United States Court of Appeals

For the First Circuit

No. 21-1880

UNITED STATES OF AMERICA,

Appellee,

v.

DARREN FRANKLIN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Barron, Chief Judge,

Selya and Howard, Circuit Judges.

Jonathan Shapiro, with whom Mia Teitelbaum and Shapiro & 

Teitelbaum LLP were on brief, for appellant.

Karen L. Eisenstadt, Assistant United States Attorney, with 

whom Rachael S. Rollins, United States Attorney, was on brief, for 

appellee.

October 20, 2022
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SELYA, Circuit Judge. Defendant-appellant Darren 

Franklin challenges the district court's decision to admit and 

consider hearsay evidence when revoking his term of supervised 

release. After careful consideration, we find his challenge 

wanting and affirm the judgment below. 

I

Drawing from the record compiled in the district court, 

we briefly rehearse the relevant facts. On April 30, 2007, the 

appellant was convicted by a jury of possessing and distributing 

cocaine base (crack cocaine) and of being a felon in possession of 

ammunition. See 21 U.S.C. § 841(a)(1); 18 U.S.C. § 922(g)(1). 

The district court sentenced him to serve a thirty-year term of 

immurement, to be followed by a twelve-year term of supervised 

release.

Following the passage of the First Step Act, Pub. L. No. 

115-391, 132 Stat. 5194, the appellant moved to have his sentence 

reduced. On October 24, 2019, the district court granted that 

motion, resentencing him to a prison term of eighteen years (which 

was effectively a sentence of time served). On November 1, 2019,

the appellant began serving his twelve-year term of supervised 

release under several conditions — among them, that he not commit 

any federal, state, or local crime. 

On March 17, 2021, United States Probation Officer Kara 

Lightowler paid the appellant an early morning visit at his home 
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in Quincy, Massachusetts, where he resided with his longtime 

girlfriend, Nicola Clark, and their children. Lightowler 

testified that the appellant greeted her when she arrived, and 

they made small talk for a few moments before she asked him to 

provide a urine sample for a routine toxicology screening. While 

he went to the bathroom, Clark emerged from the bedroom and 

appeared — according to Lightowler — to be in a state of some 

distress. Clark indicated that she wanted to speak privately with 

Lightowler, mouthing the words silently in apparent fear of the 

appellant overhearing their exchange. Lightowler gave Clark her 

business card.

When the appellant returned from the bathroom, 

Lightowler, sensing tension within the home and concerned for her 

own safety, asked if she could speak with him outside. There, the 

appellant told her that his relationship with Clark had become 

strained and that he wished to move out of the home. Lightowler 

informed him that the probation office would need to be apprised 

of such a move. Their conversation then turned to more quotidian 

affairs. Once Lightowler left the residence, she called and 

messaged Clark, but received no response. 

Not long thereafter, Clark called 911, requesting

emergency police assistance. She said that the appellant was 

involved in illegal activity — specifically, drug dealing — and 

that he had two weapons, possibly guns, at least one of them stowed 
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in a black bag. She also said that she had been trying for some 

time to get him to leave the home and that when she had attempted 

to move his belongings out of the home that morning, he pushed 

her. She exhorted the police to come quickly as she suspected 

that he was hiding the weapons and drugs as she spoke. She also 

asked that the officers withhold from him that she was the one who 

had called 911, saying, "I'm scared. I don't want nothing to 

happen to me. So don't let him know." 

Officer Christian Donovan of the Quincy Police 

Department was among those who responded to the 911 call. He 

testified that when he and the other officers arrived, the 

appellant was standing beside his car, which was parked with its 

tailgate open by the front porch at the top of the driveway. While 

the other officers spoke with the appellant, Donovan entered the 

home to speak with Clark. 

Inside, Clark's teenage son was consoling her, telling 

her to cooperate with the police. According to Donovan, Clark was

at first hesitant to speak, saying that she did not want the 

appellant to see her talking with police officers. Even so, she 

proceeded to tell him that she and the appellant had argued that 

morning both about money that he allegedly had taken from her and 

about her desire that he leave the home. She said that during the 

argument, the appellant had shoved her approximately five times. 

When she picked up the phone to call 911, he began to gather his 
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belongings as a prelude to leaving the residence. At that time, 

she saw him pick up a small black rectangular pouch from which 

protruded the butt-end of a gun. 

The police arrested the appellant on charges of domestic 

assault and battery based on the allegation that he had shoved 

Clark during their argument. Donovan then searched the area around 

the house with a dog specially trained to detect explosives and 

ballistics. After finding nothing in the backyard or street, 

Donovan led the dog to the front porch and the rear of the 

appellant's vehicle. Nearby, the appellant — upbeat and talkative 

despite being under arrest — was waiting to be taken to the police 

station. Upon seeing the dog, he said (with a smile) that he did 

not have any drugs. But when Donovan told him that the dog was 

trained to detect explosives and ballistics rather than narcotics, 

the appellant was crestfallen. The dog then alerted to a scent 

near the front porch, upon which the officers found a tackle box. 

Within that box were two black rectangular leather pouches, each

containing a loaded semiautomatic pistol. 

After the search, Donovan questioned Clark further about 

her allegations of domestic violence. This questioning included 

queries about whether the appellant had assaulted Clark in the 

past. According to Donovan, Clark responded that two months 

before, she and the appellant had been arguing in the kitchen when 

their son came to her defense. Enraged, the appellant grabbed a 
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frying pan from the stove and swung it, missing the son but 

striking Clark. She told Donovan that she had not reported the 

incident at the time because she had not wanted the appellant to 

be sent back to prison.

The appellant called Lightowler to tell her of the 

arrest. The appellant stated that Clark had reported to police 

that he had hit her and that a gun had been found at his house. 

He did not say to whom the gun belonged.

Lightowler also spoke on the phone with Clark (who was 

concerned that the appellant's family would blame her for his 

renewed incarceration). She mentioned to Lightowler, presumably 

while describing the events leading up to the appellant's arrest, 

that she had seen the appellant carry a black pouch with him as he 

gathered his belongings.

On the following day, a criminal complaint was lodged

against the appellant, charging him with weapons and assault 

offenses under state law. Lightowler reported those charges to 

the district court and petitioned for the issuance of an arrest 

warrant. The district court issued the warrant. Revocation 

proceedings were then commenced. 

At the revocation hearing, the government did not call 

Clark as a witness and instead relied upon the testimony of 

Lightowler and Donovan to present her statements. The appellant

objected to the admission of such hearsay evidence on the ground 
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that Clark's statements were unreliable: he identified what he 

viewed as factual inconsistencies in her statements; he asserted 

that she offered her statements to police out of spite due to his

meretricious relationships with other women; and he drew attention 

to discrepancies between Clark's statements to police and her 

testimony before the state grand jury (where she minimized the 

physical confrontation between her and the appellant on March 17 

and equivocated when asked about the firearms she saw that day). 

But at no time during the final revocation hearing did the 

appellant object on the ground that the admission of the statements 

violated his right to confront and cross-examine the witness. 

Based on the testimony of Lightowler and Donovan, as 

well as other evidence presented at the hearing, the district court 

found by a preponderance of the evidence that the appellant was 

guilty of several crimes, including possession of a firearm without 

a license, see Mass. Gen. Laws ch. 269, § 10(h)(1); improper 

storage of a firearm, see id. ch. 140, § 131L(a); and assault with 

a dangerous weapon, see id. ch. 265, § 15B(b). The district court 

also found the appellant guilty of being a felon in possession of 

a firearm in violation of 18 U.S.C. § 922(g). The court then 

revoked the appellant's term of supervised release and sentenced 
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him to a new three-year term of immurement.1 This timely appeal 

ensued.

II

In a revocation hearing, a court is not bound by the 

Federal Rules of Evidence. See Fed. R. Evid. 1101(d)(3). By the 

same token, a releasee is not afforded a Sixth Amendment right to 

confront adverse witnesses. See United States v. Fontanez, 845 

F.3d 439, 443 (1st Cir. 2017). Hearsay evidence may thus be 

admitted as long as it is reliable. See United States v. Portalla, 

985 F.2d 621, 622, 624 (1st Cir. 1993). Even so, a releasee 

retains a limited right under the Federal Rules of Criminal 

Procedure to confront an adverse witness unless "the court 

determines that the interest of justice does not require the 

witness to appear." United States v. Mulero-Díaz, 812 F.3d 92, 95

(1st Cir. 2016) (quoting Fed. R. Crim. P. 32.1(b)(2)(C)). To make

such a determination, a court must balance a releasee's right to 

confront the witness with "what good cause may exist for denying 

confrontation in a particular instance." Fontanez, 845 F.3d at 

443. And constructing that balance requires weighing the 

1 The government alleged that the appellant violated two 

conditions of his supervised release — that he not commit another 

crime and that he not associate with other convicted felons. The 

district court revoked his supervised release based solely on a 

violation of the former condition. Because the government does 

not cross-appeal the district court's determination that it failed 

to prove the alleged "association" violation, we do not address

that violation here. 
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reliability of the hearsay statement against the reasons proffered 

by the government for the witness's absence. See id.

The appellant challenges the revocation of his release 

on the ground that the district court admitted hearsay evidence 

without conducting the balancing required by Rule 32.1(b)(2)(C). 

Specifically, he contends that the district court erred both in 

finding the hearsay statements reliable and in failing to state 

explicitly why the interest of justice excused the appearance of 

the witness. We address those contentions one by one. 

A

As the appellant objected below to the reliability of 

the statements, his first challenge is properly preserved. We 

therefore review the district court's reliability determination 

for abuse of discretion. See United States v. Taveras, 380 F.3d 

532, 536 (1st Cir. 2004). Under that standard, we examine the 

district court's legal conclusions de novo, its findings of fact 

for clear error, and its judgment calls with considerable 

deference. See United States v. Canales-Ramos, 19 F.4th 561, 564 

(1st Cir. 2021). 

A hearsay statement may be deemed reliable when it is 

supported by sufficient "indicia of reliability." United States

v. Marino, 833 F.3d 1, 5 (1st Cir. 2016). We have held that such 

indicia may include the detail of the statement, the declarant's 

consistent recounting of the statement on different occasions, or 
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other evidence independently corroborating the statement. See

id.; United States v. Rondeau, 430 F.3d 44, 48-49 (1st Cir. 2005). 

Of course, "indicia of reliability" is a protean concept, and the 

list provided is non-exhaustive. Marino, 833 F.3d at 5. 

Relatedly, we are mindful that determinations of credibility are 

the province of the factfinder such that we are "loath to upset" 

those findings "based on a cold record." United States v. Whalen, 

82 F.3d 528, 532 (1st Cir. 1996).

1

After a careful review of the record, we find ample 

evidence to support the hearsay statements tying the appellant to 

the guns found at the scene. In her statements to both Lightowler 

and Donovan, Clark was consistent in her description of the black 

leather pouches in which the guns were encased. Those descriptions 

were consonant with her statements to the 911 dispatcher that she 

believed the appellant had two weapons with him, one of them in a 

black bag. And as excited utterances, those statements to the 911 

dispatcher were excepted from the rule against hearsay. See United 

States v. Estes, 985 F.3d 99, 106 (1st Cir. 2021) (holding that 

statements of distressed declarant made in 911 call relating to

"startling event or condition" was admissible under excitedutterance exception (quoting Fed. R. Evid. 803(2))). Nor was this 

all: the statements were corroborated by the fact — as noted by 

the district court — that the guns were found in black pouches on 
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the appellant's porch, mere "feet from where he was standing when 

police arrived at the scene." United States v. Franklin, 560 F. 

Supp. 3d 398, 403 (D. Mass. 2021). Taken together with the 

appellant's change in demeanor when informed that the dog brought 

to the scene was trained to detect ballistics, there were 

sufficient indicia of reliability to vouch for Clark's statements. 

The appellant demurs. He asserts that Clark's

statements were sparked by her jealousy over his infidelities with 

other women; that they were inconsistent with, and contradicted 

by, her 911 call (which reported the existence of drugs not 

afterward found at the scene); and that she recanted her statements 

when testifying before the state grand jury.2

We find those arguments unpersuasive. This is not a 

case in which the hearsay statements of an aggrieved partner were 

uncorroborated by independent evidence. Nor does the fact that 

Clark reported in her 911 call that the appellant was in possession 

of drugs, which were not afterward found by police, contradict her 

statements about the guns: after all, she conveyed to the 911 

2 The appellant also argues, somewhat confusingly, that the 

911 call contradicts the domestic violence allegations because 

Clark told Donovan that she called 911 after the appellant shoved 

her repeatedly, whereas Clark's statements to the 911 dispatcher 

focused on the appellant's alleged drug dealing and mentioned 

domestic violence only in passing. But Clark voiced domestic 

violence allegations of a similar nature to both Donovan and the 

911 dispatcher, which would appear to corroborate, not contradict, 

her statements.
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dispatcher her suspicion that the appellant was attempting to hide 

the drugs while she called. And even though it is true that Clark 

told the state grand jury that she had not seen the appellant with 

a black leather pouch, her answer to the prosecutor's question was 

curtailed. Under the circumstances, that testimony does not 

necessarily compromise the reliability of her earlier statements. 

The record shows that she wished to conceal the fact that she had 

reported the appellant to police because she was fearful of the 

consequences of having done so. Viewing her testimony in that 

light, her statements at the scene could reasonably be deemed 

reliable, notwithstanding her later grand jury testimony.3

There is one loose end. Although not directly pertinent 

to the reliability of Clark's statements, the appellant suggests 

that the district court erred in failing to consider the 

possibility that the guns belonged to Clark, her friends, or one 

3 Clark also told the grand jury that the March 17 fight had 

been over another woman and that it had not "turn[ed] physical" 

but, rather, "was more like trying to get hands off [] belongings 

and stuff." The appellant appears to argue that the discrepancies 

between that testimony and her statements to Donovan throw shade 

on Clark's credibility generally, weakening the reliability of the 

admitted statements. But it is not clear to us how that testimony 

bears upon a reliability assessment of the statements about the 

guns, which, as discussed, were independently corroborated by 

other evidence. Nor does the testimony necessarily detract from

Clark's statements about the frying-pan assault. She was not asked 

about that assault before the grand jury, yet her grand jury 

testimony still implies that some physical confrontation occurred 

during the March 17 fight (albeit of lesser intensity than she had 

initially conveyed).
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of the children. But the district court was not obligated to

indulge in such speculation. A finder of fact need not countenance 

an implausible interpretation of the facts over a probable one. 

Cf. United States v. Weidul, 325 F.3d 50, 53 (1st Cir. 2003) ("[A] 

district court's choice between two plausible competing 

interpretations of the facts cannot be clearly erroneous.").

To say more would be pointless. The bottom line is that 

we discern no error, and certainly none that is clear, in the 

district court's crediting of Clark's statements about the 

appellant's possession of the guns. 

2

Clark's statements about the frying-pan assault stand on

shakier footing, and the appellant's contention that those 

statements are not supported by other evidence has a patina of 

plausibility. He contends that the statements are unreliable 

because there was no evidence of injuries from the assault, and 

Clark never before reported any incident of domestic violence. 

Moreover, Donovan never asked the son — despite his presence at 

the home on March 17 — for his statement about the incident. 

Finally, an indictment on the assault with a deadly weapon charge 

was never returned in state court. Even taking all of these facts

into account, though, the appellant fails to show that the district 

court abused its discretion. 
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To be sure, much of what the appellant argues is missing 

from the record is the sort of evidence that would have provided 

compelling substantiating evidence.4 Yet, that lack does not 

diminish the force of the corroboration that is present. The 

specificity of Clark's description of the incident weighs heavily

in favor of its reliability. She did not merely offer a vague 

allegation of violence but, rather, recounted a detailed incident 

that corresponded to family dynamics observed by Lightowler and 

Donovan on March 17. Lightowler described the relationship between 

Clark and the appellant as "strained" such that she feared for her 

own safety while in the home; and Donovan observed that, upon his 

arrival, the son appeared to be protective of his mother, 

encouraging her to speak with the police. Moreover, the context 

of the statement bolsters its reliability. Clark did not 

spontaneously volunteer her account of the assault; it was elicited 

from her when Donovan asked follow-up questions in response to her 

allegations of domestic violence from that very morning. Given 

that evidence, the district court did abuse its discretion in 

finding Clark's statements reliable. In the end, we must leave 

the district court's "findings of fact or conclusions drawn 

4 We do not include within this generality the absence of an 

indictment. After all, the lack of an indictment is not necessary 

as a releasee can be found to have committed a crime in violation 

of the terms of his conditional release even if he has not "been 

the subject of a separate federal, state, or local prosecution for 

such conduct." USSG §7B1.1, cmt. n.1.
- 15 -

therefrom" undisturbed "unless, on the whole of the record, we 

form a strong, unyielding belief that a mistake has been made." 

United States v. Padilla-Galarza, 990 F.3d 60, 73 (1st Cir. 2021) 

(quoting Cumpiano v. Banco Santander P.R., 902 F.2d 148, 152 (1st 

Cir. 1990)). We arrive at no such conviction here.

B

The appellant also argues that the district court failed 

to state explicitly its findings as to the availability of the 

witness (Clark) and then balance those findings against the 

reliability of the statements, as required by Rule 32.1(b)(2)(C). 

As a threshold matter, we must determine whether the appellant 

forfeited this challenge by not raising it before the district 

court.

The appellant argues that he preserved the issue by 

objecting under Rule 32.1 to the lack of live witnesses at his 

preliminary revocation hearing. That argument fails, however, 

because it is incumbent upon an appellant to voice his objection 

at the appropriate time. See Fed. R. Crim. P. 51(b); cf. Ira 

Green, Inc. v. Mil. Sales & Serv. Co., 775 F.3d 12, 24-26 (1st 

Cir. 2014) (holding that party's failure to request polling of 

jury after report of verdict waived right notwithstanding party's 

earlier request); United States v. Meadows, 571 F.3d 131, 146 (1st 

Cir. 2009) (holding that objection to jury instruction during 
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charge conference, not renewed after charge delivered, failed to 

preserve appellate challenge).

Holding the appellant to this sequencing is particularly 

appropriate here, given the differences between preliminary and 

final revocation hearings. The preliminary revocation hearing, 

held before a magistrate judge, probes only whether there is 

"probable cause to believe that a violation occurred." Fed. R. 

Crim. P. 32.1(b)(1)(A); see United States v. Colón-Maldonado, 953 

F.3d 1, 4 (1st Cir. 2020). At that stage of the proceedings, the 

defendant's limited confrontation right, under Rule 

32.1(b)(1)(B)(iii), is available to him only "upon request." In 

contrast, at the final revocation hearing, the district court must

determine, using a preponderance-of-the-evidence metric, whether 

the alleged violation occurred. See Colón-Maldonado, 953 F.3d at 

3, 5. In that setting, a defendant is afforded a more robust right 

under Rule 32.1(b)(2)(C) that "entitle[s]" him to appear before 

the court, to present evidence, and to confront adverse witnesses 

unless the interest of justice permits their absence. It does not 

follow, then, that because the appellant advanced an objection at 

the preliminary hearing under Rule 32.1(b)(1)(B)(iii), he 

preserved the challenge he raises now under Rule 32.1(b)(2)(C). 

That objection was heard before a different judge, within a 

different procedural context, under the auspices of a separate 

provision of the Criminal Rules, such that it cannot fairly be 
- 17 -

said that the objection was "sufficiently specific to call the 

district court's attention" to the error asserted here. United 

States v. Sosa-González, 900 F.3d 1, 4 (1st Cir. 2018) (quoting 

United States v. Soto-Soto, 855 F.3d 445, 448 n.1 (1st Cir. 2017)).

The appellant has a fallback position. He argues that

— at the final revocation hearing — he preserved his challenge as 

to availability by objecting to the reliability of the statements. 

In support, he invokes our decision in Colón-Maldonado, in which 

we found (within the context of that case) that the appellant's 

objections to reliability, "even if [they] failed to invoke Rule 

32.1's limited confrontation right," nonetheless preserved the 

appellant's challenge that the admitted statements were too 

unreliable to prove that he violated the terms of his release. 

953 F.3d at 9 n.7. That ruling, though, tells us nothing as to 

whether an objection to reliability below preserves a challenge to 

availability on appeal.5 And the federal rules dictate otherwise. 

To preserve a claim of error, a party must object to the district 

court's action in a timeous manner and inform the court of the 

5 On a related note, the appellant asserts that because 

conducting a Rule 32.1(b)(2)(C) balancing test is mandatory, no 

objection at all is required to preserve an appellate challenge. 

Such an assertion can be quickly dispatched: as discussed, a 

defendant is entitled to a limited confrontation right under Rule 

32.1(b)(2)(C), but simply having that right does not excuse the 

appellant's failure to assert it. Cf. United States v. Rodríguez, 

735 F.3d 1, 11 (1st Cir. 2013) (holding that "even an error with 

constitutional implications" is subject to plain-error review when 

not preserved).
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"grounds for that objection." Fed. R. Crim. P. 51(b). This 

"contemporaneous-objection rule" prevents a party from 

"sandbagging" the court — that is, "remaining silent about his 

objection and belatedly raising the error only if the case does 

not conclude in his favor." Puckett v. United States, 556 U.S. 

129, 134 (2009). To permit such hedging of arguments would 

undercut the principle that the district court — which "is 

ordinarily in the best position to determine the relevant facts 

and adjudicate the dispute" — should be afforded an opportunity to 

consider and resolve the parties' objections. Id.; see United 

States v. Fox, 889 F.2d 357, 359 (1st Cir. 1989) ("If the objection 

now raised had been formulated below there would have been an

opportunity for the court to consider it and rule accordingly.").

Here, the appellant objected to the reliability of the 

hearsay statements, so the district court responded by 

articulating its reasons for finding the evidence reliable. Now

— after an unfavorable ruling below — the appellant marshals an 

availability argument that he previously kept in reserve, and, in 

doing so, submits that the district court erred in failing to 

address an argument never presented to it. That is precisely the

sort of stratagem anticipated by the contemporaneous-objection 

rule. We see no reason to depart from the rule and thus find that 

the appellant forfeited his right to challenge the district court's 

determination concerning the availability of the witness. Our 
- 19 -

review of that challenge is, therefore, only for plain error. See

United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001).

"The plain error hurdle is high." United States v. 

Hunnewell, 891 F.2d 955, 956 (1st Cir. 1989). Under that demanding 

standard, the appellant must show "(1) that an error occurred (2) 

which was clear or obvious and which not only (3) affected the 

defendant's substantial rights, but also (4) seriously impaired 

the fairness, integrity, or public reputation of judicial 

proceedings." Duarte, 246 F.3d at 60. "The party asserting plain 

error bears the burden of persuasion" as to all four of these 

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

see United States v. Pinkham, 896 F.3d 133, 136-37 (1st Cir. 2018).

The appellant has made no attempt to bear his burden 

under plain-error review, hazarding all on his contention that he 

properly preserved the issue. He has therefore waived his 

challenge here. See Pabon, 819 F.3d at 34.

But even if we were to overlook this waiver, there is no 

plain error to be found. To begin, we are not persuaded that an 

error occurred because the record indicates that the district court 

implicitly conducted the balancing required by Rule 32.1(b)(2)(C). 

The district court expressed its reasons for finding the statements 

reliable (ostensibly in response to the appellant's arguments to 

the contrary) and cited the appropriate legal standard in its 

written order. See Franklin, 560 F. Supp. 3d at 405 (citing United 
- 20 -

States v. Bueno-Beltrán, 857 F.3d 65, 68 (1st Cir. 2017) 

(rehearsing standard for admission of hearsay evidence under Rule 

32.1(b)(2)(C))). In addition, there was a factual basis from which 

to conclude that the interest of justice did not require Clark to

testify in person, as independent evidence bolstered the 

reliability of the statements and suggested that Clark — a victim 

of domestic violence — would have feared for her safety if called 

to testify. We see no reason to presume (absent evidence to the 

contrary) that an experienced judge, familiar with the legal and 

procedural contours of revocation proceedings, failed to conduct 

the balancing test that is a matter of routine under such 

circumstances.6

And — even if we were to assume that the district court 

erred by failing explicitly to conduct that balancing on the record

— any such error was not clear or obvious. Such an error must be 

"indisputable in light of controlling law." United States v. 

6 The appellant argues for the first time in his reply brief that 

even if the district court implicitly conducted a Rule 32.1(b)(2)(C) 

balancing, it still abused its discretion because Clark's supposed fear 

of the appellant had not prevented her from testifying before the state

grand jury. According to the appellant, the government's reluctance to 

call her as a witness stemmed from a concern that she would recant her 

earlier statements, not some other good cause. Whatever the merits of 

this argument — and we do not imply that any exist — it has been waived 

as it was raised for the first time in the appellant's reply brief. See

Sandstrom v. ChemLawn Corp., 904 F.2d 83, 86 (1st Cir. 1991) (explaining 

that arguments raised for the first time in appellant's reply brief are 

deemed waived). And insofar as it relates to the first element of our 

review for plain error, we find it insufficient to prove that the district 

court wrongly applied Rule 32.1(b)(2)(C).
- 21 -

Mulero-Vargas, 24 F.4th 754, 757 (1st Cir. 2022) (internal 

quotation marks omitted) (quoting United States v. Rabb, 5 F.4th 

95, 101 (1st Cir. 2021)). We have never held that a district court 

must explicitly state its reasons for finding that the interest of 

justice militates against the appearance of a witness, even when 

the parties do not otherwise object to the witness's absence. Nor 

is there uniform agreement among the other courts of appeals as to 

whether an explicit balancing under Rule 32.1(b)(2)(C) is required 

under all circumstances. Compare United States v. Lloyd, 566 F.3d 

341, 345 (3d Cir. 2009) ("[W]e reject a per se rule that a district 

court's failure to explicitly address cause amounts to reversible 

error in all cases.") with United States v. Jordan, 742 F.3d 276, 

280 (7th Cir. 2014) (holding that Rule 32.1(b)(2)(C) "requires a 

district court in a revocation hearing explicitly to balance the 

defendant's constitutional interest in confrontation and crossexamination against the government's stated reasons for denying 

them"). It cannot be said, then, that the district court's 

implicit balancing was "contrary to existing law" such that it was 

a clear or obvious error. Rabb, 5 F.4th at 101. 

III

We need go no further. For the reasons elucidated above, 

the judgment of the district court is

Affirmed.