvious; and both (3) affected the defendant's substantial

rights; and (4) seriously impaired the fairness, integrity, or

public reputation of judicial proceedings. Troy, 618 F.3d at 33. 

We need not go past the first step, however, because neither

alleged error has any merit.

1. Count Five of the Superseding Indictment Is Not 

 Defective

"An indictment is legally sufficient if it 'first,

contains the elements of the offense charged and fairly informs a

defendant of the charge against which he must defend, and, second,

enables him to plead an acquittal or conviction in bar of future

prosecutions for the same offense.'" United States v. Berk, 652

F.3d 132, 137 (1st Cir. 2011) (quoting United States v. Cianci, 378

F.3d 71, 81 (1st Cir. 2004)).

Here, Count Five of the superseding indictment alleges

that

[o]n or about May 2nd, 2012, in the District

of Puerto Rico and within the jurisdiction of

this Court, Jeffrey Cummings-Ávila, the

defendant herein, did knowingly and unlawfully

possess, machineguns, to wit: (1) a Glock

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pistol, Model 23, .40 caliber, serial number

on the body PDW-403 and another different

serial number ETE-057 on the side; (2) a Glock

pistol, model 23, .40 caliber, serial number

RYM722, both firearms modified to shoot

automatically more than one shot, without

manual reloading, by a single function of the

trigger. All in violation of Title 18, U.S.C.

Section 922(o) and 924(a)(2).

This description contains all of the elements of Section

922(o)(1),15 which provides that "it shall be unlawful for any

person to transfer or possess a machinegun," and it quotes verbatim

from 26 U.S.C. § 5845(b), which defines a machinegun as "any weapon

which shoots, is designed to shoot, or can be readily restored to

shoot, automatically more than one shot, without manual reloading,

by a single function of the trigger." It also describes the

specific machineguns at issue. As such, Cummings was fairly

informed of what he had to defend against, and the indictment was

therefore sufficient. See Berk, 652 F.3d at 137; United States v.

Just, 74 F.3d 902, 904 (8th Cir. 1996) (finding indictment for

possession of a machinegun sufficient where it only cited to

§ 922(o) and did not include language defining a machinegun).

That the superseding indictment only quotes the language

of § 5845(b) without citing to the statute directly does not alter

this conclusion.16 It is the language describing the elements that

15 Cummings makes no argument regarding § 924(a)(2).

16 We do note, however, that in an abundance of caution it would

be in the government's best interest to cite to all relevant

provisions, especially when directly quoting from those provisions.

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puts a defendant on notice, not a simple citation to a statute. 

Cf. United States v. Daniels, 973 F.2d 272, 275 (4th Cir. 1992)

("[T]he mere citation to the statute of which the defendant is

charged with violating is insufficient to cure the failure of the

indictment to charge each essential element of the offense because

the citation alone does not insure that the grand jury considered

and found each of these elements."). Moreover, while Cummings was

charged with violating § 922(o), this is merely a subsection of

§ 922. A full reading of § 922 directs the reader to § 5845 for

the meaning of a machinegun, see § 922(a)(4), (b)(4), and it is

hornbook statutory construction that "identical words used in

different parts of the same act are intended to have the same

meaning." Sorenson v. Sec'y of Treasury, 475 U.S. 851, 860

(1986)(internal quotation marks omitted); see also, e.g., United

States v. Ozuna-Cabrera, 663 F.3d 496, 499 (1st Cir. 2011).

Accordingly, we find no error with Count Five of the

superseding indictment.

2. Counts Two and Seven of the Superseding Indictment 

 Are Not Defective

In Counts Two and Seven of the superseding indictment,

the government charged Cummings with possession with intent to

distribute cocaine base and conspiracy to possess with intent to

distribute cocaine base (and other narcotics), respectively. In

Count Two, the superseding indictment states that Cummings "did

knowingly and intentionally possess with intent to distribute a

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measurable amount of a mixture or substance containing a detectable

amount of cocaine base ('crack') . . . ." Count Seven, meanwhile,

states that forty-four conspirators, including Cummings, "did

knowingly and intentionally combine, conspire and agree with each

other . . . to possess with the intent to distribute . . . twohundred and eighty (280) grams or more of a mixture or substance

containing a detectable amount of cocaine base ('crack') . . . ." 

According to Cummings, the inclusion of "crack" renders the

superseding indictment insufficient because DePierre

"decriminalize[d] certain individual's conduct . . . [which] would

have otherwise been aggravated violators."

Cummings, however, badly misreads DePierre. In DePierre,

the Supreme Court "h[e]ld that the term 'cocaine base' as used in

§ 841(b)(1) means not just 'crack cocaine,' but cocaine in its

chemically basic form." 131 S. Ct. at 2237. In other words, the

Supreme Court expanded the meaning of cocaine base to include other

forms of cocaine in addition to crack cocaine.17 Id. at 2231. It

in no way "decriminalized" crack cocaine as Cummings seems to

allege.

Counts Two and Seven of the superseding indictment charge

possession with the intent to distribute and conspiracy to possess

with the intent to distribute cocaine base. The parenthetical

17 These include freebase and coca paste. DePierre, 131 S. Ct. at

2231.

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inclusion of "crack" simply specified which form of cocaine base

was at issue. There is nothing improper about this practice.18

III. Trial Issues

Defendants also present a number of alleged errors they

claim occurred during the trial itself. We address each in turn,

noting that unless otherwise stated, the issue was raised in some

form by all three Defendants.

A. The Admission of Certain Pieces of Evidence

Defendants claim that various pieces of evidence -- the

testimonies of Marco A. Díaz Narváez ("Díaz"), Carlos Rivas Serrano

("Rivas" or "Gordo"), and Officer Luis Vázquez Torres ("Officer

Vázquez"), and the two phone calls between Cummings and Christopher

-- were improperly admitted. As explained in more detail below,

all of the evidence was admissible.

1. Díaz

a. The Contested Testimony

Díaz was a member of the conspiracy who agreed to

cooperate with the government. According to Díaz, he was a seller

in the organization and would also store guns for Christopher. 

After discussing his involvement, Díaz testified about three

18 Cummings makes a similar unpreserved argument regarding the jury

instructions for these counts, alleging that it was error to

instruct the jury on crack cocaine as opposed to cocaine base

because crack and cocaine base were no longer synonymous under

DePierre. For the same reasons discussed above, we reject this

argument.

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specific instances. The first two involved "rounds" with Juan. 

During these "rounds," Díaz -- driving Cummings's car -- would take

Juan to a specified location, find the person they were looking

for, beat the person up, put the person in the trunk of Cummings's

car, and then drive for a while before letting Díaz out and

continuing to drive onward with the victim in the trunk. Díaz

testified that he never knew in advance where they were going, who

they were looking for, or why they were looking for that person. 

Rather, he just followed Juan's instructions, which were being

carried out on Christopher's behalf. Díaz added that Juan was

armed both times and that Christopher was the leader of the

conspiracy.

The third incident occurred one night in the Housing

Project. According to Díaz, he had been on duty selling drugs late

one night when he heard two shots. Shortly thereafter, Juan and

Christopher appeared and enlisted Díaz's help putting a young man

with a gunshot wound in his leg into a car. Díaz testified that he

was later told that Juan had shot the young man -- who was not from

the Housing Project -- twice at Christopher's behest.

b. This Testimony Was Properly Admitted

Defendants contend that this testimony was irrelevant and

thus should have been excluded. Because they made this objection

at trial, we review for abuse of discretion. United States v.

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Richardson, 421 F.3d 17, 37 (1st Cir. 2005). Contrary to

Defendants' assertion, however, the testimony was relevant.

We reject Defendants' suggestion that Díaz's testimony

shows that the "rounds" were not part of the drug conspiracy. 

Though Díaz did testify about the "rounds" in response to questions

from the prosecutor about actions "aside from the drugs," a review

of the transcript as a whole makes clear that the "rounds" were

related to the drug organization. Given this relationship, there

is little question that the testimony was relevant. See Fed. R.

Evid. 401 ("Evidence is relevant if: (a) it has any tendency to

make a fact more or less probable than it would be without the

evidence; and (b) the fact is of consequence in determining the

action."). The testimony helped establish a connection between

Defendants -- Juan, acting on Christopher's orders, used Cummings's

car -- and between Defendants and the drug conspiracy -- the

rounds, being conducted by Juan on Christopher's behalf, were in

connection to the drug organization. It also helped to prove at

least two allegations in the indictment -- that the roles of

Christopher and Juan were leader and enforcer, respectively, and

that the leaders of the organization would use force, violence, and

intimidation in order to protect the conspiracy and maintain

control. See United States v. Rivera Calderón, 578 F.3d 78, 95-96

(1st Cir. 2009) (holding that evidence of murders was relevant to

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show the existence of a single, overarching drug conspiracy and to

prove the defendant's involvement in the conspiracy).

As a fallback position, Defendants contend that even if

the evidence was relevant, it should still have been excluded as

unfairly prejudicial under Rule 403 of the Federal Rules of

Evidence. Defendants never raised this objection below, and thus

we review for plain error. Id. at 95; see also United States v.

Ciresi, 697 F.3d 19, 26 (1st Cir. 2012). Under any standard,

however, this argument fails. Evidence is only excluded under Rule

403 "if its probative value is substantially outweighed by 'the

danger of unfair prejudice.'" United States v. Varoudakis, 233

F.3d 113, 121 (1st Cir. 2000) (quoting Fed. R. Evid. 403). And

"unfair prejudice" is often reserved for "evidence that invites the

jury to render a verdict on an improper emotional basis" or for

evidence that is "shocking or heinous" and "likely to inflame the

jury." Id. at 122 (internal quotation marks and citations

omitted). Díaz's testimony does none of these things, and thus its

admission was not unfairly prejudicial.

2. Rivas

a. The Contested Testimony

Like Díaz, Rivas was also a member of the conspiracy who

chose to cooperate with the government. Rivas's testimony focused

mostly on Christopher. First, Rivas described an incident where

Christopher had a "problem" because "some people . . . shot at his

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car with his kids in it" while they were traveling near a bakery. 

According to Rivas, in response to this attack, Christopher and

"Coquito" and "Monchi" -- two of the drug conspiracy's "triggermen"

-- went in search of the shooters. Rivas testified that he knew

all three were armed because "[h]e was always armed every time that

they would go out to solve a problem" and "they weren't going out

to the shopping mall to look for clothing. They were going out to

look for the enemy."

b. This Testimony Was Properly Admitted

Like with Díaz's testimony, Defendants allege that

Rivas's testimony is both irrelevant and unfairly prejudicial. 

However, neither of these objections was raised below, so we review

for plain error.19 See Ciresi, 697 F.3d at 26. Once again, we find

no error. Rivas's testimony is relevant because it helps to

establish that Christopher was a leader of the organization -- he

was targeted shortly after another leader was murdered and it is

unlikely that a low-level member of the organization would be

targeted for assassination -- and that the drug organization

resorted to violence to protect its territory. Moreover, the fact

that Christopher and his men were armed provides proof of the

19 Christopher did object to Rivas's statement that the men were

armed and his subsequent explanation as to how he knew this, but

the objection was based on a different ground. See United States

v. Wallace, 461 F.3d 15, 35 n.11 (1st Cir. 2006) ("Because that

objection was on different grounds, however, we deem the

defendant's present argument of error, raised for the first time on

appeal, as unpreserved.").

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conspiracy charged in Count Nine -- conspiracy to possess firearms

in furtherance of a drug trafficking crime. See Fed. R. Evid. 401;

Rivera Calderón, 578 F.3d at 95-96. And because the testimony was

neither shocking, heinous, nor likely to inflame the jury, it need

not have been excluded under Rule 403. See Varoudakis, 233 F.3d at

122.

3. Officer Vázquez

a. The Contested Testimony20

During Officer Vázquez's testimony, a video was played

showing Christopher and others attending the funeral of Miguel Ruiz

Sánchez ("Miguel") at the Housing Project. Officer Vázquez

commented on the video, explaining that "[a]ccording to [his]

investigation, Miguel Ruiz Sánchez was one of the leaders" of the

conspiracy and that the reason some of the individuals were seen in

the video picking up shell casings from the basketball court at the

Housing Project was because "according to [their] investigation,

the previous day they were having a wake . . . for Miguel Ruiz

Sánchez inside the project." The officer then proceeded to

identify one of the individuals in the video as Antero Rivero

Marrero ("Rivero").

On cross-examination, Officer Vázquez testified that

according to his investigation, Rivero "was serving as an escort"

20 Defendants also challenge parts of Officer Vázquez's testimony

as overview testimony. That is addressed in Part III.B.1, infra.

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for Christopher because Christopher "feared for his life, and . . .

was hot in the street." On re-direct examination, the government 

asked Officer Vázquez about Rivero's escort services. Officer

Vázquez testified that Rivero had a fictitious license to escort

dignitaries and agreed with the statement that no license would

permit possession of the two AK-47 rifles that were seized from

Rivero because it is not legal "to carry firearms to protect a drug

trafficker."

b. This Testimony Was Properly Admitted

Defendants once again challenge the relevance and undue

prejudice of this testimony. Once again, our review is for plain

error, and, once again, their challenge fails. See Ciresi, 697

F.3d at 26. Both pieces of evidence -- the picking up of the shell

casings and the questioning into Rivero's escort services -- are

relevant.

Regarding the shell casings, the evidence is relevant for

two reasons. First, the testimony connects Christopher with

Miguel, who was known to be a leader of the drug organization. By

establishing that Christopher was sufficiently connected to Miguel

to attend his funeral, the evidence supported the conclusion that

the two were part of the same organization. Second, the collection

of the shell casings helps support the allegation that the

organization used weapons (thus providing evidence of the gunrelated conspiracy charge) and that the conspirators were familiar

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with the firearms. See Fed. R. Evid. 401; Rivera Calderón, 578

F.3d at 95-96. Once again, nothing about this testimony was

unfairly prejudicial. See Varoudakis, 233 F.3d at 122.

As to the testimony regarding Rivero, the majority of

this testimony was relevant for much the same reason as the

testimonies already discussed: it helped establish Christopher's

role as a leader in the organization since a low-level conspirator

would likely not need the level of protection that Christopher

needed. And though the district court could have in its discretion

applied Rule 403 to exclude Officer Vázquez's agreement that it was

not legal for Rivero to "carry firearms to protect a drug

trafficker," its failure to do so does not constitute plain error,

especially given our "great deference" to a district court's 403

rulings. See id. In any event, this one comment was harmless

given all of the other evidence presented. See United States v.

Landrón-Class, 696 F.3d 62, 68 (1st Cir. 2012).

4. The Recorded Phone Calls

a. The Contested Portions of the Calls

As mentioned above while discussing the disqualification

of Cummings's counsel, two conversations involving Cummings were

recorded while he was detained at the Metropolitan Detention Center

("MDC"), Guaynabo. In both calls -- one on June 5, 2012, and one

on July 14, 2012 -- Cummings spoke with Christopher, who had not

yet been arrested. Besides discussing the payments to Cummings's

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counsel, the two also discussed whether Juan was looking for

"Gordo" -- recall, this is Rivas's alias. Cummings informed

Christopher that Juan was working in the kitchen at MDC, Guaynabo

and had been looking for Rivas but was unable to find him. In

addition, Cummings and Christopher spoke about the attack on

Christopher and his family outside the bakery, specifically

focusing on the fact that other members of their organization had

advance knowledge of the attack and that there would be retaliation

against those who shifted loyalties.

b. The Recordings Were Properly Admitted

Juan objects to the admission of the two phone calls on

hearsay grounds. Because he failed to object when the statements

were first admitted and at the close of evidence, we review for

plain error.21 See Ciresi, 697 F.3d at 25-26 (holding that to

preserve a challenge to the admission of co-conspirator statements,

"a defendant must object on hearsay grounds when his or her

coconspirator's statement is provisionally admitted and must renew

the objection at the close of evidence"). We reject this

challenge, as the calls were properly admitted as co-conspirator

statements.

21 Juan did initially object on Confrontation Clause grounds, but

does not renew that objection on appeal. See Wallace, 461 F.3d at

35 n.11. Even if he had, that argument would fail as well, as coconspirator statements are "by their nature, not testimonial," and

thus not subject to the Confrontation Clause. Ciresi, 697 F.3d at

31; see also Bourjaily v. United States, 483 U.S. 171, 182 (1987).

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Though hearsay evidence is generally inadmissible in

criminal trials, Rule 801(d)(2)(E) of the Federal Rules of Evidence

"provides that a statement made by a defendant's coconspirator

'during the course of and in furtherance of the conspiracy' may be

introduced as the nonhearsay admission of a party opponent." Id.

(quoting Fed. R. Evid. 801(d)(2)(E)). For a statement to qualify,

the declarant and the defendant must be members of a conspiracy

when the statement was made and the statement must have been made

in furtherance of the conspiracy. Id.

The calls here meet both requirements. As to the first,

the government provided significant evidence that Juan, Cummings,

and Christopher were all members of the same drug organization --

and thus the same conspiracy -- and there is nothing in the record

to suggest that any Defendant affirmatively withdrew from the

conspiracy. See United States v. Piper, 298 F.3d 47, 52 (1st Cir.

2002) ("Where a conspiracy contemplates a continuity of purpose and

a continued performance of acts, it is presumed to exist until

there has been an affirmative showing that it has terminated."

(internal quotation marks omitted)).

As to the second requirement, the calls did in fact

further the ends of the conspiracy. At the time of the calls,

Cummings and Juan had been arrested but Christopher had not, and

the evidence showed that the conspiracy was still ongoing at the

Housing Project. For example, Officer Vázquez testified that

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surveillance continued until November 2012, months after the June

and July telephone calls. Moreover, when Christopher was arrested,

additional guns and drugs were seized, suggesting that the

contraband seized in the earlier raids had been replenished. See

United States v. Elwell, 984 F.2d 1289, 1293 (1st Cir. 1993)

(finding a conspiracy to be ongoing and defendant to still be a

part of it even after his arrest).

Given that the organization was still operating, the

calls can reasonably be interpreted as promoting the conspiracy.

Cummings and Christopher discussed how certain members of the

conspiracy -- such as Rivas -- knew that Christopher was going to

be attacked and that Christopher was contemplating retaliating

against those who were disloyal. Maintaining loyalty from others

clearly promotes the conspiracy. See Ciresi, 697 F.3d at 30

(finding that statements "served to placate . . . and forestall any

dissension" were in furtherance of the conspiracy); Elwell, 984

F.2d at 1293.

The calls, therefore, properly qualify as co-conspirator

statements and were thus properly admitted.

B. Overview Testimony

Next, Defendants claim that Officer Vázquez and Federal

Bureau of Investigation ("FBI") Special Agent David James provided

improper overview testimony. Overview testimony occurs, for

example, when "a government witness testifies about the results of

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a criminal investigation, usually including aspects of the

investigation the witness did not participate in, before the

government has presented supporting evidence." United States v.

Rosado-Pérez, 605 F.3d 48, 55 (1st Cir. 2010). We have repeatedly

condemned the use of such tactics, finding it "inherently

problematic" for a number of reasons. United States v. Casas, 356

F.3d 104, 119 (1st Cir. 2004); see also United States v. Flores-DeJesús, 569 F.3d 8, 14 (1st Cir. 2009). First, because it is

possible that "evidence promised by the overview witness never

materializes," Flores-De-Jesús, 569 F.3d at 17, the testimony

"raises the very real specter that the jury verdict could be

influenced by statements of fact or credibility assessments" not in

evidence, Casas, 356 F.3d at 119. Second, it is similarly possible

that subsequent testimony will differ from the assumptions of the

overview witness. Id. at 119-20.

Though our concerns with overview testimony are

applicable regardless of the witness involved, our skepticism is

enhanced when the witness is a law enforcement official because

"juries may place greater weight on evidence perceived to have the

imprimatur of the government." Id. at 119. As we explained in

Flores-De-Jesús, "overview testimony of a law enforcement official

is not simply a repetition (at best) of other evidence. It is

also, in effect, an endorsement of the veracity of the testimony

that will follow." 569 F.3d at 18. Moreover, a law enforcement

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official is likely to "express opinions as to defendants'

culpability based on the totality of information gathered in the

course of their investigation," even though the official did not

have personal knowledge. Id. at 19 (alterations omitted) (internal

quotation marks omitted). Such testimony is inadmissible and

effectively serves to usurp the role of the jury because the

witness's inference is based on the same circumstantial evidence

presented to the jury. United States v. Meises, 645 F.3d 5, 16

(1st Cir. 2011).

With that background in place, we now turn to the

contested testimony here.

1. Officer Vázquez

Defendants never objected that Officer Vázquez was

providing overview testimony, and thus we review for plain error.

Rosado-Pérez, 605 F.3d at 54.

a. The Contested Testimony

Officer Vázquez testified during the first two days of

trial. In explaining his involvement in the investigation, Officer

Vázquez told the jury that he led the Bayamón Strike Force which

was tasked with, among other things, conducting video surveillance. 

This video surveillance, he explained, occurred over fifteen days. 

On twelve of those days, Officer Vázquez was either personally

operating the camera or assisting a colleague in doing so; on the

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other three days, Officer Vázquez was on the ground surveilling the

Housing Project.

In addition to authenticating the clips from the fifteenday surveillance, Officer Vázquez also described what the clips

were portraying. He told the jury that the surveillance was

directed toward "the site that we had identified as the drug point"

and that the video clips represented "all persons that appear[ed]

engaged in a criminal activity at that point in time." For each

video clip, he would point out all of the individuals present --

noting their role in the drug organization -- as well as the

controlled substances, firearms, and other objects which could be

seen. For example, in one clip, Officer Vázquez explained to the

jury that they were viewing Cummings holding "a package with a

number of baggies inside with a white content." The rest of the

clips contained similar commentary.

b. This Testimony Was Not Overview Testimony

Contrary to Defendants' contention, this was not a "new

variation" of overview testimony derived by the government. In

fact, it was not "overview" testimony at all. Officer Vázquez was

present at each and every surveillance -- either behind the camera

or in front of it -- and thus was simply testifying about his own

observations based on his personal knowledge. And while he did

note the apparent roles each Defendant played in the organization,

he never expressed an opinion as to their culpability. Cf. Flores-

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De-Jesús, 569 F.3d at 19 ("When a law enforcement witness expresses

opinions as to defendants' culpability based on the totality of

information gathered in the course of their investigation, these

conclusory statements often involve impressible lay opinion

testimony . . . ." (alterations omitted) (internal citation and

quotation marks omitted)). Appropriate testimony does not become

improper overview testimony just because one law enforcement

official was present throughout the entire investigation and is

then called to walk the jury through the investigation from

beginning to end. See United States v. Valdivia, 680 F.3d 33, 48

(1st Cir. 2012) ("[F]ar from being a scripted 'overview' of the

government's case by uninvolved agents, the testimony represented

the fruits of first-hand police work."); Rosado-Pérez, 605 F.3d at

55-56 (finding testimony to be proper where agent was lead

investigator, participated in surveillance and controlled drug

buys, and testified only on the basis of personal observations).

Moreover, none of the problems generally associated with

overview testimony are present here. Because Officer Vázquez was

providing a first-hand account of his observations, while

simultaneously playing the video clips of those surveillances,

there is no concern that the evidence being testified to would

never materialize. Nor is there a worry that Officer Vázquez would

make assumptions disputed by later testimony. Cf. Flores-De-Jesús,

569 F.3d at 17; Casas, 356 F.3d at 119.

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Accordingly, the testimony was proper.

2. Agent James

Unlike with Officer Vázquez, there was an objection to

the district court's decision to allow Agent James to elaborate and

clarify his testimony. Accordingly, our review is for abuse of

discretion. Rosado-Pérez, 605 F.3d at 54.

a. The Contested Testimony

Agent James was called as part of Christopher's case-inchief in an attempt to discredit Rivas, one of the government's

cooperating witnesses. Rivas had testified during the government's

case that Christopher was a leader of the organization, but in a

pre-trial interview with Agent James, Rivas had not named

Christopher when listing the organization's leadership. 

Accordingly, Christopher's attorney asked the agent to read a

paragraph from his interview report which had memorialized the

conversation. After reading the paragraph, Agent James attempted

to clarify the report. He explained (over Christopher's objection)

that while the report reflected Rivas's initial interview, he "of

course corroborated this with other intelligence." He then

proceeded to summarize this intelligence:

AGENT JAMES: [Rivas] did not know the

name of this individual, but did identify his

nickname as Negro. If I can provide some

context to the Court.

COURT: Sure.

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AGENT JAMES: In these initial

interviews, I had a binder that showed

different pictures, and so I'd just show it

and they would identify. So this is the

number two of the ones whom I showed him whom

Carlos Rivas identified.

So number two, he did not know the name

of the individual, but identified his nickname

as Negro. Negro is known to us as -- by law

enforcement as Christopher Laureano Pérez. 

Negro is the other leader of the Residential

Villas De Monterrey. Negro frequents

Residential Villas De Monterrey more than

Miguel. He visits Villas De Monterrey

approximately three times a week or more. 

Miguel only visits approximately two times a

week. He gives orders to the drug point. 

Negro is armed with a .50 caliber pistol. He

saw him firing it on New Year's Eve. Negro

was shooting it into the air.

Previously, some enemies of Residential

Villas De Monterrey tried to kill Negro and

his children in order to take over the

Residential Villas De Monterrey drug point. 

Negro drives a black Toyota Carolla [sic], and

also rides a gray and black scooter. He has a

house probably in Naranjito or Barranquitas.

b. This Testimony Was Potentially Improper but 

 Harmless

Unlike Officer Vázquez's testimony, this testimony was

potentially problematic for two reasons. First, Agent James made

clear that he was not testifying about his personal knowledge of

"Negro" but rather was summarizing everything the investigation had

uncovered. Second, the "context" he provided was well beyond the

scope of the question asked.

Whether this qualifies as improper "overview testimony,"

however, is a determination we need not make because any error that

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may have occurred was harmless. Agent James testified as part of

Christopher's case-in-chief, well after the government had already

rested. Thus, most -- if not all -- of the evidence Agent James

referred to had already been introduced by other witnesses. At the

very least, the government had provided evidence that Christopher

and "Negro" were the same person and that there had been an attempt

on Christopher's life. Given the timing of this testimony and the

fact that the same evidence had previously been properly

introduced, we are confident that this testimony did not affect the

verdict, and thus the error was harmless. See United States v.

Hall, 434 F.3d 42, 57 (1st Cir. 2006) (distinguishing other cases

involving improper overview testimony in part because the officer

"did not testify until near the end of the government's case-inchief"); Casas, 356 F.3d at 121 (explaining that the admission of

improper testimony is "harmless if it is highly probable that the

error did not influence the verdict").

C. Judicial Bias

Defendants next allege that numerous actions by the

district court show that it was biased against them, and that this

bias deprived them of a fair trial. When reviewing claims of

judicial bias, we "must evaluate the judge's actions 'according to

a standard of fairness and impartiality, recognizing that each case

tends to be fact-specific.'" Logue v. Dore, 103 F.3d 1040, 1045

(1st Cir. 1997) (quoting United States v. Polito, 856 F.2d 414, 418

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(1st Cir. 1988)). That being said, it is important to consider

"isolated incidents in light of the entire transcript so as to

guard against magnification on appeal of instances which were of

little importance in their setting." United States v. CandelariaSilva, 166 F.3d 19, 35 (1st Cir. 1999) (internal citation and

quotation marks omitted).

Here the allegations take three general forms: (1)

endorsement of government witnesses through additional questions by

the district court; (2) hostile statements made to Juan by the

district court; and (3) adverse judicial rulings. These sorts of

claims will only be successful if the party alleging bias can show

"serious prejudice." Logue, 103 F.3d at 1045. After thoroughly

reviewing the record, we reject the contention that these actions

-- either taken independently or together -- rise to the level of

legally cognizable judicial bias by the district court.

1. The Bolstering of Witnesses

Defendants first argue that the district court

continually questioned witnesses and interjected comments which

improperly bolstered their testimony, thus lessening the

government's burden and evincing bias towards them. Because no

Defendant objected to the district court's practice of asking

questions or to any of its specific comments, we review for plain

error. United States v. Fernández, 145 F.3d 59, 63 (1st Cir.

1998).

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a. Relevant Facts

During trial, the district court asked witnesses a number

of questions and made a variety of comments. These included the

following:

C During the testimony of cooperating

witness Díaz, the district court asked

"what are your obligations?" in

relation to the cooperation agreement

with the government. In response, Díaz

stated that his obligation was

"cooperation in telling the truth." He

also testified that he had been offered

"safety" and "security out in the

street" in exchange for his

cooperation. When Juan objected to the

government's attempt to elaborate, the

district court sustained the objection,

stating that "it is self-explanatory"

that "he cooperates, he needs

security."

C During the testimony of cooperating

witness Rivas, the district court

interjected when the government asked

what would happen if Rivas did not tell

the truth. The court stated, "Do you

understand that aside from that point,

if you are caught lying, inventing,

exaggerating, et cetera, you could face

charges for perjury or for obstruction

of justice, too?" Rivas acknowledged

that "[e]verything would then be in the

hands of the Judge" if he was caught

lying, to which the district court

responded "on top of that, you will

always be in my hands, you understand

me?" Finally, when Rivas revealed that

he and the government had agreed on a

sentence recommendation of sixty

months, the district court again

interrupted to make clear that it did

not necessarily have to follow the

recommendation.

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C When the district court overruled an

objection and allowed Officer Eric

Rivera Figueroa ("Officer Rivera") to

testify about how a "chip" converts a

pistol into an automatic weapon, it

explained its ruling by stating that

"[t]his man has been a police officer

dealing with firearms and drugs for

years. He can tell us whether this is

a chip or not." Similarly, the

district court explained that it was

allowing Rivera to show the jury how to

use a magazine because "[h]e's in the

police force, in the Bayamón Strike

Force, deals with these issues every

day of his life."

C When Officer María Cruz identified an

item seized during the search as a

"cleaning kit," the district court

inquired what the kit was designed to

clean.

C During the testimony of federal Bureau

of Alcohol, Tobacco, Firearms, and

Explosives ("ATF") Agent Carlos

González, the district court asked a

number of questions related to the

seized firearms. First, it asked what

the purpose of shortening the AK-47

was, to which Agent González responded,

"[t]he shorter you make a firearm, the

easier it is to conceal." Second, it

asked whether high-capacity magazines

like the ones seized were legal to buy,

to which the agent responded that they

were. It followed this up by asking "a

curious question" regarding the

magazines: "When you guys go out on an

operation, is this the kind of thing

you use on your firearms?" When the

agent responded in the negative, the

district court said "[n]ot at all,

right?" 

C When Officer Rivera described the items

he recovered during the search as

"cylindrical plastic transparent

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bottles, containers," the district

court tried to clarify their

description, asking if they were

"[l]ittle bottles. It's like little

bottles, correct?"

C In response to Officer Abizer Cotto

Adorno ("Officer Cotto") identifying

seized items as "cocaine vials," the

court interjected, clarifying that the

officer did not actually know what was

inside the vials.

b. The District Court Did Not Improperly Endorse 

 Witnesses

"It is well-established that a judge is not a mere

umpire" and accordingly "has a perfect right -- albeit a right that

should be exercised with care -- to participate actively in the

trial proper." United States v. Ofray-Campos, 534 F.3d 1, 33 (1st

Cir. 2008). This includes asking questions "to elicit facts to

facilitate a clear presentation of the issues." United States v.

Meléndez-Rivas, 566 F.3d 41, 50 (1st Cir. 2009) (internal quotation

marks omitted). Still, a district court needs to "be balanced;

[it] cannot become an advocate or otherwise use [its] judicial

powers to advantage or disadvantage a party unfairly." Id.

(internal quotation marks omitted). So as long as the court

"preserves an attitude of impartiality and guards against giving

the jury an impression that the court believes the defendant is

guilty," it may question witnesses. United States v. RosarioPeralta, 199 F.3d 552, 560 (1st Cir. 1999).

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Here, Defendants point to the district court's comments

during the testimonies of Díaz, Rivas, Officer Rivera, Officer

Cruz, and Agent González to support their claim of bias. However,

Defendants conveniently ignore the district court's comments and

questions to Officer Rivera and Officer Cotto and its question to

Agent González regarding the legality of purchasing high-capacity

magazines which show a much more balanced approach to questioning.

Taken together, these questions and comments show that

the district court asked questions which were helpful (and

unhelpful) to both sides. For example, it asked Agent González

about the purpose of shortening firearms and whether it was common

law enforcement procedure to use high-capacity magazines (questions

unhelpful to Defendants), but it also asked him whether those same

high-capacity magazines were legal to buy (a question helpful to

Defendants). And while it questioned Officer Cruz as to the

purpose of the recovered cleaning kit (a question unhelpful to

Defendants), it also corrected Officer Cotto's statement that he

recovered "cocaine vials" by interjecting that the officer did not

actually know what was inside (a question helpful to Defendants). 

We view these questions as a legitimate attempt to clarify

testimony and focus the presentation of evidence, and not an

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indication of a district court using its powers to unfairly

disadvantage Defendants.22 See Meléndez-Rivas, 566 F.3d at 50.

We also disagree with Defendants that reminding the

cooperating witnesses of their requirement to be truthful was

"bolstering the prosecution." If anything, these warning should

help Defendants, since if the witnesses had a motivation to lie --

which is the focus of the typical cross-examination of a

cooperating witness -- the district court's comments could have

scared the witnesses into telling the truth. The same can be said

for the district court's action of sustaining Juan's objection to

the government's attempt to follow up on Díaz's "safety" comment.

Similarly, we fail to see how the district court was

bolstering the prosecution by explaining its reasoning for finding

Officer Rivera and Agent González qualified to answer the

government's questions. There is a difference between objectively

stating the officer's qualifications to answer a question on the

one hand and suggesting that the officer's testimony is to be given

enhanced weight and credibility because of these qualifications on

the other. Here, the district did the former while avoiding the

latter.

22 We also note that the district court's questioning was isolated,

occurring only a handful of times over an eight-day trial. Cf.

United States v. Ayala-Vázquez, 751 F.3d 1, 19-20, 25 (1st Cir.

2014) (finding a district court's questioning to not be improper

where there were twenty-three comments over four days of an

eighteen-day trial).

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While all of these interjections may have highlighted

issues Defendants would rather the jury not have focused on, that

does not mean that the district court improper bolstered witnesses,

nor does it indicate bias. See Rosario-Peralta, 199 F.3d at 560.

Finally, we add that even if the questions did mistakenly

give the jury an impression of bias, cf. United States v. RiveraRodríguez, 761 F.3d 105, 121 (1st Cir. 2014), any prejudice was

cured by the district court in its closing instructions, where it

specifically instructed the jury on this issue:

I have an obligation as a judge to get

immersed in questioning if I think I should,

but you should not ever take from any question

that I [m]ake or from anything that I say or

do an inclination or indication on my part as

to what the result of the case should be. 

That is not the purpose. The purpose is to

try to give you the best quality of evidence

possible. You are at liberty to disregard any

question, any comment that I may have made in

the context of this case.

We have previously held that similar jury instructions were

sufficient to dispel any impressions that a district court's

questioning may have caused, and we see no reason to depart from

those holdings here. See Ayala-Vázquez, 751 F.3d at 25, 26;

Rivera-Torres v. Ortiz-Vélez, 341 F.3d 86, 100 (1st Cir. 2003); cf.

Meléndez-Rivas, 566 F.3d at 51 n.10 ("There was, for example, no

instruction that the jury should not assume the court had any view

on the subject of the court's questions and that the jury could

disregard all the court's questions.").

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2. The District Court's Admonitions to Juan

Juan also argues that the district court was specifically

biased against him.

a. Relevant Facts

Once during jury selection and again during the trial,

the district court observed Juan staring at the jury. Thinking

that this was an attempt to intimidate them, the district court

sent Juan's counsel a note warning Juan not to stare at the jury. 

Also during the trial, Juan alerted the district court that he

believed the prosecutor was making improper hand signals to

witnesses. When the issue was discussed outside the presence of

the jury, the district court rejected the allegation, telling Juan

that it was observing the prosecutor and it did not see any

improper signaling. Juan was unconvinced, and asked the court for

permission to "raise his hand" when he saw the prosecutor making

these signals. The district court was having none of it, though,

and chastised Juan for this request. It told Juan to not even

think about it and threatened that if he "dare[d] to disrupt th[e]

courtroom," the district court would "force" Juan into his chair or

make him watch the trial "in front of a TV set in the jail."23

23 While the district court forbade Juan from disrupting

proceedings by raising his hand, it did offer Juan the opportunity

to file a motion regarding the alleged hand gestures. Juan

declined to do so.

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b. These Admonitions Did Not Evince Bias

"[J]udicial remarks during the course of a trial that are

critical or disapproving of, or even hostile to, counsel, the

parties, or their cases, ordinarily do not support a bias or

partiality challenge." Liteky v. United States, 510 U.S. 540, 555

(1994). There is a difference "between expressions of impatience,

annoyance or ire, on the one hand," which are permissible, "and

bias or partiality, on the other hand," which are forbidden. 

Candelaria-Silva, 166 F.3d at 35 (internal quotation marks

omitted).

Here, the allegations raised by Juan fall into the former

category. Both actions -- warning Juan not to stare at the jury

and prohibiting him from "raising his hand" in the middle of

questioning by the government -- are simply efforts at courtroom

administration which are well within the district court's

discretion. Liteky, 510 U.S. at 556. Even the district court's

alleged threat that if Juan "dare[d] to disrupt th[e] courtroom,"

the district court could "force" Juan into his chair or make him

watch the trial "in front of a TV set in the jail" is nothing more

than an attempt to get Juan to behave and not disrupt proceedings. 

To be sure, these admonishments are stern and somewhat harsh. But

that alone is insufficient to establish bias. See id. ("A judge's

ordinary efforts at courtroom administration -- even a stern and

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short-tempered judge's ordinary efforts at courtroom administration

-- remain immune."); Candelaria-Silva, 166 F.3d at 35.

Moreover, the district court went out of its way to

ensure that the jury did not become aware of these admonishments --

it sent notes to Juan's counsel instructing Juan not to stare at

the jury, and the discussion involving Juan raising his hand

occurred at a sidebar. Given this discretion, we fail to see how

Juan was prejudiced by the comments. See Candelaria-Silva, 166

F.3d at 35 ("[A] trial judge's frustration displayed at sidebar

does not deprive a defendant of a fair trial."); Logue, 103 F.3d at

1046 (holding that a statement made outside "the presence of the

jury does not irretrievably taint the trial").24

3. The District Court's Treatment of Alleged Improper 

 Jury Contact

Finally, Juan and Cummings (through his supplemental pro

se brief) also contend that the district court was biased in its

24 Unconnected to any particular concern about these admonitions,

Juan also contends that the district court was biased based on

statements that Juan says show it had "formed an opinion with

regards to the ultimate issue of [Juan's] guilt." Juan bases that

contention on statements the district court made late in the trial

-- out of the hearing of the jury -- including telling Juan that

Juan was "in charge in Villas De Monterrey." Even if these

statements could be taken to suggest that the district court had by

that point formed an opinion as to Defendants' guilt, the law is

clear that a judge who over the course of the trial becomes

"exceedingly ill disposed towards the defendant, who has been shown

to be a thoroughly reprehensible person," is "not thereby recusable

for bias or prejudice, since his knowledge and the opinion it

produced were properly and necessarily acquired in the course of

the proceedings . . . ." Liteky, 510 U.S. at 550-51.

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treatment of Juan's allegation of improper contact between the

prosecutor and a juror.

a. Relevant Facts

During trial, Juan's counsel advised the district court

of an alleged prohibited contact between the prosecutor and a juror

in the cafeteria in which the two discussed the weapons in the

case. In response, the district court questioned the prosecutors

and the court security officer, all of whom denied the contact. It

also agreed to hear the testimony of a witness, but would only do

so in open court since the public had a right to know what was

occurring. When Juan's counsel proffered that the witness was

unwilling to do so (but would testify to the court in chambers),

the district court denied the motion, finding the allegation was

unsubstantiated and "smells like a red herring." It added that "it

is natural for somebody who is in that circumstance to try to do

whatever it takes to try to derail the procedure" and that it would

"believe the word of an official Assistant U.S. Attorney, two of

them, that says this did not happen."25

25 These comments were based, at least in part, on the fact that

the alleged conversation -- that the juror allegedly told the

Assistant U.S. Attorney that he "would sign[] whatever was

necessary for the weapons that were in evidence" -- does not even

make sense. For that reason, the district court did not clearly

err in concluding that no inappropriate contact had occurred, and

so we also reject Cummings's pro se argument that this incident

deprived him of an impartial jury.

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b. The District Court's Treatment of the 

 Allegation Did Not Evince Bias

There is nothing here to suggest bias on the part of the

district court. The court took the allegation seriously and was

willing to hold a hearing. It questioned the Assistant U.S.

Attorney and the court security officer, and it was willing to

question another witness as well. That the district court refused

to close the courtroom to question this witness does not show bias;

rather, it is just an example of the district court exercising its

"wide discretion to determine the scope of [a] resulting inquiry

and the mode and manner in which it will be conducted." United

States v. Paniagua-Ramos, 251 F.3d 242, 250 (1st Cir. 2001). Juan

and Cummings simply disagree with the court's resolution of the

issue, which is insufficient to establish bias. See Liteky, 510

U.S. at 555 ("[J]udicial rulings alone almost never constitute a

valid basis for a bias or partiality motion.").

4. The Cumulative Effect of These Circumstances Did Not 

 Evince Bias

Even though each of the allegations raised by Defendants

does not, on its own, show bias, we must still consider whether

these allegations in the aggregate demonstrate judicial bias. See

Candelaria-Silva, 166 F.3d at 35; Logue, 103 F.3d at 1045. After

a thorough review of the record, we are convinced that they do not. 

These isolated events, none of which showed bias, did not somehow

combine to create such a biased atmosphere that Defendants were

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deprived of a fair trial. Accordingly, we reject Defendants'

arguments regarding judicial bias. And because we find no credible

claim for judicial bias, the district court did not abuse its

discretion in denying Defendant's recusal motion due to bias. See

United States v. Pulido, 566 F.3d 52, 62 (1st Cir. 2009) ("We

review a ruling on a motion to recuse for abuse of discretion

. . . . [and] will sustain the district court's ruling unless we

find that it cannot be defended as a rational conclusion supported

by [a] reasonable reading of the record." (internal quotation marks

omitted)).

D. The Sufficiency of the Evidence for Cummings's Machinegun

 Convictions

Counts Five and Six of the superseding indictment charged

Cummings with illegal possession of a machinegun and possession of

firearms (including machineguns) in furtherance of a drug

trafficking crime, respectively. Cummings challenges his

convictions on these counts, arguing that the evidence was

insufficient to establish his knowledge that the firearms were

machineguns. We review these sufficiency claims de novo. United

States v. Shaw, 670 F.3d 360, 362 (1st Cir. 2012).

1. Relevant Facts

On May 2, 2012, while executing a search warrant at the

Housing Project, law enforcement officials discovered a closed red

and black bag in Cummings's apartment. The bag contained four

firearms, two of which were .40-caliber Glock pistols with visible,

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external chips which converted the pistols into automatic firearms. 

During his subsequent interrogation, Cummings admitted that he

often "stored weapons and drugs for the organization" and was going

to be paid "around $400" for storing this particular bag. At

trial, Rivas, one of the cooperating witnesses, testified that he

had seen Cummings testing fully automatic weapons, including a

black pistol which was "either a .40 or .45" caliber.

2. The Evidence Was Sufficient to Convict Cummings

In reviewing claims of insufficiency, "we consider the

evidence, including all reasonable inferences drawn therefrom, in

the light most favorable to the jury's verdict." Id. So long as

"any reasonable jury could find all the elements of the crime

beyond a reasonable doubt, we must uphold the conviction." United

States v. Lizardo, 445 F.3d 73, 81 (1st Cir. 2006).

Here, Cummings concedes that the evidence established

that he possessed firearms and possessed firearms in furtherance of

a drug-trafficking crime. He argues, however, that the evidence

was insufficient to establish the additional element that he knew

the firearms had been modified to fire automatically, thus bringing

them under the definition of a machinegun. See United States v.

Nieves-Castaño, 480 F.3d 597, 599 (1st Cir. 2007) (explaining that

to convict under 18 U.S.C. § 922(o), the "government must . . .

prove beyond a reasonable doubt that the defendant knew the weapon

had the characteristics that brought it within the statutory

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definition of a machinegun." (internal quotation marks omitted)). 

According to Cummings, the government provided no evidence that he

opened up the bag or was told what the bag contained, and thus

there is no evidence to show that he knew the guns were machineguns

and not regular firearms.

Though a close call, we disagree. This case is quite

similar to a previous case, United States v. Azubike, in which a

defendant convicted of conspiracy to possess with the intent to

distribute narcotics argued that while the evidence established

that he knew the suitcase he was transporting contained something

illegal, the evidence was insufficient to prove beyond a reasonable

doubt that he knew the suitcase contained a controlled substance. 

564 F.3d 59, 61-62, 64 (1st Cir. 2009) ("Azubike II"); 504 F.3d 30,

32-36 (1st Cir. 2007) ("Azubike I"). Two separate panels of this

court upheld the conviction on sufficiency of the evidence

grounds,26 explaining that a number of factors and inferences made

it possible for a jury to conclude that Azubike would likely have

known the contents. These included a recorded phone conversation

in which Azubike did not want to talk about the "stuff" over the

phone, the close relationship between Azubike and the conspiracy's

26 Azubike's first conviction was upheld on sufficiency grounds but

reversed due to prosecutorial misstatements during closing

arguments. Azubike I, 504 F.3d at 36, 40-42. After Azubike was

convicted a second time, we once again concluded that the evidence

was sufficient to support the conviction. Azubike II, 564 F.3d at

64-66.

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leaders, the fact that Azubike was entrusted with a large amount of

drugs (thus suggesting he was trustworthy), and the modus operandi

of the crime. Azubike II, 564 F.3d at 64-65; Azubike I, 504 F.3d

at 37-38.

Many of those same factors are present here. First,

Cummings admitted during his interrogation that he often stored

guns and drugs for the organization. The repetitive nature of this

process (his modus operandi) could lead a jury to infer that simply

by being handed the bag and being told how much he would be

expected to be paid, Cummings would understand what the bag

contained.

Second, the fact that Cummings had stored weapons and

drugs before suggests that he was trusted by his co-conspirators,

and positions of trust often come with increased access to

information. See Azubike I, 504 F.3d at 37 ("[A] reasonable

inference of knowledge arises when the defendant is trusted with

possession of a large amount of drugs. This is because drug

organizations do not usually take unnecessary risks by trusting

critical transactions to outsiders."); see also Azubike II, 564

F.3d at 65.

Third, the evidence established that Cummings and

Christopher -- one of the leaders of the organization -- were

close. First, remember the phone calls between Christopher and

Cummings while Cummings was incarcerated. Not only did Christopher

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attempt to pay for Cummings's counsel, but he also confided in

Cummings that he believed members of the organization knew that

Christopher was going to be targeted, and that retribution would be

taken on those who were not loyal. Second, Díaz testified that he

would use Cummings's car when going on rounds for Christopher. 

That Cummings was willing to give up his car so that Christopher

could order these activities further supports a close relationship

between the two. Given this apparent closeness, a jury could

rationally conclude that Christopher would have confided in him

regarding the details of the bag. See Azubike II, 564 F.3d at 64-

65; see also Azubike I, 504 F.3d at 37.

Finally, Rivas testified that Cummings had tested the

organization's weapons in the past and had been seen firing .40 or

.45 caliber black pistols which had been modified to fire

automatically shortly before Cummings was given the bag seized

during the May 2 search. Given that Cummings had been seen with

machineguns previously, a reasonable jury could infer that Cummings

knew that these were the types of guns he was being asked to

safeguard.27

27 This last point is the key difference between the present case

and Nieves-Castaño, the case relied upon by Cummings. In NievesCastaño, we found insufficient evidence of knowledge because the

modifications to make the gun fire automatically were all internal

and there was no evidence that the defendant was knowledgeable

about firearms or had fired the AK-47 rifle previously. 480 F.3d

at 600-02. Here, by contrast, the government presented evidence

that Cummings had a practice of storing firearms for the

organization and had been seen testing automatic weapons shortly

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Though far from the strongest of cases, we believe that

the cumulation of all of this circumstantial evidence is just

enough to sustain the jury's verdict. See Shaw, 670 F.3d at 362

("Individual pieces of evidence viewed in isolation may be

insufficient in themselves to prove a point, but in cumulation may

indeed meet the mark."). Accordingly, we reject Cummings's

challenge.

E. The Courtroom Closings

Christopher, meanwhile, also argues that the district

court violated his Sixth Amendment right to a public trial when it

removed his wife and children from the courtroom. We review this

allegation de novo. United States v. DeLuca, 137 F.3d 24, 32-33

(1st Cir. 1998).

1. Relevant Facts

During the fourth day of trial, the district court

ordered that Christopher's wife and two minor children -- aged ten

and fourteen -- be removed from the courtroom. Christopher's

counsel learned of this exclusion after the day had ended, so he

brought the issue to the district court's attention at the start of

day five. Upon raising the issue, the district court acknowledged

that it had ordered all three family members removed, stating that

they had been disruptive. Regarding Christopher's wife, the

before the search. Thus, while there was no evidence from which to

infer knowledge in Nieves-Castaño, there was here.

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district court explained that it had observed her "moving her lips"

at the witness with "great distaste" and that the witness had seen

her doing so. As to the children, the district court explained

that they "were disrupting a little bit." It added that it

"d[id]n't want the children here, because this is not a place for

children . . . . [to] listen to th[ese] kind of conversations that

are recorded, nor to see drugs distributed at a drug point . . . .

[b]ecause I don't think that -- nobody should validate or let

children be exposed to that to begin with." It went on to note

that it would "never let a child of mine listen to this thing, nor

hear the language spoken on this tape."

After hearing this explanation, Christopher's counsel

asked if Christopher's wife was barred from returning, to which the

district court responded in the negative. The court instructed

Christopher's counsel that if Christopher's wife "wants to come in

and behave like a person should . . . and stay seated and put,"

then she could come back. However, it warned that a court officer

would be seated behind Christopher's wife and "if this happens

again, [the court will] get her out, and she will be banned

forever." Christopher's counsel never asked if the children could

return, nor did he object to their continued exclusion.

2. Christopher's Sixth Amendment Right Was Not Violated

The Sixth Amendment guarantees that "[i]n all criminal 

prosecutions, the accused shall enjoy the right to a speedy and

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public trial." U.S. Const. amend. VI. This right was "'created

for the benefit of the defendant,' as openness in criminal

proceedings 'encourages witnesses to come forward,' 'discourages

perjury,' and 'ensure[s] that judge and prosecutor carry out their

duties responsibly.'" Bucci v. United States, 662 F.3d 18, 22 (1st

Cir. 2011) (quoting Waller v. Georgia, 467 U.S. 39, 46 (1984)).

Accordingly, closing a criminal trial to the public is

rare, and before a closure is permitted, a four-part inquiry must

be satisfied:

[1] the party seeking to close the hearing

must advance an overriding interest that is

likely to be prejudiced, [2] the closure must

be no broader than necessary to protect that

interest, [3] the trial court must consider

reasonable alternatives to closing the

proceeding, and [4] it must make findings

adequate to support the closure.

Id. (citing Waller, 467 U.S. at 48).

This test, however, applies to total closures -- where

all members of the public are excluded during some portion of the

trial. Id. "In partial closures -- i.e., where courtroom access

is restricted but some members of the public are permitted to

attend -- this court and several of our sister circuits have held

that a 'substantial' interest, rather than a 'compelling' one, will

justify [a] partial closure." Id. Because only Christopher's wife

and children were removed from the courtroom, we analyze the

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exclusions under the modified Waller test for partial closures.28

Id. at 27.

a. Christopher's Wife

The exclusion of Christopher's wife complied with the

modified Waller test. First, the district court explained that it

observed Christopher's wife making faces and mouthing words of

disapproval at the witness, and that the district court believed

that the witness saw these actions. We agree that such actions

could be seen as an attempt at witness intimidation, and the

prevention of witness intimidation is clearly a "substantial"

interest. See Martin v. Bissonette, 118 F.3d 871, 873 (1st Cir.

1997) (upholding the exclusion of defendant's family members during

the reopening of a witness's testimony where the witness stated

that her initial testimony had been untrue because she had been

given looks by defendant's family and felt intimidated); United

States v. Brazel, 102 F.3d 1120, 1155-56 (11th Cir. 1997)

(requiring that the public identify themselves before entering the

courtroom constituted a partial closure but was permissible because

the district court observed individuals coming into the courtroom

and staring at witnesses); Woods v. Kuhlmann, 977 F.2d 74, 77-78

(2d Cir. 1992) (upholding a partial, temporary closure where

28 We reject the government's argument that there was never a

closure of any kind. Christopher's wife and children were removed

from the courtroom and forbidden from returning on that day. The

courtroom was closed to them, and thus a partial closure existed.

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defendant's family was excluded because, after observing the family

members and the witness and having a brief exchange with the

witness, the district court believed family members were

intimidating witnesses).

Second, we believe that the district court's requirement

that Christopher's wife leave until she promised to behave herself

was "no broader than necessary" to protect this substantial

interest. As soon as Christopher's wife stopped mouthing words and

staring at witnesses, she was to be allowed back in, and thus, the

removal was "neither broader nor longer than was reasonably

necessary to end this . . . harassment and secure the witness's

accurate testimony." Martin, 118 F.3d at 875.

Third, while it would have been better for the district

court to have explicitly stated that it had considered reasonable

alternatives to removing Christopher's wife, we have previously

held that such a consideration can be implicit. See id. at 875 &

n.4. This is especially true here, where no reasonable and lessbroad alternative existed. Christopher suggests that the court

should have publicly admonished his wife and warned her to stop

before removing her, as opposed to making that a condition for

reentry, and that it should have questioned the witness to

determine whether he had seen Christopher's wife's actions and been

intimidated by them. However, we believe neither of these

alternatives to be reasonable under the circumstances. The

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district court was concerned that the witness was being intimidated

and wanted to take action to ensure that that did not happen. Had

the court stopped the proceedings, questioned the witness, and

scolded Christopher's wife, all this would have done is disrupt the

proceedings, draw attention to the situation, and possibly even

enhance the intimidation felt by the witness. "Nothing in Waller

or in any other case cited by [Christopher] suggests that a trial

judge, presented with evidence of . . . witness intimidation . . .

must undertake an assessment of the exact level of affrightment

. . . before closing a courtroom." Id. at 875. In fact, the law

is to the contrary. See id.

Finally, as already explained, the district court

informed Christopher's counsel that Christopher's wife was removed

because she was staring at the witness "moving her lips" with

"great distaste" and that the witness had seen her doing so. This

is an adequate finding to support the partial closure. See Martin,

118 F.3d at 873; Brazel, 102 F.3d at 1155-56; Kuhlmann, 977 F.2d at

77-78.

Accordingly, the exclusion of Christopher's wife during

the fourth day of trial met the modified Waller test and did not

violate Christopher's Sixth Amendment right to a public trial.

b. Christopher's Children

In stark contrast to his wife's exclusion, where

Christopher's counsel asked specifically whether she was barred and

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if she could return, Christopher's counsel remained silent with

regards to Christopher's children and never sought to have them

readmitted. This silence is fatal to Christopher's claim. When

the "subject matter [is] unmistakably on the table, and the

defense's silence is reasonably understood only as signifying

agreement that there was nothing objectionable," the issue is

waived on appeal. United States v. Christi, 682 F.3d 138, 142 (1st

Cir. 2012); see also United States v. Acosta-Colón, 741 F.3d 179,

187 (1st Cir. 2013) ("The judge put the exclusion matter squarely

on the table for all the defendants' lawyers at sidebar . . . . 

Each attorney had the chance to speak up. . . . So [defendant's

counsel's] silence constitutes classic waiver . . . ."); Martineau

v. Perrin, 601 F.2d 1196, 1199-1200 (1st Cir. 1979). Given that

the closure issue was front-and-center -- indeed, it was the entire

point of the colloquy -- Christopher's counsel's silence as to

Christopher's children can only be understood as implicit agreement

that they should remain barred from the courtroom. Accordingly,

this argument is nothing but an "afterthought on appeal," and thus

waived. See Levine v. United States, 362 U.S. 610, 619-20 (1960)

("Due regard generally for the public nature of the judicial

process does not require disregard of the solid demands of the fair

administration of justice in favor of a party who, at the

appropriate time and acting under advice of counsel, saw no

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disregard of a right, but raises an abstract claim only as an

afterthought on appeal.").

We pause for a moment, however, to sound a note of

caution. A defendant has a clear right to have his family present

during proceedings -- and we know of no exception for minor

children. See United States v. Negrón-Sostre, --- F.3d ---, Nos.

10-1974, 10-2042, 10-2055, 10-2057, 10-2129, 2015 WL 3898794, at *1

(1st Cir. Jun. 25, 2015) ("[W]ithout exception all courts have held

that an accused is at the very least entitled to have his friends,

relatives and counsel present, no matter with what offense he may

be charged." (quoting In re Oliver, 333 U.S. 257, 271-72 (1948)

(internal quotation marks omitted))); see also United States v.

Rivera, 602 F. App'x 372, 377 (9th Cir. 2015); Downs v. Lape, 657

F.3d 97, 108 (2d Cir. 2011) (Chin, J., dissenting). Whether any

individual child should be allowed to observe proceedings and

possibly be exposed to harsh language, violence, and other untoward

situations is a decision for that child's parents, not for the

district court.29 The court's troubling blanket view that the

courtroom was "not a place for children" is not only overly

paternalistic, but also potentially in contradiction with the Sixth

Amendment.

29 Indeed, the child's parents may find such observation to have

educational benefits despite the adult themes. Observing the

judicial system in action can be a valuable civics lesson for a

person of any age, and especially for an adolescent.

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F. Cumulative Error

Finally, Defendants argue that even if no single error

warrants reversal, the cumulative effect of these errors form an

"interconnected web of unfairness." While we agree that

"[i]ndividual errors, insufficient in themselves to necessitate a

new trial, may in the aggregate have a more debilitating effect,"

United States v. Sepúlveda, 15 F.3d 1161, 1195-96 (1st Cir. 1993),

that is not the situation presently before us.

Defendants allege a host of errors, but only one has any

potential merit: Agent James's testimony as to Christopher's

involvement in the conspiracy which was both beyond his personal

knowledge and beyond the scope of the question asked. But as we

discussed above, any error was harmless. And there can be no

"cumulative" error when multiple errors do not exist. See United

States v. DeSimone, 699 F.3d 113, 128 (1st Cir. 2012) ("The

cumulative error doctrine is of no use to [defendant] because the

only identified error was harmless."); United States v. Stokes, 124

F.3d 39, 43 (1st Cir. 1997) ("By definition, cumulative-error

analysis is inappropriate when a party complains of the cumulative

effect of non-errors.").

IV. Sentencing Issues

In addition to attacking their convictions, Cummings and

Christopher also challenge their sentences. We review these

challenges under a deferential abuse-of-discretion standard, the

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goal being to ensure that the sentence "is both procedurally sound

and substantively reasonable." United States v. Trinidad-Acosta,

773 F.3d 298, 308 (1st Cir. 2014) (quoting United States v. DávilaGonzález, 595 F.3d 42, 47 (1st Cir. 2010)) (internal quotation

marks omitted); see also United States v. Maisonet-González, 785

F.3d 757, 762 (1st Cir. 2015). Because both Defendants only

challenge the procedures by which the district court arrived at

their respective sentences, that is where we focus our discussion.

A sentence is procedurally sound so long as the district

court complies with the "'specifically delineated roadmap'" we have

previously laid out. United States v. Serunjogi, 767 F.3d 132, 142

(1st Cir. 2014) (quoting United States v. Madera-Ortiz, 637 F.3d

26, 29 (1st Cir. 2011)). This entails calculating the applicable

Guidelines Sentencing Range ("GSR"), addressing any objections to

the probation department's Presentence Investigation Report

("PSR"), giving both parties an opportunity to argue for whatever

sentence they deem appropriate, considering the 18 U.S.C. § 3553(a)

sentencing factors, and explaining the reasoning behind the chosen

sentence. See Gall v. United States, 552 U.S. 38, 49-50 (2007). 

Deviations from this roadmap -- such as "failing to calculate (or

improperly calculating) the Guidelines range, treating the

Guidelines as mandatory, failing to consider the section 3553(a)

factors, selecting a sentence based on clearly erroneous facts, or

failing to adequately explain the chosen sentence" -- constitute

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procedural error. Trinidad-Acosta, 773 F.3d at 309 (internal

quotation marks omitted); see also Gall, 552 U.S. at 51. Though

our overall review of a sentencing is for abuse of discretion, this

standard is actually multifaceted: "[W]e review factual findings

for clear error, arguments that the sentencing court erred in

interpreting or applying the guidelines de novo, and judgment calls

for abuse of discretion simpliciter." Serunjogi, 767 F.3d at 142

(alteration in original). Notably, when a defendant is convicted

of more than one count, a district court is expected to render a

separate sentence on each count. United States v. Zavala-Martí,

715 F.3d 44, 51 n.6 (1st Cir. 2013).

A. Cummings's Sentence

In his supplemental pro se brief, Cummings argues that

his sentence was procedurally flawed because the district court

erred in calculating the Base Offense Level for Count Seven (the

drug conspiracy conviction). Specifically, Cummings contends that

he was not automatically responsible for all of the drugs involved

in the conspiracy simply because he was convicted as a coconspirator, and the district court's failure to make an

individualized finding as to the amount specifically attributable

to him was error. This argument, while right on the law, is wrong

on the facts.

Under the Sentencing Guidelines, a defendant's Base

Offense Level for drug offenses depends mostly on the quantity of

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the drugs involved in the offense. U.S.S.G. § 2D1.1(c). 

Accordingly, in order to properly calculate the GSR, the district

court must first make "an individualized finding as to drug amounts

attributable to, or foreseeable by, that defendant." United States

v. Vázquez-Larrauri, 778 F.3d 276, 291 (1st Cir. 2015) (internal

quotation marks omitted). Drug amounts are foreseeable to a coconspirator so long as he or she "could reasonably have anticipated

[the drugs] would be within the ambit of the conspiracy." United

States v. Santos, 357 F.3d 136, 140 (1st Cir. 2004) (citing

U.S.S.G. § 1B1.3(a)(1)(B) cmt. 2).

Here, the PSR attributed over 538,000 kilograms of

marijuana equivalent30 to Cummings, qualifying him for the highest

Base Offense Level -- Level 38. U.S.S.G. § 2D1.1(c). When

Cummings objected to this calculation, the district court rejected

his argument, responding that "no matter how you look at this, in

the context of what the conspiracy rules are and foreseeability and

all of that, he's a[n offense] level [of] 38." Though perhaps not

the clearest or most detailed of explanations, this statement shows

that, contrary to Cummings's contention, the district court did

30 Under the Sentencing Guidelines, when multiple drugs are

involved, the quantity of each drug is converted into its marijuana

equivalent and then added together to obtain the total drug

quantity. See U.S.S.G. § 2D1.1; United States v. Ventura, 353 F.3d

84, 87 (1st Cir. 2003).

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consider whether or not the entire drug amount was individually

attributable to Cummings, and the court concluded that it was.31

Because the district court did address the drug quantity

attributed to Cummings, we are left to determine whether the court

committed clear error in adopting the PSR's finding. It did not. 

The evidence showed that Cummings was an enforcer in the

organization, sometimes delivered drugs, and would often store

drugs for the conspiracy. With all of these roles, Cummings could

reasonably have anticipated that such a large quantity of drugs

would be involved in the conspiracy, and thus there is no error in

concluding that that entire amount was foreseeable to him. See

Santos, 357 F.3d at 140.

In any event, even if the district court had failed to

make an individualized finding, the error would have been harmless. 

See Vázquez-Larrauri, 778 F.3d at 291 (explaining that in order to

vacate a sentence, a defendant must show that an error occurred and

31 At the very least, the statement suggests the district court

believed the amount to be a fair approximation of the drug quantity

given the huge discrepancy between the threshold amount of

marijuana equivalency and the amount attributed to Cummings in the

PSR. See United States v. Mullins, 778 F.3d 37, 42 (1st Cir. 2015)

(explaining that a district court need not make an exact finding as

to drug quantity but rather may base its calculation on

"approximations," so long as those approximations "represent

reasoned estimates of drug quantity." (internal quotation marks

omitted)). Cummings's counsel seemed to concede this point during

the sentencing hearing, agreeing that since the PSR attributed

538,000 kilograms of marijuana equivalent to Cummings and the

threshold for the Base Offense Level of 38 was 30,000 kilograms,

there was no point "quibbling at the margins."

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that it affected the defendant's substantial rights). The verdict

form convicting Cummings explicitly found that at least 280 grams

of narcotics were involved in the conspiracy, thus triggering a

ten-year mandatory minimum sentence. See 21 U.S.C. § 841(b)

(1)(A)(iii). Since Cummings was only sentenced to 120 months (or

ten years) on this count, his sentence would have been the same

regardless of the individualized drug finding.

Accordingly, Cummings's sentence was procedurally sound.

B. Christopher's Sentence

Christopher was convicted on Count Seven -- the drug

conspiracy -- and Count Nine -- conspiracy to possess firearms in

furtherance of a drug trafficking crime -- of the superseding

indictment, and the district court imposed a joint "life sentence."

Christopher argues that this sentence was procedurally flawed for

a number of reasons.

First, he contends that the district court relied on the

PSR for a different defendant, and thus the district court's

sentence was tailored towards another defendant, and not

Christopher. This argument is easily dispensed with. Though the

district court did initially have the wrong PSR in front of it,

this mistake was quickly corrected. By the time the district court

made its comments regarding the Guidelines calculation and

imposition of sentence, it had been given and had reviewed the

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correct PSR. Thus, the sentence was individually tailored to

Christopher.

Second, Christopher argues that the district court failed

to consider his objections to the GSR calculation on his drug

conspiracy conviction (Count Seven), and that this failure resulted

in an incorrect calculation. At the outset of the sentencing

proceedings, the district court asked if there was "any objection

that survives," to which Christopher responded that he had filed a

sentencing memorandum containing all of his arguments for an

eighteen-to-twenty-year sentence. The district court replied,

"Okay. Very well" and made no other specific reference to the

memorandum. Later in the proceedings, however, the district court

stated "the calculations regarding drugs are totally correct, and

there's no objection about that." This latter statement was

clearly erroneous, as Christopher had indeed objected to the

calculation in his sentencing memorandum and had told the district

court as much earlier in the proceeding.

This misstatement, however, was harmless because

Christopher's objection was legally incorrect. Christopher

contended that under Alleyne v. United States, 133 S. Ct. 2151

(2013), the jury was required to find the specific drug quantity he

was responsible for, so any drug findings by the district court (or

in the PSR) could not be considered. However, all Alleyne requires

is for the jury to find that the amount of drugs is greater than

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that necessary for the mandatory minimum in order for that

mandatory minimum to be imposed. See United States v. Razo, 782

F.3d 31, 40 (1st Cir. 2015) ("[Alleyne] held that a jury finding

was required to trigger a mandatory minimum.").

The jury found that Christopher possessed at least five

kilograms of cocaine, so the district court's finding that the PSR

was correct in its calculation of a drug quantity significantly

more than that32 is entirely consistent with the jury finding -- and

entirely appropriate. See United States v. Ramos-González, 775

F.3d 483, 508-09 (1st Cir. 2015). There was thus no error in the

district court's calculation of a Total Offense Level of 43,33

corresponding to a GSR of life imprisonment.

In addition to challenging the GSR calculation for Count

Seven, Christopher also alleges that the district court erroneously

ignored the § 3553(a) factors and considered the life sentence to

be mandatory. He bases this contention on the district court's

statement that it was "imposing the mandatory life sentence." 

However, immediately following this statement, the district court

clarified that the sentence was "[m]andatory in the sense that

32 The PSR concluded that Christopher was responsible for

1,076,248.4 kilograms of marijuana equivalent over the life of the

conspiracy. Of that amount, 1,053,580.4 kilograms was attributable

to some form of cocaine.

33 Technically, Christopher was at a Total Offense Level of 48, but

because the highest Total Offense Level is 43 the Guidelines call

for reducing it to 43.

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that's what the guidelines call for." Indeed, the court went on to

state that there was "nothing before me that would tell me that I

should do anything different by departure or by variance, and I

will not." Thus, though the district court did use the term

"mandatory," it is clear from its clarification and decision not to

impose a variance that this was simply a misstatement, and that the

court was well aware that the life sentence was not mandatory.

Moreover, the court's comment that there was "nothing

before me that would tell me that I should do anything different"

was most likely a reference to, and rejection of, the § 3553(a)

sentencing factor arguments contained in Christopher's sentencing

memorandum. While we wish this statement was clearer and more

explicit, it was sufficient. See United States v. Savoie, 985 F.2d

612, 621 n.11 (1st Cir. 1993) (rejecting defendant's argument that

the district court failed to address the § 3553(a) factors given

"the pointed comments delivered by the district court at

sentencing"); see also United States v. Ocasio-Cancel, 727 F.3d 85,

91 (1st Cir. 2013) ("[A] within-the-range sentence usually demands

a less detailed explanation than a variant sentence.").

Finally, Christopher argues that the district court erred

in failing to calculate the applicable GSR for Count Nine, instead

choosing to "group[]" the two counts together since there was "no

point" in calculating the sentence for each count separately. We

agree this was error. "[T]he proper procedure" during sentencing

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"is to render a separate sentence on each count." Zavala-Martí,

715 F.3d at 51 n.6 (internal quotation marks omitted). This is

especially true here where Count Nine did not authorize a life

sentence; rather, it carries a twenty-year maximum penalty.34 See

Almonte-Núñez, 771 F.3d at 92 ("[C]ollateral consequences may arise

as a result of an above-the-maximum sentence imposed on a

particular count. . . . It strikes us as both unwise and unfair to

place the risk of such harm on the defendant where, as here, the

excessive sentence is easy to correct.").

Accordingly, we vacate Christopher's sentence and remand

so that the district court may impose an individual sentence on

each of the two counts of conviction.

V. Conclusion

For the foregoing reasons, we affirm the convictions of

all three Defendants. We also affirm Cummings's sentence, but we

vacate and remand Christopher's sentence so that the district court

can impose an individual sentence on each count.

AFFIRMED IN PART, VACATED AND REMANDED IN PART.

34 To the extent the district court was attempting to apply

U.S.S.G. § 3D1, which allows different counts to be grouped

together for determining the Total Offense Level, that would not

justify the imposition of a sentence on Count Nine in excess of the

statutory maximum. As we explained in United States v. AlmonteNúñez, "Guideline calculations simply cannot usurp a maximum level

of imprisonment established by Congress. Nor does grouping by some

mysterious alchemy blend the maximum penalties for each of the

grouped counts." 771 F.3d 84, 92 (1st Cir. 2014) (internal

citation omitted).

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Case: 13-2284 Document: 00116869411 Page: 77 Date Filed: 07/30/2015 Entry ID: 5926431