United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 8, 2016 Decided February 21, 2017

No. 13-3074

UNITED STATES OF AMERICA,

APPELLEE

v.

CHRISTIAN FERNANDO BORDA, ALSO KNOWN AS TONY,

APPELLANT

Consolidated with 13-3101

Appeals from the United States District Court

for the District of Columbia

(No. 1:07-cr-00065-1)

(No. 1:07-cr-00065-2)

Elizabeth A. Brandenburg argued the cause for appellant 

Borda. With her on the briefs was Marcia G. Shein. 

Carmen D. Hernandez, appointed by the court, argued the 

cause and filed the briefs for appellant Alvaran-Velez. 

Kirby A. Heller, Attorney, U.S. Department of Justice, 

argued the cause and filed the brief for appellee. 
2

Before: TATEL and WILKINS, Circuit Judges, and 

GINSBURG, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge WILKINS. 

WILKINS, Circuit Judge: Appellants Christian Fernando 

Borda and Alvaro Alvaran-Velez challenge the outcome of a 

jury trial finding them guilty under 21 U.S.C. §§ 959, 960, 963 

of conspiracy to distribute five kilograms or more of cocaine 

knowing and intending that the cocaine would be unlawfully 

imported into the United States. In support of their challenge, 

Appellants allege that the District Court committed numerous 

procedural errors, including improper evidentiary admissions 

and exclusions, insufficient jury instructions, Brady and Napue 

violations, improper closing arguments, and sentencing errors. 

Appellants further maintain that there was insufficient 

evidence to permit a rational juror to find guilt beyond a 

reasonable doubt. For the following reasons, we affirm 

Appellants’ convictions but remand for the District Court to 

resentence Mr. Alvaran.1

 

I.

On December 9, 2010, Appellants Borda and Alvaran 

were convicted of conspiracy to distribute at least five 

kilograms of cocaine with the intent or knowledge that the 

cocaine would be unlawfully imported into the United States. 

At trial, Appellants did not contest that they engaged in drug 

trafficking, but argued that they lacked the knowledge or intent 

to import the drugs into the United States. The conspiracy at 

issue in this case involved three separate transactions: (1) Palm 

Oil #1; (2) Palm Oil #2; and (3) the El Chino Load. The 

evidence presented at trial, taken in the light most favorable to 

 1 Mr. Borda’s sentence was not challenged on appeal and, therefore, 

is not before this Court. 
3

the government, see United States v. Bryant, 523 F.3d 349, 353 

(D.C. Cir. 2008); United States v. Washington, 12 F.3d 1128, 

1135-36 (D.C. Cir. 1994), is as follows.

A.

The first Palm Oil deal occurred between January 2005 

and May 2005 and involved the transportation of 

approximately 1,553 kilograms of cocaine hidden in drums of 

palm oil from Cartagena, Colombia to Puerto Progreso, 

Mexico. A Mexican drug trafficker named Raul Valladares 

(“Junior”) received the cocaine in Puerto Progreso, a small 

Mexican port on the eastern side of the country, in mid-2005. 

Junior transported the cocaine from Puerto Progreso to 

Monterrey, an inland city located approximately one hour and 

forty-five minutes (200 kilometers) by car from the United 

States border. According to the evidence, Monterrey lacked 

sufficient demand for a load of cocaine as large as the Palm Oil 

#1 deal. Beginning in August 2005, Junior began working as 

an informant for the United States Drug Enforcement 

Administration (“DEA”). 

In exchange for transporting the cocaine to Monterrey, 

Junior charged Appellants an 18% fee. The transportation fee 

was calculated based on the quantity of cocaine, not the total 

price (i.e., Junior received payment in kilograms of cocaine, 

not money). The usual transportation fee for moving cocaine 

across the United States border is 40-45%. After selling the 

cocaine, Junior was responsible for paying Appellants $9,100 

per kilogram of cocaine, which is the typical price for cocaine 

in Monterrey. For cocaine sold in the United States, the usual 

price increases to $14,000 or $15,000 per kilogram. Appellants 

expected Junior to pay for the cocaine within ten days of 

receipt. 
4

Junior, however, was unable to reimburse Appellants 

within the specified time period. In light of this development, 

Mr. Alvaran met with Camilo Suarez, another confidential 

informant, on June 15, 2005, to discuss Junior’s failure to pay. 

At this meeting, Mr. Alvaran noted that Junior had started to 

send “partials” across the border. Despite the successful sale of 

cocaine, Appellants still had not received payment. Mr. 

Alvaran commented that Monterrey was full of merchandise 

(i.e., cocaine), but it was not selling as fast as they had 

predicted. Junior later explained that he had already begun 

selling the cocaine at market price and would be able to start 

delivering money in Monterrey. 

Subsequently, on July 20, 2005, Mr. Borda met with Mr. 

Alvaran and Mr. Suarez to discuss Junior’s outstanding 

payments. Mr. Suarez defended Junior’s payment delay by 

explaining that the “market went bad because the border got 

harder” for Junior. Appellants then discussed the conditions at 

the border in greater detail, including new police officers and 

increased inspections. Mr. Borda admitted that he understood 

Junior’s difficulties because he had previously been a drug 

dealer in the United States. In particular, Mr. Borda acquired 

first-hand knowledge of the U.S. drug market while living in 

New York and Florida, and was previously convicted in the 

Southern District of Florida for conspiracy to possess with the 

intent to distribute cocaine back in August 1998. Nonetheless, 

Mr. Borda expressed frustration at Junior’s untimely payments 

and complained that Junior was not paying the negotiated price. 

Mr. Borda referred to the fact that Junior had taken the cocaine 

across the border, sold it at the higher U.S. price, brought the 

money back to Monterrey, and paid Appellants the Monterrey 

price for cocaine. 

At trial, Mr. Suarez testified that all 1,553 kilograms of the

Palm Oil #1 deal were eventually transported into the United 
5

States, with at least 200 kilograms trafficked to New York. 

However, a substantial period of time existed when Mr. Suarez 

did not know what Junior had done with the cocaine. 

Additionally, Mr. Suarez noted that Mr. Borda previously 

refused on two occasions to transport cocaine into the United 

States because he did not want the “responsibility” or 

“headache.” 

By October 2005, Junior had paid Mr. Borda 

approximately $6 million. Junior’s payments were all in United 

States currency, mostly in $20 bills. However, the testimony at 

trial established that the money received for the cocaine was 

laundered through a money exchange house before being 

distributed to Appellants. Once the proceeds were received in 

Monterrey, Mr. Alvaran arranged for the cash to be transported 

to Mexico City. Mr. Alvaran’s secretary, Mr. Lucas, would 

pick the money up in Mexico City and deliver it to Juan Jaime 

Montoya-Estrada, another co-conspirator. The money was then 

moved to either Mr. Alvaran’s apartment or Mr. Montoya’s 

apartment, where Mauricio Cruz counted the proceeds. The 

ledgers kept by Appellants and Mr. Montoya show that Junior 

paid between $153,000 and $1,020,000 every couple of weeks 

between June 17, 2005 and August 4, 2005. 

B.

Following the shipment of the first Palm Oil load, but 

before Junior successfully paid for all of the cocaine, 

Appellants and Mr. Suarez initiated negotiations for a second 

Palm Oil deal. The parties discussed shipping additional 

cocaine from Colombia to Mexico, and Mr. Suarez 

recommended using Junior on this transaction since the parties 

had already completed “one run” with him. Although 

Appellants ordered the palm oil, and Junior invested money in 
6

the new deal, the transaction never materialized due to Junior’s 

late payments on the first Palm Oil load. 

C.

Finally, the third transaction, termed the El Chino Load, 

occurred in approximately September 2005. In this deal, 

Appellants and a drug trafficker named El Chino agreed to 

transport 3,000 kilograms of cocaine from Colombia to Mexico 

City. The cocaine would be transported in two “go-fast boats,” 

and subsequently transferred to a Venezuelan-registered 

fishing vessel. The fishing vessel would meet a boat sent by El 

Chino off the coast of Honduras, and El Chino’s associates 

would then transport the cocaine to Mexico City. 

During the initial shipment of cocaine, one of the “go-fast” 

boats broke down. As a result, only 1,500 kilograms of cocaine 

made it to the Venezuelan fishing vessel. While the fishing 

vessel was supposed to meet El Chino’s associates 

approximately sixty miles off the coast of Honduras, the crew 

spotted a U.S. plane above the vessel and threw the cocaine into 

the Caribbean Sea before being intercepted by the U.S. Coast 

Guard. Accordingly, when the Coast Guard searched the 

vessel, no contraband was discovered. 

D.

Following the presentation of evidence in this case, the 

jury returned a guilty verdict for both Mr. Borda and Mr. 

Alvaran. While the District Court noted that the Government’s 

evidence was “not overwhelming,” United States v. Borda, 786 

F. Supp. 2d 25, 36, 44 (D.D.C. 2011), it upheld the jury’s 

verdict and denied Appellants’ request for a new trial. 

At the sentencing hearing, the District Court found 

Appellants responsible for 200 kilograms of cocaine, in 
7

accordance with Mr. Suarez’s testimony that Junior delivered 

200 kilograms of cocaine to New York. The District Court 

further determined that Mr. Alvaran was “a manager or 

supervisor” of a conspiracy that included at least five 

participants. Given this finding, the District Court added three 

extra points to Mr. Alvaran’s offense level, bringing his total 

level to 41. The Sentencing Guidelines range for this offense 

level is 324 months to 505 months, and the Probation Office 

recommended 360 months. The District Court, however, noted 

that it was not bound by the Guidelines range, and engaged in 

an analysis of the § 3553 factors. See 18 U.S.C. § 3553(a). 

Following this evaluation, the District Court imposed a belowGuidelines sentence of 180 months for Mr. Alvaran, which was 

substantially less than Mr. Borda’s sentence of 300 months. 

After sentencing, Mr. Borda and Mr. Alvaran filed timely 

appeals. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 

18 U.S.C. § 3742(a). 

II.

Appellants first argue that the Government’s evidence at 

trial was insufficient to permit a rational juror to find that 

Appellants knew or intended that the cocaine would be 

transported into the United States. Borda Br. 13, 19-25; 

Alvaran Br. 6-7, 9-13. In their briefing, however, Appellants 

ignore the Government’s presentation of evidence on the intent 

element, and erroneously draw all reasonable inferences in 

favor of themselves. See Gov’t Br. 18-19; see generally Borda 

Br. 20-25; Alvaran Br. 9-13. For the reasons discussed below, 

we reject Appellants’ sufficiency of the evidence challenge. 

A.

In reviewing a conviction for sufficiency of the evidence, 

we must determine whether, after viewing the evidence in the 
8

light most favorable to the prosecution, any rational juror could 

have found the elements of the crime beyond a reasonable 

doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); United 

States v. Thompson, 279 F.3d 1043, 1050-51 (D.C. Cir. 2002); 

United States v. Washington, 12 F.3d 1128, 1135-36 (D.C. Cir. 

1994). This standard seeks to preserve the jury’s role as factfinder. Jackson, 443 U.S. at 319; United States v. Glover, 681 

F.3d 411, 423 (D.C. Cir. 2012). A defendant “faces a high 

threshold” and bears a “heavy burden” when seeking to 

overturn a guilty verdict on this ground. Washington, 12 F.3d 

at 1135; United States v. Branham, 97 F.3d 835, 853 (6th Cir. 

1996). 

B.

When viewed in the light most favorable to the 

Government, the evidence is sufficient to allow a rational juror 

to find guilt beyond a reasonable doubt. At trial, witness 

testimony suggested that Appellants knew Junior was sending 

cocaine across the border. Specifically, Mr. Suarez testified 

that Junior had started to send “partials” to the border and 

“[t]hey were waiting for the money to come back from there.” 

Appellants then conversed about Junior’s difficulties at the 

border, and Mr. Borda sympathized with Junior’s hardships 

because Mr. Borda had previously been a drug dealer in the 

United States. Mr. Suarez further testified that all 1,553 

kilograms of the Palm Oil cocaine were transported into the 

United States, and at least 200 kilograms were sold in New 

York. 

The jury’s decision to credit Mr. Suarez’s testimony was 

not unreasonable in light of the circumstantial facts presented 

by the Government. First, the Government introduced 

evidence regarding the geographic location of Mexico and the 

United States, focusing particularly on the distance from 
9

Monterrey to the U.S. border. Through witness testimony, the 

Government established that Appellants knew the Palm Oil 

cocaine would be transported by Junior from Puerto Progreso 

to Monterrey. Puerto Progreso is a small port, and Monterrey 

is an inland city with no direct access to the ocean. Although 

Appellants argued that they intended to sell the cocaine in 

either Mexico or Europe, a reasonable juror could find that 

moving the merchandise inland contradicted this theory. 

Further, Monterrey is located only 200 kilometers from the 

U.S. border, and the evidence showed that Monterrey had an 

insufficient demand for the amount of cocaine contained in the 

Palm Oil load. A rational juror could infer that Appellants did 

not intend to sell the cocaine in Mexico, but rather intended for 

the cocaine to be distributed within the United States.

Second, Appellants received payment for the Palm Oil 

cocaine in U.S. currency. At no point in time did Appellants 

receive payment in European or Mexican currency, refuting 

Appellants’ contentions that they intended to sell the drugs in 

Europe or Mexico. To the contrary, Appellants kept ledgers 

that showed the receipt of U.S. currency – mostly in $20 bills. 

Although the profits passed through a money exchange house 

before distribution, a reasonable juror could nonetheless infer 

that the receipt of U.S. currency meant that the drugs were sold 

in the United States. Thus, Mr. Suarez’s testimony, combined 

with the circumstantial evidence of geographic location and 

receipt of U.S. currency, could enable a rational juror to find 

guilt beyond a reasonable doubt. 

While Appellants cite numerous examples of evidence 

they believe to be exculpatory or contradicting, see Borda Br. 

20-25; Alvaran Br. 9-13, much of that evidence is also 

consistent with the jury’s guilty verdict, and the Court must 

view all the evidence in a light most favorable to the 

prosecution. See Jackson, 443 U.S. at 319; Thompson, 279 F.3d 
10

at 1050-51. A reasonable juror could examine the evidence 

and, taking all inferences in favor of the Government, conclude 

that Appellants knew or intended that the cocaine would be 

transported into the United States. Accordingly, Appellants 

have not met their high burden to show that no rational juror 

could find for the Government, and the evidence is sufficient 

to support the jury’s guilty verdict. 

III.

Appellants next challenge four specific evidentiary rulings 

made by the District Court. First, Appellants contend that the 

District Court erred by denying Mr. Borda’s motion to admit a 

2006 e-mail from Junior to the DEA. Borda Br. 34-40; Alvaran 

Br. 17-19. Second, Mr. Borda argues that the admission of his 

New York property records and Florida driver’s license were 

irrelevant to the case and prejudicial. Borda Br. 40-42. Third, 

Mr. Borda asserts that the District Court erred by admitting his 

prior federal drug conviction. Id. at 42-48. Fourth, Mr. Borda 

contends that the District Court erroneously admitted coconspirator testimony that was unrelated to the charged 

conspiracy. Id. at 48-52. We decline to reach the merits of these 

arguments because, for the reasons that follow, we find that, 

even assuming error, any such error was not prejudicial. 

A.

This Court reviews the District Court’s evidentiary 

rulings, particularly the admission or exclusion of evidence, for 

abuse of discretion. United States v. Vega, 826 F.3d 514, 537 

(D.C. Cir. 2016) (per curiam); United States v. Mitchell, 816 

F.3d 865, 870 (D.C. Cir. 2016) (explaining that the trial court’s 

admissibility rulings are reviewed for abuse of discretion if a 

timely objection is made, and plain error if an objection is not 

preserved). Even if this Court determines that an evidentiary 

error occurred, it will not reverse an otherwise valid judgment 
11

unless the error affected the appellant’s “substantial rights.” 

FED. R. CRIM. P. 52(a) (“Any error, defect, irregularity or 

variance which does not affect substantial rights shall be 

disregarded.”); United States v. Russo, 104 F.3d 431, 434 (D.C. 

Cir. 1997); United States v. Baker, 693 F.2d 183, 188-89 (D.C. 

Cir. 1982). An error affects the appellant’s substantial rights if 

it influenced or tainted the outcome of the district court 

proceedings. United States v. Olano, 507 U.S. 725, 734 (1993); 

United States v. Smith, 232 F.3d 236, 243 (D.C. Cir. 2000). As 

the Supreme Court noted in Kotteakos v. United States, “[t]he 

inquiry cannot be merely whether there was enough to support 

the result, apart from the phase affected by the error. It is rather, 

even so, whether the error itself had substantial influence. If so, 

or if one is left in grave doubt, the conviction cannot stand.” 

328 U.S. 750, 765 (1946). Where the Court is sure “that the 

error did not influence the jury, or had but very slight effect, 

the verdict and the judgment should stand.” Id. Thus, a reversal 

is usually only warranted where the error was prejudicial. 

Olano, 507 U.S. at 734; see Baker, 693 F.2d at 188-89. 

B.

First, Appellants contend that the District Court erred by 

denying Mr. Borda’s motion to admit a 2006 e-mail from 

confidential informant Junior to the DEA. See Borda Br. 16, 

34-40; Alvaran Br. 17-19. Appellants argue that the e-mail, 

which conveyed Mr. Borda’s interest in sending drugs to 

Europe, was relevant to the issue of intent and did not contain 

impermissible hearsay. Borda Br. 35-40; Alvaran Br. 17-19. 

Even assuming that the District Court’s decision to exclude this 

e-mail was error, it was not prejudicial. 

1.

On March 6, 2006, Junior sent an e-mail to the DEA titled 

“Tony-Mexico-Saturday 4 March.” The e-mail included a 
12

description of Junior’s meeting with Mr. Borda in which Mr. 

Borda offered Junior a new deal to settle Junior’s account. 

Most relevantly, the e-mail stated that “[h]e is not interested in 

sending anything to the United States. Nothing. He is interested 

in Spain, (Valencia) and Mex.” Appellants sought to admit this 

e-mail to negate the element of intent. 

The Government opposed admission of the e-mail and 

argued that if the District Court admitted Junior’s March 6, 

2006 e-mail, it would need to admit another e-mail by Junior 

sent later in the day regarding a meeting with a Mexican drug 

trafficker named Esteban Olivera (referred to as Estevan). In 

this second e-mail, Junior explained that he told Estevan “about 

the business with [Borda]” and that Estevan agreed to receive 

the containers. The e-mail further reported that “[o]n the trip 

we receive from [Mr. Borda], he wants to send to New York.” 

The Government argued that the pronoun “he” in the prior 

sentence referred to Mr. Borda, and suggested Mr. Borda 

intended to distribute cocaine in the United States.

The District Court was faced with dueling e-mails rather 

than Junior’s testimony because Junior had disappeared by the 

time of trial and was feared to have been kidnapped and 

murdered. Ultimately, the District Court declined to admit the 

March 6, 2006 e-mail. First, the District Court explained that 

the e-mail did not relate to the charged conspiracy because it 

occurred six months after the Palm Oil and El Chino deals 

concluded. Second, the District Court noted that the use of 

ambiguous pronouns in the e-mail rendered it vague and 

confusing. Third, the District Court stated that even if the email had been relevant (i.e., within the scope of the 

conspiracy), it constituted hearsay. Finally, the District Court 

acknowledged that if Junior’s 2006 e-mail were introduced, the 

Government would be permitted to admit the second e-mail on 

redirect. 
13

2.

Without deciding whether the District Court erred, we find 

that the exclusion of Junior’s March 6, 2006 e-mail was not 

prejudicial. First, Junior’s 2006 e-mail occurred outside the 

scope of the conspiracy and was contradicted by another e-mail 

later that day. It therefore had little probative value on the issue 

of Mr. Borda’s intent to sell drugs in the United States from 

January 2005 to September 2005. Second, Appellants 

introduced more probative evidence of their intent at trial, 

rendering Junior’s 2006 e-mail duplicative. For example, Mr. 

Suarez testified on cross-examination that Mr. Borda rejected 

several offers to send cocaine to the United States. Mr. Suarez 

further acknowledged that Mr. Borda maintained an interest in 

transporting cocaine to Europe, particularly Holland, Italy, 

Spain, Switzerland, and Portugal, and that Mr. Borda had 

strong connections to ship the cocaine from Mexico to Europe. 

Accordingly, Junior’s March 6, 2006 e-mail stating that Mr. 

Borda was interested in shipping drugs to Spain and Mexico, 

not the United States, was cumulative of other evidence 

presented at trial. Exclusion of this e-mail was not prejudicial. 

C.

Second, Mr. Borda argues that the District Court erred by 

admitting his New York property records and Florida driver’s 

license. The District Court deemed this evidence relevant on 

the issue of intent. As discussed below, we do not find the 

admission of this evidence to be prejudicial. 

1.

On August 29, 1994, Mr. Borda and his wife, Martha 

Borda, purchased property in New York and recorded the deed 

on September 12, 1994. Land records indicate that Martha 

Borda has been the owner and occupant of that property since 
14

1996. After leaving New York, Mr. Borda obtained a driver’s 

license in Florida on November 13, 1996. Witnesses from the 

Nassau County Clerk’s office in New York and the Florida 

Department of Highway Safety and Motor Vehicles testified to 

these facts at trial. Mr. Borda objected to the introduction of 

this evidence on relevance grounds. 

The District Court overruled Mr. Borda’s objections and 

allowed the Government to admit evidence of his U.S. driver’s 

license and property ownership. The District Court found the 

Government’s argument “perfectly reasonable” that by living 

in the United States Mr. Borda possessed knowledge that the 

United States is a “major consumer of drugs.” Such knowledge 

could inform the jury of Mr. Borda’s intent to distribute drugs 

in the United States. Moreover, the District Court explained 

that there was nothing prejudicial about the introduction of this 

evidence. According to the District Court, the evidence is 

actually the opposite of prejudicial, in that it “shows a stable 

person who is buying a home and riding a car legally.” The jury 

should be free to “accept or reject the connections that the 

government is trying to make and the inferences that the 

government is asking the jury to accept.” 

2.

We agree with the District Court that Mr. Borda was not 

prejudiced by the introduction of his property records and 

driver’s license. The evidence merely demonstrates that Mr. 

Borda legally owned property and obtained a driver’s license 

in the United States for a period of time before his deportation 

to Colombia. A jury is not likely to leap to the conclusion that 

Mr. Borda was guilty from the mere mention of his ties to the 

United States some ten years before the conspiracy, as he 

argues. Rather, the evidence reflects positively on Mr. Borda, 

showcasing an individual with a stable livelihood. Further, to 
15

the extent the Government used this evidence to show Mr. 

Borda’s knowledge of the U.S. drug market, it was merely 

duplicative of other testimony and exhibits already in the 

record. Mr. Borda admitted in tape recorded conversations 

introduced at trial that he had a prior conviction in the United 

States for conspiracy to sell drugs, which implies a strong 

knowledge of the U.S. drug market. Thus, the District Court’s 

admission of Mr. Borda’s property records and driver’s license 

cannot be deemed prejudicial. 

D.

Third, Mr. Borda asserts that the District Court erred by 

admitting evidence of his 1998 drug trafficking conviction and 

incarceration with Mr. Montoya. See Borda Br. 42-48. In 

particular, Mr. Borda claims that the prejudicial effect of his 

prior conviction outweighed its probative value and his 

conviction had no bearing on his specific intent to distribute 

narcotics in this case. Id. at 44-45. While his prior drug 

trafficking conviction involved distributing drugs that were 

already in the United States, the present conspiracy involves 

importing drugs into the United States. Id. at 46. Thus, Mr. 

Borda argues that his prior conviction did not involve a same 

or similar offense and should not have been presented to the 

jury. Similarly, Mr. Borda argues that Mr. Montoya should not 

have been allowed to reference his incarceration with Mr. 

Borda during his testimony. Id. at 17, 47-48. For the reasons 

discussed below, we find that any error caused by the 

admission of Mr. Borda’s prior drug conviction was not 

prejudicial. 

1.

Mr. Borda and Mr. Montoya have prior drug convictions 

for conspiracy to possess with the intent to distribute cocaine 

in violation of 21 U.S.C. § 846. The Southern District of New 
16

York sentenced Mr. Montoya to 87 months’ imprisonment on 

September 5, 1997, and the Southern District of Florida 

sentenced Mr. Borda to 70 months’ imprisonment on August 4, 

1998. Although Mr. Borda and Mr. Montoya were 

unacquainted at the time of their convictions, they served their 

sentences together at the Fort Dix Federal Correctional 

Institution and developed a close friendship. 

Following their release from prison, both Mr. Borda and 

Mr. Montoya were deported to Colombia. Based on their 

friendship, Mr. Borda hired Mr. Montoya in early 2005 to be 

his personal representative in Mexico City for drug trafficking. 

In particular, Mr. Montoya would be responsible for facilitating 

the transfer of millions of dollars in U.S. currency, which 

represented drug proceeds, from Mexico to Colombia. 

On July 15, 2010, the District Court entered an order 

prohibiting the Government from introducing the prior 

convictions of Mr. Montoya and Mr. Borda. The District Court 

reasoned that the “extreme age of these convictions” and “the 

fact that the convictions were for significantly different 

offenses” rendered the evidence irrelevant to the conspiracy 

charged in this case and improper Rule 404(b) evidence. 

Alternatively, the District Court explained that the risk of 

unfair prejudice substantially outweighed the probative value 

of the convictions under Federal Rule of Evidence 403. 

Subsequent to this ruling, Mr. Montoya appeared before the 

District Court and pled guilty to conspiracy to distribute at least 

five kilograms of cocaine with the intent and knowledge that 

the cocaine would be imported into the United States. As part 

of this plea arrangement, Mr. Montoya agreed to cooperate 

with the Government and serve as a witness against Appellants. 

The Government explained that Mr. Montoya would be asked 

to describe the origin of his relationship with Mr. Borda, which 
17

would inevitably reference Mr. Montoya’s and Mr. Borda’s 

prior convictions. Such testimony would be necessary to give 

context to Mr. Montoya’s explanations regarding how he 

became involved in drug trafficking with Mr. Borda. The 

Government further stated that Mr. Borda himself referenced 

his prior conviction in several recordings and conversations 

related to the present conspiracy. 

On October 28, 2010, the District Court altered its stance 

on Mr. Borda’s prior conviction and denied Mr. Borda’s 

Motion in Limine to Exclude Reference to Prior Conviction. 

The District Court found that the Government’s evidence was 

relevant and would not be used for the purpose of establishing 

Mr. Borda’s character or propensity. As such, the evidence 

would be admissible under Rule 404(b), and its probative value 

would no longer be outweighed by its prejudicial effect. 

At trial, Mr. Montoya testified about meeting Mr. Borda at 

the Fort Dix Federal Correctional Institution where both men 

had served sentences for drug trafficking. The Government 

additionally introduced a certified copy of Mr. Borda’s prior 

conviction. Defense counsel objected both to the witness 

testimony and documentary evidence of the prior conviction. 

The District Court overruled the objection. 

2.

The District Court’s admission of testimonial and 

documentary evidence of Mr. Borda’s prior conviction was not 

prejudicial. The evidence was used to illustrate the closeness of 

the relationship between Mr. Borda and Mr. Montoya. 

Admission of this evidence was not prejudicial because (1) Mr. 

Borda himself admitted in tape-recorded conversations that he 

had a prior drug conviction, (2) the prior conviction was over a 

decade old, and (3) the conviction was being used solely to 
18

provide context regarding Mr. Montoya’s and Mr. Borda’s 

relationship, and was not used to establish propensity. 

Further, the District Court adequately instructed the jury 

regarding the proper and limited use of Mr. Borda’s prior 

conviction, mitigating any prejudice. The District Court told 

the jury that the evidence was admitted “solely for your 

consideration in evaluating [Mr. Borda’s] intent and 

knowledge.” The District Court articulated that conviction of a 

past crime “is not evidence” that the defendant is guilty of the 

offense in this case, and the jury “must not draw any inference 

of guilt” based on the prior conviction. Under these specific 

and limited circumstances, the witness testimony and 

documentary evidence on this issue were thus harmless. 

E.

Finally, Mr. Borda maintains that the District Court erred 

by admitting co-conspirator statements regarding transactions

outside the scope of the charged conspiracy. See Borda Br. 18, 

48-52. In particular, Mr. Borda complains about the District 

Court permitting Mr. Suarez and Mr. Montoya to testify about 

drug deals or other conversations unrelated to the Palm Oil #1, 

Palm Oil #2, and El Chino deals. Id. at 50. For the reasons that 

follow, we do not believe that these co-conspirator statements 

unduly prejudiced Mr. Borda. 

1.

During the trial, the Government questioned Mr. Suarez 

and Mr. Montoya about their relationship with Appellants, 

including how the co-conspirators met. Mr. Suarez stated that 

he met Mr. Alvaran through a pilot named Tato and that he later 

learned from Mr. Alvaran that Mr. Borda was “doing a run” 

with one of Mr. Alvaran’s family members, El Rey Zambada. 

Mr. Suarez then stated that he accompanied Mr. Alvaran to a 
19

meeting with Mr. Borda where he was asked to do a run with a 

plane. No further details were given about this meeting, and 

Mr. Suarez proceeded to describe the mechanics of recording 

his conversations with Appellants. The District Court 

overruled Appellants’ objections to Mr. Suarez’s testimony on 

these issues. 

Similarly, Mr. Montoya began his testimony by explaining 

his prior drug trafficking activities in the United States, and 

describing how he met Mr. Borda while both men were serving 

prison sentences for prior drug trafficking conspiracies. Mr. 

Montoya proceeded to explain that his organization was 

arrested in 1996 for distributing cocaine, and that the 

authorities discovered the group after they arrested a Mexican 

national in Houston with 400 kilograms of cocaine and allowed 

him to travel to New York. Mr. Montoya explained that “Jorge 

Lamos and all of the others in the group” provided him with 

this information. The District Court provisionally overruled 

Appellants’ objection to this testimony “subject to the 

government’s tying it up appropriately.” The parties, however, 

never revisited this testimony. Gov’t Br. 48. 

2.

Mr. Borda argues that these statements by Mr. Suarez and 

Mr. Montoya constitute impermissible hearsay that occurred 

outside the scope of the conspiracy and should have been 

excluded from the trial. Borda Br. 49-52. Regardless of 

whether the District Court erred by permitting these statements, 

we find that the admission of this testimony was not 

prejudicial. Mr. Suarez’s and Mr. Montoya’s testimony did not 

directly implicate Mr. Borda in criminal activity, and was very 

brief. Mr. Montoya later clarified that he did not even meet Mr. 

Borda until his prison term began at the Fort Dix Federal 

Correctional Institution. Thus, regardless of whether the 
20

testimony related to the charged conspiracy, it did not affect 

Mr. Borda’s substantial rights. 

IV.

Appellants next argue that the District Court erred during 

closing argument. See id. at 59-60; Alvaran Br. 20-35. In 

particular, Appellants advance two contentions. First, 

Appellants maintain that the Government misstated evidence 

about the transportation fees associated with moving the 

cocaine, mischaracterized the identity of the money exchange 

house, and improperly analogized the case to bees flying over 

the U.S. border. Second, Mr. Alvaran argues that the District 

Court erred by precluding him from calling into question the 

sufficiency of the Government’s evidence during his closing 

remarks. See Alvaran Br. 25-35. This purported error, Mr. 

Alvaran contends, prevented the closing arguments from being 

“well balanced.” Id. at 32. As explained below, we do not 

believe the District Court abused its discretion on either issue. 

A.

We first address Appellants’ contention that a new trial 

was warranted due to prosecutorial misstatements during 

closing argument. 

1.

This Court reviews improper prosecutorial statements for 

“substantial prejudice,” and reviews the District Court’s denial 

of a motion for new trial based on this objection for abuse of 

discretion. United States v. Straker, 800 F.3d 570, 628 (D.C. 

Cir. 2015) (per curiam); United States v. Alexander, 331 F.3d 

116, 128-29 (D.C. Cir. 2003). While it is error for counsel to 

rely on any evidence not introduced during the trial, United 

States v. Maddox, 156 F.3d 1280, 1282 (D.C. Cir. 1998), a 
21

prosecutor’s statements in closing argument “will rarely 

warrant a new trial,” United States v. Watson, 171 F.3d 695, 

699 (D.C. Cir. 1999). The question this Court must ask is 

“whether the prosecutors’ comments ‘so infected the trial with 

unfairness as to make the resulting conviction a denial of due 

process.’” Darden v. Wainwright, 477 U.S. 168, 181 (1986) 

(quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 

(1974)). The prosecutorial misconduct must have affected the 

jury’s ability to view the evidence fairly. United States v. 

Thomas, 114 F.3d 228, 246 (D.C. Cir. 1997). To determine the 

prejudicial effect of a closing argument error, this Court 

examines three factors: (1) the centrality of the issue affected 

by the error; (2) the steps taken to mitigate the error; and (3) 

the closeness of the case. Watson, 171 F.3d at 700; see United 

States v. Moore, 651 F.3d 30, 50 (D.C. Cir. 2011) (per curiam).

2.

At the conclusion of the trial, the Government presented 

closing arguments that involved two alleged misstatements of 

evidence and an inapt metaphor. First, the Government 

erroneously summarized Mr. Suarez’s testimony regarding the 

transportation fee Junior received for the Palm Oil #1 deal. 

During trial, the parties presented evidence that Junior only 

charged Mr. Borda an 18% transportation fee to move the 

cocaine from Puerto Progreso to Monterrey. In its closing 

argument, however, the Government erroneously summarized 

Mr. Suarez’s testimony regarding how the transportation fee 

was calculated. While Mr. Suarez’s testimony was that the 

transportation fee was based on drug quantity, the Government 

alleged that the fee was calculated based on the total price. 

Defense counsel objected to this characterization. 

Second, the Government argued in summation that 

Appellants received payment for the Palm Oil cocaine in U.S. 
22

currency. Mr. Montoya testified at trial that Mr. Alvaran 

arranged to transport the proceeds of the transaction in armored 

trucks from Monterrey to a currency exchange house in Mexico 

City. In its closing argument, the Government erroneously 

described the money exchange house as “an armored car 

company.” Mr. Alvaran further maintains that the Government 

failed to identify the currency as U.S. dollars until the proceeds 

passed through the money exchange house. See Alvaran Br. 21. 

As a result, Mr. Alvaran claims that the fact that the proceeds 

“passed through a money exchange house negated any logical 

inference that it had originated as dollars.” Id. at 21. 

Finally, the Government analogized transportation of the 

cocaine into the United States to bees flying across the U.S.-

Mexico border. Specifically, the Government argued that if 

Appellants had opened a box of bees at the U.S. border and 

instructed the bees not to fly north, some of the bees would 

inevitably disobey instructions and cross the border. Similarly, 

by transporting cocaine close to the border, Appellants knew 

that some of the cocaine would be imported into the United 

States. Appellants objected to the metaphor, arguing that 

cocaine lacks the ability to self-locomote. 

Despite the alleged errors, the District Court denied 

Appellants’ request for a new trial. The District Court found 

that while the Government misstated evidence relating to the 

transportation fees and money exchange house, these errors did 

not impact the jury’s ability to judge the evidence fairly. 

Although the transportation fee was a central issue in the case, 

the jury heard “a great deal of evidence” on this topic, and had 

a substantial opportunity to judge the accuracy of the evidence. 

It is unlikely that the jury would disregard its own recollection 

of the evidence for a brief misstatement in the Government’s 

closing argument. Regarding the money exchange house, the 
23

District Court noted that the identity of this institution was a 

minor point that had no bearing on Appellants’ intent. 

3.

The Government’s alleged closing argument errors did not 

prejudice Appellants. As a result, the District Court did not 

abuse its discretion by denying the motion for new trial on this 

ground. 

First, as the District Court explained, the case was close 

but the jury heard substantial evidence on the issue of the 

transportation fees, which was largely uncontested. As the 

Government pointed out in its brief, Gov’t Br. 72-73, the 

prosecutor’s misstatement did not materially misrepresent the 

evidence because the evidence showed that Mr. Borda made 

roughly the same profit whether Junior purchased the cocaine 

from him at the Monterrey price or at the Houston price, which 

was the point of the closing argument. Although the 

Government’s calculation was not entirely accurate, neither 

Appellant disputed this point in his reply brief. Moreover, the 

Government’s position remains consistent with its theory of the 

case, namely that the Appellants accepted lower prices in 

exchange for avoiding responsibility for importing the cocaine 

into the United States. Thus, the misstatement was ultimately 

not prejudicial. 

Second, the Government’s mischaracterization of the 

money exchange house was not prejudicial. The identity of the 

money exchange house was not central to the trial. The 

Government did not deny or misrepresent that Appellants 

laundered the money through an exchange house; rather, the 

Government erred only in its brief description of the money 

exchange house as an armored car company instead of saying 

that the armored car company transported the money to the 
24

exchange house. This misstatement did not weigh on the issue 

of Appellants’ intent, and thus, was not prejudicial. 

Third, the Government’s metaphor comparing cocaine 

trafficking to bees does not amount to reversible error. Many 

decades ago, the Eighth Circuit explained that when closing 

arguments do not go beyond the evidence in the case, “the trial 

court is not required to judge with too great nicety the 

appropriateness of the comparisons, metaphors, and other 

figures of speech with which they may seek to point the 

argument or adorn the peroration.” Green v. United States, 266 

F. 779, 784 (8th Cir. 1920). The Ninth Circuit recently 

espoused similar reasoning, stating that the protections 

afforded to defendants under the due process clause do “not 

mean that every jarring or badly selected metaphor renders a 

trial fundamentally unfair.” United States v. Del Toro-Barboza, 

673 F.3d 1136, 1151-52 (9th Cir. 2012). 

For instance, the Seventh Circuit held that the 

prosecution’s use of a metaphor comparing the growth of a 

conspiracy to that of cancer was appropriate. United States v. 

Caliendo, 910 F.2d 429, 436-37 (7th Cir. 1990). The Fourth 

Circuit similarly upheld the prosecution’s use of a metaphor in 

which the defendant hypothetically played a role in 

unknowingly funding a terrorist act. United States v. Baptiste, 

596 F.3d 214, 226 (4th Cir. 2010). The prosecution’s purpose 

in posing this hypothetical was to provide the jurors with an 

example of unforeseeable criminal activity so that they could 

determine that the defendant’s distribution of drugs was in fact 

foreseeable. Id. at 227. Additionally, the metaphor constituted 

only a minor part of the closing argument – approximately 

fourteen lines in a thirty-six page transcript. Id. Thus, the 

metaphor did not prejudice the defendant. See also United 

States v. Ross, 703 F.3d 856, 879 (6th Cir. 2012) (holding that 
25

the prosecutor’s use of a metaphor to summarize his case 

theory was appropriate). 

Here, the Government’s use of the bees metaphor did not 

prejudice Appellants. The Government used the metaphor to 

show that Appellants could not have been blind to the fact that 

the cocaine would be transported into the United States, just as 

a reasonable person would not have believed that bees released 

near the border would obey an instruction not to travel north. 

Appellants are correct that bees self-locomote while cocaine 

does not, but the metaphor is not so inapt as to raise due process 

concerns. Further, as in Baptiste, the use of the bees metaphor 

constituted only a small part of the Government’s closing 

argument. It is unlikely that the jury would have been unduly 

influenced by this metaphor, which comprised a small portion 

of a lengthy closing argument. Therefore, the Government’s 

metaphor is not reversible error. 

B.

Mr. Alvaran additionally contends that the District Court 

erred by precluding him from calling into question the 

sufficiency of the Government’s evidence during his closing 

remarks. Alvaran Br. 25-35. This characterization of the 

District Court’s ruling, however, is inaccurate. The District 

Court properly sustained the Government’s objection when 

Mr. Alvaran tried to reference material that was outside the 

record. Thus, the District Court did not abuse its broad 

discretion by limiting Mr. Alvaran’s closing argument to the 

evidence presented at trial. 

1.

The District Court’s decision to limit the scope of closing 

argument is reviewed for abuse of discretion. See United States 

v. Stubblefield, 643 F.3d 291, 295 (D.C. Cir. 2011); United 
26

States v. Hoffman, 964 F.2d 21, 24 (D.C. Cir. 1992) (per 

curiam). Abuse of discretion will only be found where the 

District Court’s ruling prevented defense counsel from making 

an essential point. Hoffman, 964 F.2d at 24. Defense counsel 

“must be permitted to argue all reasonable inferences from the 

facts in the record,” including negative inferences that arise 

when a party fails to call an important witness or introduce 

relevant evidence “and it is shown that the party has some 

special ability to produce such witness or other evidence.” Id.

Counsel may not, however, premise an argument on evidence 

that has not been admitted. Id.; Johnson v. United States, 347 

F.2d 803, 805 (D.C. Cir. 1965).

2.

During Mr. Alvaran’s closing argument, defense counsel 

asked the jury to speculate about the questions the DEA must 

have asked Junior after his arrest in Houston. The Government 

objected, and the District Court sustained the objection. At a 

sidebar, defense counsel explained that the jury would be asked 

“to infer from the evidence that is in, which is that DEA agents 

debrief informants, that they would have asked Junior about 

what he had shipped, and if he had given them a name, an 

address, a time, they could have investigated.” The 

Government argued that any debriefing of Junior where he told 

the DEA agents about the Palm Oil load would have been 

hearsay and inadmissible if the Government had tried to 

introduce that evidence. According to the Government, Mr. 

Alvaran “cannot stand here and tell the jury that the 

government did not bring in inadmissible evidence.” 

Additionally, the Government stated that Mr. Alvaran should 

not be permitted to argue hearsay that is not in the record. The 

District Court agreed and noted that “[t]here is nothing to 

support [Mr. Alvaran’s argument] in the evidence.” 
27

3.

We agree with the District Court that the record did not 

support Mr. Alvaran’s closing argument. Accordingly, the 

District Court did not abuse its discretion by limiting Mr. 

Alvaran’s closing argument to evidence contained in the 

record. While the record established that Junior cooperated 

with the DEA, Mr. Alvaran requested that the jury infer that 

Junior did not provide inculpatory information to the DEA 

because the Government would have introduced that evidence 

at trial. Gov’t Br. 77. Mr. Alvaran takes this argument a step 

too far. 

In Hoffman, this Court found it permissible for defense 

counsel to argue at closing that the Government failed to 

introduce any fingerprint evidence. Hoffman, 964 F.2d at 24. 

The Government conceded that the absence of such evidence 

constitutes a relevant “fact” that can be argued before the jury. 

Id. The defense counsel in Hoffman, however, “attempted to go 

far beyond merely pointing out the lack of fingerprint evidence 

and arguing that its absence weakened the Government’s case.” 

Id. Defense counsel instead argued that the lack of fingerprint 

evidence meant that the police did not try to obtain fingerprint 

evidence from the plastic bags containing the narcotics, that 

this violated police procedures, and that if fingerprint evidence 

had been obtained, it would have been favorable to the defense. 

Id. at 24-25. This Court concluded that the defense attorney 

“moved from arguing fair inferences from the record to arguing 

the existence of facts not in the record.” Id. at 25. Thus, this 

Court held that the District Court did not err or abuse its 

discretion by precluding these arguments during closing. Id. 

Similar to Hoffman, Mr. Alvaran exceeded the permissible 

bounds of using negative inferences. At closing, Mr. Alvaran 

was permitted to argue that the Government failed to introduce 
28

any evidence that drugs had been seized in the United States. 

Gov’t Br. 78. This was a logical inference from the record. 

However, Mr. Alvaran’s additional argument – i.e., that 

because the Government did not produce the cocaine, Junior 

must not have been able to tell the Government how the cocaine 

was sold in the United States – was an improper expansion of 

the record. Further, Mr. Alvaran’s contention that the closing 

argument phase “was not well balanced” because of this 

restriction misses the mark. See Alvaran Br. 32-35. The 

arguments made by the Government were logical extensions of 

the evidence contained in the record, unlike Mr. Alvaran’s 

statements. See Gov’t Br. 79-81. Therefore, the District Court 

did not abuse its discretion. 

V.

The next theory Mr. Borda advances is that the District 

Court failed to properly identify for the jury which portion of 

the testimony and exhibits were being struck from the record. 

See Borda Br. 52-57. Although the District Court instructed the 

jury to remove specific exhibits from their evidence packet and 

to disregard any testimony associated with those exhibits, the 

District Court did not specifically identify the content of the 

dialogue being struck. Mr. Borda maintains that this constitutes 

reversible error because the District Court’s decision to strike 

this information occurred approximately one to two weeks after 

the evidence was introduced. We hold that the District Court 

did not abuse its discretion. 

A.

This Court reviews the denial of a requested jury 

instruction de novo. United States v. Kayode, 254 F.3d 204, 214 

(D.C. Cir. 2001). The Court, however, defers to the District 

Court’s choice of language in the jury instructions unless it 

constitutes an abuse of discretion. United States v. White, 116 
29

F.3d 903, 924 (D.C. Cir. 1997) (per curiam). When evaluating 

an alleged error in jury instructions, the Court examines the 

charges as a whole and must determine whether “there was a 

likelihood of misleading the jury to the extent that it is more 

probable than not that an improper verdict was rendered.” 

United States v. Thurman, 417 F.2d 752, 753 (D.C. Cir. 1969) 

(per curiam). “An error in a jury instruction does not require 

reversal if the error was harmless.” United States v. Cicero, 22 

F.3d 1156, 1161 (D.C. Cir. 1994). 

B.

The evidence of the conspiracy introduced at trial extended 

from January 2005 to September 2005, and included the Palm 

Oil #1 deal, Palm Oil #2 deal, and El Chino load. At one point 

during the trial, the Government referenced a side deal with Mr. 

Alvaran’s nephew. Specifically, Mr. Suarez testified that he 

conversed with Mr. Alvaran regarding a drug deal that would 

take place in Juarez, Mexico, which is located on the border of 

the United States. The English translation of this conversation

was provided to the jury as Government Exhibit 35B. 

Appellants objected to this testimony as outside the scope of 

the conspiracy. See Borda Br. 52. Additionally, Mr. Borda 

further argued that the conversation did not involve him, but 

rather referenced a side deal between Mr. Alvaran and Mr. 

Suarez. See id. at 52-53. The District Court overruled the 

objections and conditionally allowed the Government to 

present this evidence subject to appropriately tying it up later. 

Further, the District Court permitted the Government to 

introduce Exhibit 77B, which comprised four clips from 

conversations Mr. Suarez had with Chivo, Junior’s assistant. 

Mr. Borda was present during these conversations, but was on 

the phone with another individual for part of the time. See id. 

at 53. The conversations concerned Chivo’s transportation of 
30

money through an account in Florida, and Mr. Borda’s interest 

in moving cocaine to Juarez and Atlanta. On redirect, Mr. 

Suarez testified that he had a conversation with Mr. Borda on 

this subject, and a recording of this conversation was played 

for the jury. Id. 

At the end of the Government’s evidentiary presentation –

which was approximately two weeks after the admission of 

Government Exhibit 35B, and one week after the admission of 

Government Exhibit 77B – the District Court reviewed all of 

the co-conspirator statements. See id. at 54. The District Court 

found that Mr. Suarez’s statements regarding Juarez, Florida, 

and Atlanta were not made in furtherance of the charged 

conspiracy. Rather, a substantial period of time had passed 

between the Palm Oil #1 deal and the conversation with Chivo. 

Accordingly, the statements were inadmissible hearsay and not 

properly connected to the present charges. The District Court, 

therefore, struck the testimony and corresponding exhibits. 

In striking the exhibits, the District Court instructed the jury 

as follows: “Those exhibits have been struck from the record 

and I’d like to take a minute or two for you to find them in your 

folders and I’ll take them back from you. It’s 35 A and B, clips 

5 and 6.” Defense counsel then requested that the District Court 

further instruct the jury that the actual testimony regarding 

those exhibits be stricken as well. While the District Court 

initially declined this request, saying that the jury would not 

understand the difference, it nonetheless provided a brief 

explanation to the jury: “Ladies and gentlemen, I’m sure you 

all understand. The testimony, the actual testimony in court 

regarding those particular exhibits and clips, that testimony is 

struck from the record as well.” The District Court noted that 

its decision to strike this evidence would only require “one 

paragraph or so” to come out. The District Court denied 

Appellants’ request to specify exactly what content was being 
31

struck – i.e., to refer directly to Juarez, Florida, and Atlanta. 

Additionally, at the end of the trial, the District Court instructed 

the jury to disregard questions, answers, and exhibits that were 

stricken from the record. Mr. Borda maintains that the twoweek delay in striking this evidence, along with the District 

Court’s failure to tell the jury exactly what portions of the 

testimony were to be disregarded, was error.

C.

Mr. Borda’s argument on this issue is a nonstarter. As a 

preliminary matter, Mr. Borda cannot point to any case law –

and we have been unable to identify any precedent – that 

requires the District Court to provide a detailed explanation and 

summary of all testimony and exhibits being struck from the 

record. The District Court instructed the jury as to which 

exhibits should be removed, and informed the jury that the oral 

testimony concerning those exhibits was also struck from the 

record. The jurors physically removed the offending exhibits 

from their packets, and were unable to view those exhibits 

during deliberations. Nothing mandates a more specific jury 

instruction whereby the judge must identify the exact content 

of the testimony being struck. 

Moreover, it would not have been feasible or realistic for 

the District Court to accurately summarize the testimony being 

struck from the record because the evidence was confusing and 

references in the struck conversations were unclear. When 

requesting a more specific instruction, defense counsel even 

conceded that he had no idea how a more specific instruction 

would be done. For these reasons we decline to find prejudice 

or an abuse of discretion. 
32

VI.

The next argument raised by Appellants is that the 

Government violated its obligation to produce exculpatory 

documents under Brady v. Maryland, 373 U.S. 83 (1963). See 

Borda Br. 26-31; Alvaran Br. 13-16. In particular, Appellants 

identify two instances of alleged Brady violations. First, 

Appellants argue that the Government delayed disclosing DEA 

reports in which Junior specified Mr. Borda’s interest in 

transporting drugs to Europe and Canada. See Borda Br. 31-34. 

For purposes of this appeal, Appellants have concentrated their 

argument on a 2005 e-mail written by Junior to the DEA. This 

e-mail was disclosed before trial. Second, Appellants maintain 

that the Government withheld a draft report by DEA agent 

Patricia Skidmore, in which Ms. Skidmore documented an 

interview she conducted with Junior in January 2006. See id. at 

28; Alvaran Br. 13-15. The District Court examined these 

allegations and concluded that no Brady violations occurred. 

As a result, the District Court denied Appellants’ request for a 

new trial on this basis. We agree with the District Court that 

the Government did not violate Brady. 

A.

Generally, this Court reviews the District Court’s refusal to 

grant a new trial for abuse of discretion; however, Brady claims 

“present something of a special situation.” United States v. 

Oruche, 484 F.3d 590, 595 (D.C. Cir. 2007). On appeal, 

whether the Government has breached its obligations under 

Brady is a question of law that is reviewed de novo. United 

States v. Emor, 573 F.3d 778, 782 (D.C. Cir. 2009); United 

States v. Johnson, 519 F.3d 478, 488 (D.C. Cir. 2008). Thus, 

the issue is not whether the District Court properly exercised 

its discretion by refusing to order a new trial, but whether the 

District Court properly determined whether a Brady violation 
33

existed. Oruche, 484 F.3d at 596. Once a Brady violation is 

established, a new trial is the prescribed remedy and is not 

subject to discretion. Id. at 595. 

B.

The Supreme Court has imposed upon the prosecution an 

affirmative duty to disclose exculpatory evidence to the 

defense, even if no request has been made by the accused. 

Strickler v. Greene, 527 U.S. 263, 280 (1999); Brady, 373 U.S. 

at 87. To prove a Brady violation, the movant must demonstrate 

three elements. First, the movant must show that the evidence 

at issue is favorable to the accused, either as impeachment or 

exculpatory evidence. Strickler, 527 U.S. at 281-82; see also 

Kyles v. Whitley, 514 U.S. 419, 433 (1995); United States v.

Bagley, 473 U.S. 667, 676 (1985). Second, the movant must 

prove that the evidence was suppressed by the State, either 

willfully or inadvertently. Strickler, 527 U.S. at 281-82. 

Third, the movant must demonstrate prejudice. Id. To 

satisfy the prejudice element, the evidence must be material. 

United States v. Brodie, 524 F.3d 259, 268 (D.C. Cir. 2008); 

United States v. Bowie, 198 F.3d 905, 908 (D.C. Cir. 1999). 

Evidence is “material” if there is a “reasonable probability” 

that the result of the trial would have been different had the 

evidence been admitted and used appropriately. Kyles, 514 

U.S. at 433-34; Bagley, 473 U.S. at 676; Bowie, 198 F.3d at 

908. The term “reasonable probability” means that the chances 

of reversal must be high enough to “undermine confidence in 

the outcome” of the trial. Bowie, 198 F.3d at 908; see United 

States v. Bailey, 622 F.3d 1, 8 (D.C. Cir. 2010). When 

examining reasonable probability, the Court must not view the 

evidence in isolation, but rather must consider the nondisclosure “dynamically” and take into account the numerous 

predictable impacts the evidence could have on trial strategy. 
34

United States v. Pettiford, 627 F.3d 1223, 1229 (D.C. Cir. 

2010); Johnson, 519 F.3d at 489; Bowie, 198 F.3d at 912. 

Cumulative evidence is not considered material as long as it is 

“the same kind of evidence” as that introduced at trial. Brodie, 

524 F.3d at 269; see Emor, 573 F.3d at 782. Thus, the movant’s 

burden is to demonstrate a reasonable probability of a different 

trial result. Strickler, 527 U.S. at 291. 

C.

Appellants first maintain that the Government violated 

Brady by delaying its disclosure of a 2005 e-mail from Junior 

stating that Mr. Borda was interested in sending drugs to 

Europe and Canada. As an initial matter, this evidence was 

disclosed before the trial. A new trial will rarely be warranted 

based on a Brady claim where the defendant obtains the 

information in time to use it at the trial. United States v. 

Andrews, 532 F.3d 900, 907 (D.C. Cir. 2008). Where evidence 

is disclosed late but before trial, the defendant must show a 

reasonable probability that an earlier disclosure would have 

altered the trial’s result. Id. Here, Appellants have failed to 

demonstrate prejudice, which is the cornerstone of Brady. 

1.

From August 2005 until his kidnapping and suspected 

death in March 2006, Junior worked as an informant for the 

DEA. Throughout the course of this relationship, Junior 

identified suspected drug trafficking operations. In September 

2005, Junior disclosed that Mr. Borda “is discussing a new 

route from Colombia to Europe and Canada.” 

On October 18, 2010, before commencement of the trial in 

early November, the Government disclosed redacted versions 

of DEA-6 forms and summaries of Junior’s debriefings by 

DEA special agents between August 2005 and March 2006. 
35

Junior’s September 2005 e-mail was identified as part of this 

discovery. On October 19, 2010, Mr. Borda filed a motion for 

disclosure of Brady evidence, arguing that the Government 

withheld material exculpatory evidence (including the 

September 2005 e-mail) until a few days before trial. The 

District Court denied Mr. Borda’s motion and concluded “that 

evidence pertaining to Defendant Borda’s involvement in 

selling drugs to other countries outside of the United States is 

not Brady evidence.” Appellants contest this ruling and argue 

that Junior’s e-mail constituted admissible Brady evidence. 

2.

Appellants’ Brady argument is unpersuasive, as it fails to 

demonstrate materiality or prejudice. Even assuming that 

Junior’s 2005 e-mail contained exculpatory evidence and that 

the Government inadvertently suppressed this evidence, 

Appellants were not prejudiced. Appellants received this email in time to use it at trial, and they introduced other evidence 

that showcased Mr. Borda’s interest in selling cocaine in 

Europe. Appellants make no claim that an earlier disclosure 

would have altered the result at trial. Rather, the jury heard 

similar evidence at trial and nonetheless found Appellants 

guilty. Thus, the Government’s delay in producing the e-mail 

did not prejudice Appellants. Accordingly, a Brady claim is not 

viable. 

D.

Appellants next contend that the Government’s failure to 

reveal a draft report written by Ms. Skidmore during an 

interview with Junior constitutes a Brady violation. See Borda 

Br. 26-31; Alvaran Br. 13-15. Similar to the prior Brady claim, 

Appellants’ argument fails because they cannot demonstrate 

prejudice. 
36

1.

After the jury returned a verdict, Appellants alleged that the 

Government withheld exculpatory evidence demonstrating that 

they did not know or intend for the Palm Oil cocaine to be 

transported to the United States. Appellants made this 

allegation based on a written statement by Raphael Mejia, who 

was incarcerated with Mr. Borda and co-conspirator H.B. at 

Northern Neck Regional Jail in Warsaw, Virginia. Mr. Mejia 

alleged that H.B. informed him that Mr. Borda “made it very 

clear to him (H.B.) and [Junior] that he (Borda) did not want 

any cocaine sent to the United States.” 

The District Court found that Appellants had raised a 

“colorable claim” and required the Government to disclose all 

DEA reports and rough notes relating to H.B. and Junior. 

Following the Government’s disclosures, Appellants raised 

nine additional Brady claims, including an allegation that the 

Government failed to disclose a draft report by Ms. Skidmore 

of a January 2006 interview with Junior. According to the 

report, Junior mentioned that Mr. Borda “advanced” 100 

kilograms of cocaine to Junior and H.B. individually, and that 

“[u]nbeknownst to Borda,” several co-conspirators, including 

Junior, “took an additional 100 kilograms of cocaine believing 

they could sell it in Houston for a larger profit.” 

In light of this evidence, the District Court convened a posttrial hearing at which Ms. Skidmore testified. Ms. Skidmore 

explained that her notes regarding this conversation with Junior 

were only in draft form and had never been finalized due to 

Junior’s disappearance. When questioned regarding what facts 

were “unbeknownst” to Mr. Borda, Ms. Skidmore explained 

that Mr. Borda was unaware that Junior and H.B. had each 

taken an extra 100 kilograms of cocaine to sell in Houston. Mr. 

Borda was not necessarily unaware that the original 200 
37

kilograms of cocaine were to be sold in the United States. Ms. 

Skidmore further testified that Junior never indicated to her or 

any other agent that Mr. Borda did not know the cocaine was 

going to the United States. Following the evidentiary hearing, 

the District Court denied Appellants’ motion for a new trial. 

See United States v. Borda, 941 F. Supp. 2d 16 (D.D.C. 2013). 

Specifically, the District Court found that Ms. Skidmore’s 

testimony “directly contradicts Defendants’ interpretation of 

the draft report she wrote.” 

2.

Similar to the first Brady allegation, Appellants have failed 

to show that the exclusion of the DEA report was prejudicial. 

To satisfy the prejudice prong, Appellants were required to 

show a reasonable probability that the result of the trial would 

have been different if the evidence had been admitted. Kyles, 

514 U.S. at 433-34; Bagley, 473 U.S. at 676. No such showing 

of prejudice has been made in this case. If the District Court 

had admitted Ms. Skidmore’s draft report, it is extremely likely 

that Ms. Skidmore would have given the same testimony she 

provided at the post-trial hearing. This testimony would have 

clarified Junior’s statements in a manner at odds with 

Appellants’ interpretation. See Gov’t Br. 66-67. In any event, 

the report says nothing about the disposition of the remaining 

cocaine from the Palm Oil load, including the 200 kilograms 

Junior testified he brought to New York. See id. at 65-66. Thus, 

it is not reasonably probable that the jury would have arrived 

at a judgment of acquittal based on this evidence. As such, 

Appellants have failed to establish a Brady violation. 

Appellants, however, argue that admission of Ms. 

Skidmore’s report would have altered their cross-examination 

techniques and trial strategy, particularly with regard to the 

amount of cocaine trafficked into the United States. See Oral 
38

Arg. at 15:00-16:00, 16:45-17:25, United States v. Borda (Nov. 

8, 2016) (13-3074). This argument is unpersuasive. Mr. Suarez 

testified at trial that at least 200 kilograms of cocaine from the 

Palm Oil load were transported into the United States. Thus, 

Ms. Skidmore’s report did not introduce any new or different 

information regarding the volume of cocaine trafficked into the 

United States. Appellants possessed notice of these facts before 

trial, and were not prejudiced by the exclusion of this report. 

VII.

Mr. Alvaran separately argues that in addition to the second 

Brady violation discussed in Part VI, the Government violated 

Napue v. Illinois, 360 U.S. 264 (1959) by failing to alert the 

District Court to Mr. Suarez’s false testimony. See Alvaran Br. 

16. Specifically, Mr. Alvaran claims that Mr. Suarez’s 

testimony about the Palm Oil cocaine being shipped to the 

United States was false because Junior told the Government 

that it was “unbeknownst” to Mr. Borda that the cocaine was 

transported across the border. Id. Mr. Alvaran’s argument, 

however, misses the mark. The touchstone of a Napue violation 

is that the testimony must be false. Napue, 360 U.S. at 269. Ms. 

Skidmore clarified in her post-trial hearing that what was 

“unbeknownst” to Mr. Borda was that Junior and H.B. took 

additional cocaine to sell in the United States; not that the 

original 200 kilograms of cocaine would be sold in New York. 

Therefore, Mr. Suarez’s testimony about the Palm Oil cocaine 

being shipped to the United States does not directly contradict 

Ms. Skidmore’s report. While the 200 kilograms of cocaine 

described by Mr. Suarez may not be the same 200 kilograms of 

cocaine identified by Ms. Skidmore, nothing in Ms. 

Skidmore’s report or her testimony gives rise to an inference 

that Mr. Suarez lied on the stand. Thus, this claim is without 

merit. 
39

VIII.

Mr. Alvaran’s final argument is that the District Court erred 

during the sentencing phase. In particular, Mr. Alvaran argues 

that the District Court improperly calculated the quantity of 

cocaine for which he was responsible and thus, erroneously 

applied a three-level sentencing enhancement. Alvaran Br. 35-

43. Mr. Alvaran additionally suggests that the District Court 

did not consider mitigating circumstances and that the case 

should be remanded for resentencing because he will be older 

than Mr. Borda upon his release from prison. Id. at 43-45. For 

the reasons that follow, we reject Mr. Alvaran’s contentions of 

error but remand for resentencing in light of the retroactive 

amendment to the cocaine sentencing guidelines. See generally 

18 U.S.C. § 3582(c)(2); U.S. Sentencing Guidelines Manual 

§ 1B1.10 App’x C Supplement, Amendment 782 (Nov. 1, 

2014) [hereinafter Amendment 782].

A.

This Court reviews the District Court’s factual findings 

during the sentencing hearing for clear error. United States v. 

Foster, 19 F.3d 1452, 1455 (D.C. Cir. 1994). The District 

Court’s inferences from the facts are accorded the same 

deferential standard of review as the actual findings. Id. 

Pursuant to the clear error standard, this Court will affirm the 

District Court’s decision unless it has a “definite and firm 

conviction that a mistake has been committed.” United States 

v. Brockenborrugh, 575 F.3d 726, 738 (D.C. Cir. 2009) 

(quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 

(1948)). The Court further gives “due deference” to a District 

Court’s application of the Sentencing Guidelines to the facts. 

United States v. Henry, 557 F.3d 642, 645 (D.C. Cir. 2009).
40

B.

During the sentencing hearing, the District Court found Mr. 

Alvaran responsible for 200 kilograms of cocaine, in 

accordance with Mr. Suarez’s testimony that Junior delivered 

200 kilograms of cocaine to New York. The District Court 

deemed this amount reasonably foreseeable to both Mr. 

Alvaran and Mr. Borda “given the scope of the agreement or 

the conspiracy into which they had all entered.” The District 

Court further found that “there is absolutely no question that 

Mr. Alvaran was neither a minimal nor a minor participant” in 

the conspiracy. Rather, “he was indeed a manager or 

supervisor.” In support of this finding, the District Court 

elaborated on the following facts: (1) Mr. Alvaran introduced 

Mr. Suarez to Mr. Borda; (2) Mr. Alvaran went to Monterrey 

with Junior to make sure that the cocaine had arrived; (3) Mr. 

Alvaran arranged for the drug proceeds to be transported to a 

money exchange house in Mexico City; (4) Mr. Alvaran 

directed Mr. Lucas to bring drug proceeds to Mr. Alvaran’s 

apartment for safekeeping; and (5) Junior called Mr. Alvaran 

once the cocaine arrived in Puerto Progreso for permission to 

move the cocaine to Monterrey. Thus, the District Court could 

properly infer that Mr. Alvaran was aware that 200 kilograms 

of cocaine would be sent to New York. 

Further, the District Court concluded that Mr. Alvaran 

“supervised” his secretary, Mr. Lucas, and that the conspiracy 

involved at least five people: Mr. Borda, Junior, Mr. Montoya, 

Mr. Cruz, and Mr. Lucas. Accordingly, the District Court 

determined that Mr. Alvaran “clearly fits within § 3B1.1 of the 

guidelines” and that “there is no way that he could be viewed 

as a minimal or a minor participant in criminal activity under 

§ 3B1.2 of the guidelines.” 
41

Given that Mr. Alvaran had a criminal history category of 

1 and a base offense level of 38, the District Court imposed 3 

extra points because Mr. Alvaran served as a manager or 

supervisor. This brought Mr. Alvaran’s total offense level to 

41. The Sentencing Guidelines range for this offense level is 

324 months to 505 months, and the Probation Office 

recommended 360 months. The District Court, however, noted 

that it was not bound by this range, and engaged in an analysis 

of the § 3553 factors. See 18 U.S.C. § 3553(a). 

In evaluating the § 3553 factors, the District Court noted 

that Mr. Alvaran had no prior criminal record, which was 

“certainly a strong factor on his behalf.” Additionally, the 

District Court recognized Mr. Alvaran’s health problems, but 

explained that his health concerns were not imminently 

threatening and were not an excuse for criminal conduct. The 

District Court then proceeded to describe Mr. Alvaran’s 

personal history and characteristics, and weighed this history 

against the seriousness of the offense and the need for 

punishment and deterrence. Following this analysis, the 

District Court imposed a sentence of only 180 months, which 

was substantially less than Mr. Borda’s sentence of 300 

months. 

C.

The District Court did not err, much less clearly err, by 

awarding a below-Guidelines range sentence to Mr. Alvaran

for his involvement in the Palm Oil drug conspiracy. When 

calculating a defendant’s base offense level, the District Court 

must analyze “all relevant conduct.” United States v. Seiler, 

348 F.3d 265, 268 (D.C. Cir. 2003). The term “relevant 

conduct” refers to “all reasonably foreseeable acts and 

omissions [committed by] others in furtherance of the jointly 

undertaken activity.” U.S.S.G. § 1B1.3(a)(1)(B); Seiler, 348 
42

F.3d at 268; see also United States v. Wyche, 741 F.3d 1284, 

1292-93 (D.C. Cir. 2014). Here, the District Court explained 

that the scope of the conspiracy was not limited to shipping 

cocaine from Colombia to Mexico, but rather extended to 

Junior’s transportation of the cocaine to Monterrey and his sale 

of the cocaine in the United States. The District Court 

explained that it was reasonably foreseeable to Appellants that 

Junior would sell cocaine in the United States after he 

transported it to an inland city near the U.S. border. Mr. 

Alvaran was aware that Junior would not be able to sell 1,553 

kilograms of cocaine in Monterrey given the low demand for 

drugs in that city, and knew Junior had started sending 

“partials” to the border by June 15, 2005. Additionally, Mr. 

Alvaran was aware that Junior’s delayed payment for the 

cocaine was a result of his difficulties at the border. Further, 

the District Court found Mr. Suarez’s testimony credible on the 

issue that at least 200 kilograms of cocaine had been delivered 

to New York. Thus, the District Court did not clearly err by 

establishing Mr. Alvaran’s base offense level as 38. 

Moreover, the District Court properly applied a three-point 

enhancement to the base offense level because Mr. Alvaran 

acted as a manager or supervisor of the drug conspiracy, and 

the conspiracy involved more than five participants. See 

U.S.S.G. § 3B1.1. Sufficient evidence establishes that Mr. 

Alvaran participated in planning the Palm Oil transaction from 

the beginning, and that he supervised numerous aspects of the 

illegal enterprise, including Mr. Lucas’s activities. Mr. Alvaran 

not only recruited Mr. Suarez, but he also monitored Junior. 

Mr. Alvaran further organized the transportation of the drug 

proceeds from Monterrey to Mexico City and safeguarded the 

money. When the money was distributed, Mr. Alvaran received 

a return on his investment and provided input on how to 

allocate Junior’s proceeds. Thus, the three-point enhancement 

was not error. 
43

Additionally, the District Court offered a reasoned basis 

for its decision and did not fail to consider mitigating and nonfrivolous arguments for a lower sentence. Where a defendant 

provides a non-frivolous argument for mitigation, the district 

court must consider this argument when pronouncing a 

sentence. United States v. Bigley, 786 F.3d 11, 12, 14 (D.C. Cir. 

2015) (per curiam). In addition to considering these arguments, 

the court must provide a “reasoned basis” for its sentencing 

decision. United States v. Locke, 664 F.3d 353, 357 (D.C. Cir. 

2011). These standards, however, do not require the court to 

expressly address every argument advanced by a defendant. Id. 

Rather, “so long as the judge provides a ‘reasoned basis for 

exercising his own legal decisionmaking authority,’ we 

generally presume that he adequately considered the arguments 

and will uphold the sentence if it is otherwise reasonable.” Id. 

at 358 (quoting Rita v. United States, 551 U.S. 338, 356 

(2007)). Where the record makes clear that the judge evaluated 

a defendant’s arguments, the presumption of reasonableness 

will be upheld. Id.

In particular, Mr. Alvaran contends that the District Court 

erred by failing to impose a term of imprisonment that would 

result in his release by age sixty-five (as the District Court had 

in Mr. Borda’s case). Alvaran Br. 43. This argument is 

unpersuasive. The District Court adequately considered Mr. 

Alvaran’s personal history and health problems when 

pronouncing its sentence. The fact that Mr. Alvaran did not 

have a prior criminal history, combined with his age and health 

concerns made it unlikely that he would commit additional 

crimes. The District Court weighed these factors and imposed 

a sentence of 180 months’ imprisonment – well below the 

Guidelines range of 324 months to 505 months. Moreover, this 

imprisonment term was almost half of the sentence imposed on 

Mr. Borda, who received 300 months’ imprisonment. The fact 

that Mr. Alvaran will be older than Mr. Borda upon his release 
44

from prison is irrelevant. Thus, the District Court did not err in 

its sentencing determination.

D.

While we reject Mr. Alvaran’s contentions of error, we 

nonetheless remand the case to the District Court for 

resentencing. After Mr. Alvaran was sentenced, the U.S. 

Sentencing Commission lowered the Guidelines range for 

certain offenses involving cocaine, and permitted district courts 

to apply these lower ranges retroactively. See U.S.S.G. § 

2D1.1; Amendment 782, supra; see also 18 U.S.C. § 3582(c) 

(explaining that a district court can modify a term of 

imprisonment if the applicable Sentencing Guidelines range 

has been retroactively lowered by the Sentencing 

Commission). The Government agrees to Mr. Alvaran’s 

request for resentencing on this basis. See Gov’t Br. 92 n.18 

(stating that the Court “should remand” the case to allow Mr. 

Alvaran to file a motion for a reduced sentence). Thus, the case 

is remanded to provide Mr. Alvaran with an opportunity to 

request a reduced sentence.2 We, of course, express no view on 

the merits of any such request.

***

For the reasons previously discussed, we affirm 

Appellants’ convictions and remand the case to the District 

Court for resentencing Mr. Alvaran. 

So ordered.

 2 Mr. Borda did not challenge his sentence on appeal. Therefore, our 

remand is limited to Mr. Alvaran.