United States v. Casey

United States Court of Appeals
For the First Circuit

No. 13-1839

UNITED STATES,

Appellee,

v.

LASHAUN CASEY,

Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Aida M. Delgado-Colón, U.S. District Judge]

Before

Thompson, Hawkins,* and Barron,
Circuit Judges.

Linda Backiel on brief for appellant.
Mariana E. Bauzá, with whom Rosa Emilia Rodríguez-Vélez,
United States Attorney, Nelson Pérez-Sosa, Assistant United States
Attorney, Chief, Appellate Division, Thomas Klumper, Assistant
United States Attorney, Senior Appellate Counsel, and Susan Z.
Jorgenson, Assistant United States Attorney, were on brief for
appellee.

* Of the Ninth Circuit, sitting by designation.
June 3, 2016
 HAWKINS, Circuit Judge. Lashaun Casey appeals his

conviction by jury trial and life sentence for the death of an

undercover police officer during a drug buy. His appeal raises a

host of challenges to rulings issued throughout his pretrial and

trial proceedings, and urges he be granted a retrial. For the

reasons described in the opinion that follows, we affirm.

I. Background

A. Facts

The overarching series of events giving rise to this

appeal are not in dispute. Contested issues pertinent to Casey's

arguments on appeal, and the appropriate standard of review for

each, are addressed in the Discussion sections below. While the

record is brimming with numerous additional details, we keep our

synopsis relevant to the questions we have been asked to consider.

In 2005, Puerto Rico Police Department ("PRPD") Agent

Jesús Lizardi-Espada ("Lizardi") was assigned to investigate Casey

undercover. He eventually arranged with Casey's assistance to

purchase four pounds of marijuana on the island of Culebra in the

morning hours of August 1, 2005, from the drug supplier Alexander

Hernández. Lizardi and Casey were to drive to Fajardo, from where

they would take a ferry to Culebra to meet Hernández. A law

enforcement team led by Lizardi's supervisor, Agent José Agosto-

Rivera ("Agent Agosto"), traveled to Culebra by plane to await

Lizardi and Casey's arrival.

-3-
 When Agent Agosto did not see Lizardi and Casey arrive

on the ferry as planned, a search for Lizardi commenced. Later

that day, Agent Agosto found Casey at his workplace, a Holiday Inn

in Isla Verde, and spotted Lizardi's gray Ford truck in the hotel

parking lot. Upon leaving the Holiday Inn in Lizardi's truck,

Casey was arrested and taken to PRPD general headquarters, where

he was read his rights, signed a Miranda waiver, and began being

questioned. Casey, who remained in PRPD custody until midday the

following day, was moved to a PRPD precinct in Canóvanas and later

to one in Luquillo. At some point, Casey told officers he was no

longer interested in talking with the police.

While Casey was in PRPD custody, Casey's grandparents

Mr. and Mrs. Rivera, with whom he lived, permitted law enforcement

officers to search his bedroom without a warrant. In it, the FBI

discovered a loaded firearm inside a jacket pocket, Lizardi's cell

phone, and a pair of blood-stained flip flops. Casey was

subsequently transferred from PRPD to FBI custody in Ceiba, where

he was confronted with this evidence, and in the course of further

questioning, requested an attorney. It was there that his common-

law wife, Crystal Peña ("Peña"), came to visit him. Statements

Casey made to her during their exchange were overheard by law

enforcement, and later admitted as evidence against him.

Further investigation revealed that on the morning of

August 1, 2005, Luis Algarín ("Algarín"), a cashier working at the

-4-
marina parking lot in Fajardo from which ferries to Culebra depart,

witnessed a person he later identified in a photo array as Casey

drive up to his booth in a gray truck, request to leave after

losing his parking lot ticket, and pay with a twenty-dollar bill.

Another parking lot employee, Peter Ávila-Natal, also observed on

that same day in the lot a pick-up truck missing a driver's side

window, and glass dust on the truck driver's elbow. The FBI

recovered from the Fajardo parking lot a car window with what

appeared to be a bullet hole in the middle, and a projectile which

was later matched to the gun found in Casey's bedroom.

Law enforcement procured a warrant and searched

Hernández's residence. A cadaver dog, trained to help locate

decomposing bodies, gave alerting signals both inside and outside

the residence. Officers questioned Hernández and seized several

items, including a pair of muddy boots, pants, a glove, soil

samples, and floor mats, from the premises.

Lizardi's backpack was then discovered in Luquillo, down

the road from Hernández's home, at a location also just a mile

from where Casey lived. It contained clothes and a towel with

hair on it that law enforcement concluded was not Casey's, although

no tests were conducted to ascertain whose hair it was. A few

days later, Lizardi's body was also found in Luquillo, down a hill

in a wooded area behind an abandoned structure that contained

traces of blood. FBI analysis identified DNA from swabs taken of

-5-
the abandoned structure, Lizardi's truck, the twenty-dollar bill

from the parking lot, and the blood-stained flip-flops, as

Lizardi's.

B. Procedural History

In February 2007, a grand jury returned a three-count

indictment charging Casey with (1) carjacking with the intent to

cause death or serious bodily injury (18 U.S.C. § 2119(3)); (2)

possession, use, discharge, carrying of firearms during a crime of

violence resulting in another's death (18 U.S.C. § 924(j)); and

(3) being a felon in possession of a firearm (21 U.S.C. §

922(g)(1)). Casey pleaded not guilty on all counts. That July,

the government filed a notice of intent to seek the death penalty.

Pretrial proceedings took place over six years, mostly

concerning the death penalty. Suppression motions were heard in

the fall of 2011 and rulings issued in January 2013. Casey moved

to suppress the evidence discovered in his bedroom on the ground

that his grandparents had neither actual nor apparent authority to

consent to the warrantless search, arguing the search was unlawful

and the evidence it yielded inadmissible. Finding that the room

routinely remained unlocked and that Casey's grandparents had

permission to enter it on a regular basis, the district court

denied this motion. Casey also moved to suppress Algarín's photo

array identification from the Fajardo parking lot; statements

elicited from him allegedly in violation of his Miranda rights;

-6-
words he exchanged with his wife while in custody; and photos of

Lizardi's decomposing body. These motions were denied as to all

but certain statements the district court concluded Casey made

after invoking Miranda protections.

In September 2012, the district court held a hearing on

ethical misconduct allegations lodged by the government against

defense counsel. Casey's subsequent motion to disqualify the

district court judge based on claims of impartiality and improper

ex parte communication with the government was denied.

Juror questionnaires were completed in October and

November 2012. Voir dire was held in February 2013. The district

court rejected Casey's Batson challenge to the government's

peremptory strikes of three black panelists. Trial then commenced

in March.

Casey argues that a number of erroneous rulings at trial

amounted to a violation of his right to confrontation and to

present a defense. In particular, he contends it was improper to

preclude evidence which would have shown that the PRPD declined to

properly investigate the possible involvement of Hernández, the

dealer with whom the August 1, 2005, drug buy had been arranged,

in Lizardi's death. The subject of such purported evidence

included a PRPD internal investigation into its own possible

negligence in the planning and execution of Lizardi's undercover

operation.

-7-
 After nine days of trial, the jury returned a verdict of

guilty as to all counts but rejected the death penalty. A judgment

of conviction was entered on June 13, 2013, and Casey was sentenced

to life in prison. This appeal followed.

II. Discussion

A. Prosecution's Use of Peremptory Challenges

Casey, a black American transplant from Brooklyn to

Puerto Rico, argues the district court erred in finding no equal

protection violation in the government's exercise of peremptory

challenges to exclude three black persons from the jury, he claims,

solely on the basis of race.

1. Batson Challenge

In Batson v. Kentucky, the Supreme Court reaffirmed the

longstanding principle that a criminal defendant's equal

protection rights are violated when jury selection at his trial is

"affected by invidious racial discrimination." United States v.

Girouard, 521 F.3d 110, 112 (1st Cir. 2008). The "[e]xclusion of

black citizens from service as jurors," stated Batson,

"constitutes a primary example of the evil the Fourteenth Amendment

was designed to cure." Batson v. Kentucky, 476 U.S. 79, 85 (1986).

While Batson initially focused on whether the defendant or an

excluded juror was part of a cognizable racial group, subsequent

cases broadened Batson doctrine to encompass an individual juror's

right not to be discriminated against -- making the relevant query

-8-
whether "a peremptory challenge was based on race." See Sanchez

v. Roden, 753 F.3d 279, 292 (1st Cir. 2014) (quoting Snyder v.

Louisiana, 552 U.S. 472, 476 (2008)).

Batson outlined a three-part burden-shifting framework,

a "Batson challenge," through which a defendant can dispute the

government's use of peremptory strikes as racially motivated and

demonstrate an equal protection violation. See Foster v. Chatman,

No. 14-8349, 2016 WL 2945233 at *8 (U.S. May 23, 2016). The

defendant is required to first make a prima facie showing that

race formed the basis for a peremptory challenge. The trial court

must consider all relevant "circumstantial and direct evidence of

intent as may be available" to determine whether an inference of

racial motivation may be drawn. Batson, 476 U.S. at 93, 96

(quoting Arlington Heights v. Met. Hous. Dev. Corp., 429 U.S. 252,

266 (1977)). For instance, a "pattern" of strikes against black

jurors, a "prosecutor's questions and statements during voir dire

examination and in exercising his challenges," Sanchez, 753 F.3d

at 292 (quoting Batson, 476 U.S. at 97), or the light a later

strike may shed on an earlier one, can support an inference of

discriminatory purpose, Snyder, 552 U.S. at 478 (noting that

persisting doubt as to a particular strike requires the court to

consider another strike for the bearing it might have on the

previous challenge); United States v. Charlton, 600 F.3d 43, 55

(1st Cir. 2010) (Lynch, C.J., concurring) (noting that seemingly

-9-
permissible individual strikes may need "a second look" if, when

taken together, they "create a concern that certain groups are

underrepresented").

If the defendant makes out a prima facie case, the burden

then shifts to the prosecution to offer an explanation for striking

the juror in question. The proffered explanation must not only

be racially neutral, but also "related to the particular case to

be tried." Sanchez, 753 F.3d at 292-93 (quoting Batson, 476 U.S.

at 98). Finally, based on these showings, the trial court must

decide whether the defendant has demonstrated purposeful

discrimination. Miller–El v. Cockrell, 537 U.S. 322, 328-29

(2003).

Statistical evidence is frequently used to show

impermissible discrimination. Courts look to the percentage of a

particular racial group removed from the venire by the strikes at

issue, and the percentage of strikes directed against members of

that group. Aspen v. Bissonnette, 480 F.3d 571, 577 (1st Cir.

2007). A prosecutor's intent may also be discerned by comparing

the treatment of white and non-white panelists. An instance where

a prosecutor's stated reason for striking a non-white potential

juror would apply to a white panelist who was permitted onto the

jury could serve as evidence of purposeful discrimination at the

final step of a Batson challenge analysis. Miller-El v. Dretke,

545 U.S. 231, 241 (2005); Aspen, 480 F.3d at 577.

-10-
 Here, the district court did not specifically find, but

rather assumed, that Casey satisfied his burden at Batson's first

step to show a prima facie case of discrimination. According to

Casey, however, the district court nevertheless committed clear

error at the third step by accepting at face value the prosecutor's

race-neutral explanations, rather than offering the defense an

opportunity to expose the explanations as pretextual. While we

conclude a Batson error was in fact committed here, because the

error was without doubt harmless, we affirm.

2. Standard of Review for Batson Challenge Ruling

We review a district court's factual determination that

the government was not motivated by race for clear error, and may

reverse only where we arrive at a "definite and firm conviction

that a mistake has been committed." United States v. González-

Meléndez, 594 F.3d 28, 35 (1st Cir. 2010); Charlton, 600 F.3d at

50. We are mindful that only the trial court observed first-hand

"the demeanor of the attorney who exercise[d] the challenge, along

with whether [each stricken panelist's] demeanor can credibly be

said to have exhibited the basis for the strike." United States

v. Mensah, 737 F.3d 789, 796 (1st Cir. 2013) (internal quotation

marks omitted).

3. Voir Dire

The jury pool contained 457 individuals, 13 of whom self-

identified as black, 4 as black/Hispanic, and 1 as Puerto

-11-
Rican/black (18 total black). The rest of the pool contained 256

Hispanic/Latino persons, 30 Caucasian, 58 no

answer/unrecognizable, and small numbers of other race/ethnicity

combinations. Of the 18 panelists who self-identified as black,

13 were not called or were excused at parties' stipulation. Of

the remaining 5, Casey and the government each struck 2 and 1 was

chosen as an alternate.

The 2 self-identified black jurors stricken by the

government were numbers 182 and 354.1 Casey moved to reinstate

those two. He also moved to reinstate stricken Juror 175, who had

not self-identified as black, but rather as "Latin." Casey

nevertheless himself claimed this potential juror was black,

arguing that she appeared dark-skinned, spoke in a manner

consistent with being black, and was Brooklyn-born.

The government responded that these three jurors were

stricken not for race-based reasons, but because they had

demonstrated they were incapable of serving on the jury in a death

penalty-eligible case. Specifically, it stated all three had

indicated an unwillingness to apply the death penalty according to

the law or in the facts of the instant case, even if the government

could prove them true.

1 Jurors 182 and 354 had identified themselves as "black" and
"black Hispanic," respectively.

-12-
 Crediting the government's race-neutral explanations for

its peremptories, the district court denied Casey's challenge. It

held that because Juror 175 had not self-identified as black, Casey

failed to make a prima facie case of purposeful discrimination;

but that even if she was black, "she expressed reluctance to apply

the death penalty in cases where the victim was not a child,

elderly, or otherwise a defenseless victim." As for Juror 182,

who self-identified as "Catholic (Black)," the district court

looked to his statement on his questionnaire and at voir dire that

the death penalty "is inhuman." Finally, with regard to Juror

354, who first identified as Hispanic and later modified this to

"Hispanic black," the district court concluded the government's

peremptory strike was not racially motivated because her response

to a hypothetical in which a defendant killed an unarmed law

enforcement officer was that life in prison, not the death penalty,

would be the appropriate punishment; Juror 354 did, however, say

she could take into account other aggravating factors to consider

the death penalty.

4. Discussion

There was no clear error in rejecting Casey's Batson

challenge on its merits. The district court was not convinced

Casey made out a prima facie case, but nevertheless assumed as

much, and proceeded to reject Casey's challenge at Batson's

subsequent steps.

-13-
 This was fortunate because the record demonstrates a

Batson error was in fact committed here, and we would be remiss

not to address it even though it changes little for Casey.

Specifically, the parties and the district court labored under the

misimpression that the defendant must be of the same race as the

stricken juror in order to raise a Batson challenge. The district

court even denied one of Casey's challenges on this very basis.

This runs afoul of Powers v. Ohio. 499 U.S. 400, 402 (1991) ("[A]

criminal defendant may object to race-based exclusions of jurors

effected through peremptory challenges whether or not the

defendant and the excluded juror share the same races.").

The error was, nevertheless, harmless. Casey, whose

Batson challenge was based almost entirely on numbers alone,

stresses that the prosecution's use of 3 of its 14 peremptory

challenges on blacks "strongly suggests that something more than

chance was at work." But the venire contained very few persons

who self-identified as black to begin with, especially after the

various excusals and stipulated dismissals. This is materially

different from where "the numbers are larger and the pattern is

inescapably apparent." Mensah, 737 F.3d at 801.

Casey's arguments on appeal misstate the statistics at

the crux of his argument. For instance, he claims the government's

use of the 3 of its 14 peremptories against black prospective

jurors constituted 42 percent of its peremptories; the actual

-14-
figure is 21 percent. He also asserts that 6.3 percent of the

prospective jurors called for individual voir dire were black (14

out of 222); but he does not contest the government's

representation that 18 individuals out of the entire 457-person

venire pool self-identified as "Black or mixed Black race" –- which

comes out to 3.9 percent of the pool. And just 3.7 percent of

that pool (12 regular jurors and 5 alternates, 17 altogether out

of the 457-person venire) made it onto the jury. "Thus, as is

common, the numbers considered in isolation are inconclusive in

determining whether [Casey] met his burden on step one." Sanchez,

753 F.3d at 303 (quoting Mensah, 737 F.3d at 802).

Casey's attempts to compare the opinions about the death

penalty shared by stricken panelists and non-black venirepersons

are also to no avail. First, he made no such argument before the

district court. And on appeal, he declined to place it in his

opening brief (which instead focuses on faulting the government

for failing to strike other non-black jurors who were in favor of

the death penalty). Only in his reply brief does he attempt to

liken opinions of two stricken black panelists with those of non-

black persons who were permitted to serve on the jury. Not only

are arguments raised for the first time in an appellate reply brief

ordinarily deemed waived, United States v. Eirby, 515 F.3d 31, 36

n.4 (1st Cir. 2008), the evidence underlying these arguments is

hardly conclusive and would not pass the rubric of plain error

-15-
review which applies to contentions raised for the first time on

appeal, United States v. Matos, 611 F.3d 31, 35 (1st Cir. 2010).2

Against Casey's scant evidence of discriminatory intent,

we see no reason, nor do we see evidence in their questionnaires

or voir dire testimony, to question the legitimacy of the

government's proffered reasons for doubting the three jurors'

abilities to impose the death penalty in accordance with the law,

described above. Finally, it is simply untrue that the district

court denied Casey an opportunity to argue the government's

explanations for its strikes were pretextual. Casey's attorney

did respond to the government's justifications for its strikes,

simply stating that the reasoning offered "was not a valid basis

to strike jurors." Had Casey wished to share additional arguments

concerning pretext, he declined his chance to do so.

Finding no clear indications of purposeful

discrimination in the record, we affirm the rejection of Casey's

Batson challenge.

2 For instance, while Juror 177 did, like Juror 354, express that
the death penalty should be virtually automatic in cases involving
the murder of a child or elderly person, Juror 177 circled "1" on
a 1-10 scale on favor for the death penalty, 1 being the most
strongly in favor of the death penalty a respondent could be. Juror
354, by contrast, circled "5," reflecting she was undecided.

-16-
 III. Fourth Amendment Challenge to Casey's Bedroom Search

Casey claims error in the denial of his motion to

suppress evidence seized from his bedroom located in his

grandparents' home, because, he argues, the search was made without

proper consent.

A. Third-Party Consent to Warrantless Searches

The search of a person's home conducted in the absence

of a warrant issued upon probable cause is presumptively

unreasonable, but may be deemed permissible with valid consent.

United States v. Vázquez, 724 F.3d 15, 18 (1st Cir. 2013). A

prosecutor who seeks to rely on the lawfulness of a search bears

the burden to show the consent was "freely and voluntarily given."

Bumper v. North Carolina, 391 U.S. 543, 548 (1968). The

voluntariness of a consent to search turns on an assessment of the

totality of the circumstances. United States v. Mendenhall, 446

U.S. 544, 557 (1980). "Among the individualized factors bearing

on the vulnerability of the consenting party are age, education,

experience, intelligence, and knowledge of the right to withhold

consent." United States v. Barnett, 989 F.2d 546, 555 (1st Cir.

1993).

Consent is legally unavailing if given by a person who

does not have authority to do so. The consent of one who possesses

"common authority" over premises or effects, or some other

-17-
sufficient relationship to the premises or effects, is valid as

against the absent, nonconsenting person with whom that authority

is shared. Schneckloth v. Bustamonte, 412 U.S. 218, 245-46

(1973).

Common authority is not, however, to be implied from the

mere property interest a third party has in the property. See

Stoner v. California, 376 U.S. 483, 487-88 (1964) (finding the

warrantless search of a hotel room by consent of the hotel clerk,

absent the guest's consent, unlawful); Minnesota v. Olson, 495

U.S. 91, 96-97 (1990) (finding that a defendant's status as an

overnight guest in the upper unit of a duplex home was sufficient

for him to claim a protected privacy interest in the premises,

even though he was not given a key or left alone in the unit, and

did not pay for his stay).

Rather, common authority arises from having a shared

privacy interest in the premises or effects to be searched. United

States v. Matlock, 415 U.S. 164, 171-72 (1974) (reasoning that

through mutual use -- as opposed to mere joint access -- of the

subject property, all co-inhabitants have assumed the risk that

one among them might permit a search of their shared space); United

States v. DiPrima, 472 F.2d 550, 551 (1st Cir. 1973) (finding

search of defendant's room in his mother's house at the mother's

consent lawful, where his younger brother shared the room and his

-18-
mother used the room's closet, and defendant was present upon

officers' entry of the room and made no objection).

Yet, even where a party who gave consent did not have

authority to do so, a search is not unlawful if the searching

officer had a mistaken -- but objectively reasonable -- belief the

party in fact had the requisite authority. Thus "when the

invitation is accompanied by an explicit assertion that the person

lives there," the relevant question is whether "the surrounding

circumstances could conceivably be such that a reasonable person

would doubt its truth and not act upon it without further inquiry."

Illinois v. Rodriguez, 497 U.S. 177, 188-89 (1990) (finding search

lawful due to "apparent authority," where a former co-tenant of

the defendant suggested to police she lived there, calling it "our

apartment," and used her key to bring them inside, where they found

the defendant with drug paraphernalia and cocaine).

B. Standard of Review

This court reviews the ruling on suppression de novo,

accepting its underlying factual findings unless clearly

erroneous. United States v. Wurie, 728 F.3d 1, 2–3 (1st Cir.

2013). The issue of consent to search is reviewed de novo. United

States v. Schaefer, 87 F.3d 562, 565 (1st Cir. 1996).

-19-
 C. Background

The parties agree that the day after Casey's arrest and

while he was in custody, PRPD and FBI agents obtained consent from

Casey's grandparents, the Riveras, to search Casey's bedroom in

their house, where Casey had resided since 2002. PRPD agents

found the room door open, and taped it off upon arrival to preserve

the room for the FBI to inspect.

The district court was faced with conflicting testimony

from Mr. Rivera, on the one hand, and Agent Marrero and Lieutenant

Nazario of PRPD and FBI Special Agent Villareal, on the other. It

decided to afford "more credence to the testimony provided by [the

officers than by] Rivera." In doing so, it reasoned that Mr.

Rivera had contradicted himself about his employment status and

admitted he had illegally avoided paying taxes, and further that

while Mr. Rivera had motive to lie to protect his grandson, the

testifying officers had no similar stake in the case.

At the suppression hearing, Mr. Rivera testified that

the room was used only by Casey and contained only his personal

belongings; that Casey paid rent whenever he was working; that the

door had a lock and Mr. Rivera had a key to use only for

emergencies; that Casey had told his grandmother Mrs. Rivera she

could not enter the room, even to clean, and once moved out because

-20-
she had entered for housekeeping purposes; and that the officers

made him nervous.

Agent Villareal's rebuttal testimony portrayed the

situation quite differently. On the stand, he first recounted his

conversation with Mr. Rivera, who appeared "comfortable and

cooperative," and "wholeheartedly agreed" to an FBI search of the

house. According to Agent Villareal, Mr. Rivera said Casey "could

not afford to maintain his own household and provide his own food,"

so he received lodging and food "for free" with the Riveras. Agent

Villareal further recalled that, when asked whether Casey lived in

a specific room of the house, Mr. Rivera responded that Casey

indeed resided in a room in the "posterior part of the house."

Its "door did not have a lock," said Mr. Rivera, and both Riveras

"had free access to the room at all times, since it was their

residence." Agent Villareal's testimony then shifted to his

conversation with Mrs. Rivera, who provided him with aligning

information. She told Agent Villareal that Casey "did not have

enough income . . . to support himself and had to live with [the

Riveras] . . . rent free and was provided food by [the Riveras]."

Mrs. Rivera also said to Agent Villareal that Casey's room "did

not have a lock" and she "was free to come and enter at will."

Agent Marrero, who arrived at the Rivera home before the

FBI, similarly testified that when she got there, Mrs. Rivera said

-21-
she had "no problem" with Agent Marrero's presence, or the search

of the residence to which Mr. Rivera had given consent at the

police station. Agent Marrero further recalled finding the door

to Casey's room open, and taping it off to preserve evidence while

she waited for the FBI to arrive. When Agent Marrero asked who

could go into and use the room, Mrs. Rivera replied, "[o]nly the

three of them."

While Agent Nazario did not specifically recall Mr.

Rivera's response about who could enter the room, he, like the

other agents, testified that Mr. Rivera readily offered consent

and gave Agent Nazario no reason to believe he lacked authority to

do so. "[O]n the contrary," testified Agent Nazario, "Mr. Rivera

always identified himself as the owner of the house and as the one

who can authorize [a search]." Agent Nazario furthered that Mr.

Rivera "represented himself to be . . . the one that ordered people

around there."

In deeming the search lawful, the district court

emphasized heavily that Casey's grandparents cooperated fully with

the search, readily giving both oral and written consent, and

expressed no hesitation or lack of authority. It, in addition,

relied on the law enforcement officers' testimony to conclude that

Casey did not pay rent and did not lock his door, and that the

-22-
Riveras "had joint access to [Casey's] bedroom."3 The district

court concluded that Casey's grandparents had both actual and

apparent authority to consent to the search of Casey's room.

D. Discussion

Casey argues that his grandparents did not have the

requisite authority to consent to the search. He bases this solely

on Mr. Rivera's on-the-stand statements, which differ materially

from what the Riveras told officers prior to the search at the

Rivera home. Indeed, the law enforcement officers recount that

the Riveras affirmatively indicated they could freely enter and

exit the room and treated it as a part of their home, and never

once did the Riveras do or say anything to suggest otherwise.

There was no clear error in giving greater credence to

the three agents' testimony than to Mr. Rivera's. While their

statements do differ materially from Mr. Rivera's assertions on

the stand, the district court offered reasoning to back up its

determination: "Rivera . . . has close ties to defendant . . .

[and] may have been inclined to [protect] his grandson by providing

testimony . . . inconsistent with the information which he

previously gave to law enforcement agents . . . ." Mr. Rivera

3 The district court also found that the Riveras "entered [Casey's]
room regularly." Casey challenges this finding as clearly
erroneous. We need not resolve his challenge, as we do not rely
on this finding for our holding.

-23-
changed his tune between the time the officers asked to search

Casey's room -- when he readily shared that he had full access to

the room and authority to consent to its search –- and the moment

he took the stand at the suppression hearing. That Mr. Rivera

contradicted himself about his employment status provided further

reason to discredit his on-the-stand statements.

The question is thus whether the district court was

correct that the officers' testimony established that the Riveras

had common authority to consent to the search of Casey's bedroom.

The officers appear to have asked the Riveras very few questions.

We encourage law enforcement officers in the future to obtain

sufficient facts about a given living situation to not only give

them the ability to assess the validity of third-party consent

before initiating a search, but also to allow a reviewing court to

make an assessment in the event that consent is later challenged.

Nevertheless, the facts that the officers had before

them at the time of the search gave them sufficient reason to

believe that the Riveras had full "run of the house," see United

States v. Clutter, 914 F.2d 775, 777 (6th Cir. 1990), and

concomitant authority to permit the search. The facts before the

officers -- that the door to Casey's room was unlocked and open,

that Casey did not contribute to rent or food, that Mrs. Rivera

could enter the room "at will," and that Mr. Rivera "ordered people

around" at the house and "had free access to the room at all

-24-
times" -- permitted the officers to infer that there was an

arrangement in the residence that the Riveras could enter Casey's

room if and when they wished. The Riveras' statements at the time

of the search about their access to the room suggested a

relationship a reasonable person could conclude is more akin to

that between co-tenants, see Rodriguez, 497 U.S. at 179-80, than

that between a hotel clerk and guest, see Stoner, 376 U.S. at 488.

We thus agree with the district court that the Riveras had apparent

authority to consent to the search, and we do not reach the

question whether the Riveras had actual authority as well.

In so holding, we note that the facts of this case are

different from those in United States v. Whitfield, 939 F.2d 1071

(D.C. Cir. 1991), one of the cases on which Casey relies. In

Whitfield, the court held that a mother did not have apparent

authority to consent to the search of her adult son's room. Id.

at 1075. But there was no evidence that the mother said, as Mrs.

Rivera did here, that she could come and go from her son's room

"at will." Nor did Whitfield involve evidence that the mother

represented herself to be the one who "ordered people around" at

the house, as Mr. Rivera did. The court in Whitfield assumed that

the officers in that case could infer only that the mother

"generally" had "joint access" to the room, and so had the

"ability" or "legal right, to enter" that room, id. at 1074 -- an

inference that seemed to rest on little more than the facts of her

-25-
ownership and the door being unlocked. Here, by contrast, the

statements made by the Riveras when questioned by the officers

permitted the inference that there was an arrangement in the house

whereby the Riveras could come and go from Casey's room at will.

Finally, Casey's contention that the Riveras' consent

was not voluntary fails. While Mr. Rivera did testify that the

presence of numerous officers at his home made him nervous, the

record contains no suggestion that Mr. Rivera was coerced or

threatened, or that he did not comprehend the officers' questions.

He gave consent both at the police station before agents arrived

at his home, and again just before the search commenced. He also

did so in both English and in Spanish, orally and in writing.

Moreover, according to the officers' testimony, the Riveras both

appeared comfortable and at ease with the presence of law

enforcement in their home. Accordingly, we affirm the district

court's denial of Casey's motion to suppress evidence discovered

in his bedroom.

IV. Parking Lot Cashier's Photo Array Identification

Casey next challenges the order denying his motion to

suppress the photo array identification made by Algarín, the marina

parking cashier, as unduly suggestive. According to Casey,

Algarín was subject to undue pressure upon making the

identification. Casey additionally argues that he was not only

-26-
the darkest-skinned man in the array, but was the only black non-

Latino, and thus the only individual pictured with "a distinct,

long, thin facial structure, lacking the broad, flat face and wide

cheekbones typical of Latinos of African descent." He further

objects because there was no in-court identification subsequent to

the pre-trial array identification; Algarín merely authenticated

the array he had earlier initialed.

A. Validity of Out-Of-Court Identifications

A court should exclude an out-of-court identification

based on a photo array only in those "extraordinary cases" where

there is "a very substantial likelihood of irreparable

misidentification," a situation which could result in an unfair

trial in violation of the defendant's due process rights. United

States v. Henderson, 320 F.3d 92, 100 (1st Cir. 2003) (quoting

United States v. de Jesus-Rios, 990 F.2d 672, 677 (1st Cir. 1993)).

"Short of that point, such evidence is for the jury to weigh . . .

for evidence with some element of untrustworthiness is customary

grist for the jury mill." Manson v. Brathwaite, 432 U.S. 98, 116

(1977).

The defendant bears the burden to establish an out-of-

court identification was infirm. A two-step analysis is applied

to such contentions: (1) whether an "impermissibly suggestive"

procedure was used, and (2), if so, whether the identification was

-27-
nevertheless reliable under a "totality of the circumstances."

United States v. Rivera-Rivera, 555 F.3d 277, 283 (1st Cir. 2009).

Factors pertinent to this second step include

(1) the opportunity of the witness to view the criminal
at the time of the crime; (2) the witness' degree
of attention to the crime; (3) the accuracy of the
witness' prior description of the defendant; (4)
the level of certainty demonstrated by the witness
at the confrontation; and (5) the length of time
between the crime and confrontation.

United States v. DeCologero, 530 F.3d 36, 62 (1st Cir. 2008)

(quoting Henderson, 320 F.3d at 100).

B. Standard of Review

District court decisions denying motions to suppress

pre-trial identifications are reviewed de novo, but with deference

to any findings of fact. United States v. Brennick, 405 F.3d 96,

99-100 (1st Cir. 2005).

C. Facts

A few days after the search for Lizardi commenced, in an

interview with an FBI agent, Algarín described the driver of the

gray truck from whom he had accepted the twenty-dollar bill as "a

black male, approximately 25 years old, of average height with a

slim build and black hair."

-28-
 About five weeks later, Algarín was shown an array of

six photos by another FBI agent, Agent Moulier, and asked if he

could identify the person he had described. Agent Moulier

testified at the suppression hearing that the photo array

identification took place at Algarín's home in the presence of

Moulier and three other officers.4

Casey's photo appeared in the middle of the top row of

three photos, with another row of three photos below it. After

about two minutes of studying the array, Algarín picked out Casey's

picture.

Algarín did not testify at the suppression hearing. At

trial, Algarín was again shown the photo array that he had marked

with his initials eight years prior and repeated his identification

of Casey's photo.

D. Application

Casey offers no reason to believe, as he asserts, that

"[t]he pressure on Algarín to make an identification . . . was

undeniably overwhelming." The circumstances of the pre-trial

identification were not unduly suggestive. The array contained

4 According to Algarín's trial testimony, however, this took place
at the home of the parents of Algarín's boss, whose brother was an
agent seated at counsel's table during trial.

-29-
six black-and-white photos. As the district court noted, while

Casey had the darkest complexion among them, each individual could

have been described as black, and they shared relatively similar

facial features, a near-identical haircut, and groomed eyebrows.

See DeCologero, 530 F.3d at 62 (while officers creating a photo

array must make "every effort reasonable under the circumstances"

to conduct a "balanced representation," they need not "search for

identical twins"). The array displayed no names, and bore a

disclaimer in Spanish and English stating that the person the

witness saw may or may not appear among the presented pictures.

Agent Moulier testified the array was prepared according to "policy

about the race, sex, skin color of the person," based on the

descriptions Algarín and other parking lot witnesses gave of the

gray truck's driver. While the record contains no documentation

of the array assembly procedure or any report about the

identification process, Casey points us to no authority requiring

the government provide such evidence -- a point especially

important here, where the defense bears the burden to demonstrate

the identification was infirm. Nor does Casey suggest the

officers who created the photo array and spoke to Algarín employed

any improper suggestive or coercive tactics.

Even had the circumstances of the array identification

been unduly suggestive, the identification was nevertheless

reliable. Algarín had occasion to commit the truck driver's face

-30-
to memory during their interaction regarding the driver's lost

ticket, which prompted Algarín to ask for the driver's name,

address and phone number for a lost ticket form. The driver,

furthermore, was unable to provide his license or registration

documents, and told Algarín to keep the change from a twenty-

dollar bill tendered for a parking fee Algarín testified could not

have been more than two or three dollars.

Also, while general, Algarín's description of the driver

is consistent with his selection from the photo array, made a few

weeks after his earlier contact with a driver leaving a significant

gratuity. See id. at 61-63 (finding no issue with an array

identification made two to three years after the incident). The

district court thus did not err in denying Casey's motion to

suppress this photo array identification evidence, and we affirm

its ruling.

V. Miranda Challenge to Admission of Statements Made to
Officers While in Custody

Casey next appeals the order granting in part and denying

in part his motion to suppress statements he made while in custody.

He contends the district court erred in failing to suppress

statements elicited by interrogation after he invoked his right to

remain silent, and in its factual determination of when Casey

invoked his right to an attorney. The district court further

-31-
erred, argues Casey, in finding admissible statements overheard by

a law enforcement officer that Casey made to his wife, Crystal

Peña, while in custody.

A. Miranda Rights

Admissibility of statements made after the right to

remain silent has been invoked depends on whether, under a totality

of the circumstances, the right was "scrupulously honored."

Michigan v. Mosley, 423 U.S. 96, 104 (1975). In addition, Miranda

protection extends to statements made in response to "any words or

actions on the part of the police . . . that [they] should know

are reasonably likely to elicit an incriminating response." Rhode

Island v. Innis, 446 U.S. 291, 301 (1980).

B. Standard of Review

This court reviews matters of law related to denial of

a motion to suppress de novo, while reviewing underlying findings

of fact only for clear error. We must uphold the district court's

denial of a motion to suppress if any reasonable view of the

evidence supports doing so. United States v. Rojas Tapia, 446

F.3d 1, 3 (1st Cir. 2006).

C. Facts

Upon his arrest, Casey was taken to PRPD headquarters

and signed a form acknowledging he had been informed of his rights

-32-
before answering questions from PRPD Agent Diana Marrero in the

early hours of August 2. At the suppression hearing, Agent Marrero

testified that she both read the form to Casey in Spanish and

witnessed him read and voluntarily sign the form, both writing

"sí," "yes" in Spanish, and verbally indicating his willingness to

speak with her.

Over the next several hours, Casey led officers to the

homes of other individuals in the drug trafficking world,

purportedly cooperating with their search for Lizardi. After this

excursion turned up no clear leads, Casey was taken to another

PRPD station at Canóvanas, where the FBI assumed jurisdiction over

him at around 6:00 a.m. While Agent Marrero did not interview

Casey at Canóvanas, she testified at trial that while he was there,

Casey asked to see his grandfather and told Agent Marrero he was

no longer interested in speaking with law enforcement. Casey's

grandfather arrived at that point and gave consent to the search

of Casey's bedroom. Casey was, in the meantime, transferred to

the Luquillo precinct, and then to FBI premises in Ceiba, shortly

after noon on August 2.

At Ceiba, Agent Luis Moulier read Casey his Miranda

rights and Casey exercised his right to remain silent. Agent

Moulier refrained from further questioning.

-33-
 Close to 2:00 p.m. that afternoon at Ceiba, Agent Marrero

approached Casey once more, this time confronting him with the

evidence found in his bedroom. She did not repeat his Miranda

rights before initiating this conversation. Casey responded with

statements whose admission he now challenges: "maybe he is alive,

maybe he is dead." When pushed for details, Casey refused to

elaborate, stating only that "there [was] already enough

evidence," and he would "go down" with that evidence. Agent

Marrero recalls then appealing to Casey's emotions as a "family

man," asking him to share any details he could about Lizardi's

location in case Lizardi was still alive and could be rescued. To

this, Casey responded, "I don't know what you are talking about."

At some point in the course of this exchange, Casey asserted his

right to an attorney.

Casey's suppression motion concerns one additional

interaction that day. Shortly after 4:00 p.m., agents permitted

Casey's wife Peña and their infant child into an interview room

where Casey was handcuffed to visit with him in the presence of

Agent André Vachier-Serrano. In his exchange with Peña as

overheard by Agent Vachier-Serrano, Casey made statements

including "[k]illing a cop is a federal case," and "[T]hey seized

a lot of evidence at the house but they don't have the body,

anyway, he was an undercover cop and he knew he was on his way to

do a drug deal with me and could come out dead or alive," which

-34-
Casey now contends the district court erred in declining to

suppress.

In this same conversation, Casey also advised Peña to

obtain employment certificates from his social worker and change

the dates on them to obtain a loan. Their exchange also included

reference to some prior offense "when they got us with drugs and

we came out." Casey asserts this entire interaction comprised an

unconstitutional interrogation, and none of its content should

have been admitted.

The district court granted in part and denied in part

Casey's motion to suppress the statements made to Agent Marrero at

Ceiba and those overheard by Agent Vachier-Serrano. Below, Casey

contended to no avail that all his statements to Agent Marrero

should have been suppressed because he was assaulted upon arrest,

leading him to waive his Miranda rights involuntarily. The

district court found no evidence to substantiate the purported

assault, and ruled that even had Casey been assaulted, the waiver

he gave at PRPD headquarters was voluntary. Finding that Casey

had, however, asserted his right to counsel during his interview

with Agent Marrero at Ceiba just before Agent Marrero appealed to

Casey's sensibilities as a father, the district court suppressed

Casey's statements made thereafter. Finally, the district court

concluded that Casey's conversation with Peña was not a custodial

-35-
interrogation or equivalent to FBI questioning, and declined to

suppress any of what Agent Vachier-Serrano overheard.

D. Application

On appeal, Casey again argues all his statements to Agent

Marrero should have been suppressed. He asserts that the

invocation of his right to remain silent at Canóvanas and again at

Ceiba with Agent Moulier, prior to the Ceiba interview with Agent

Marrero, should have rendered all his statements to Agent Marrero

at Ceiba inadmissible.

While Miranda does not categorically forbid the

resumption of questioning once a person in custody has asserted

his or her rights, under Mosley, whether statements obtained after

the detained person has decided to remain silent are admissible

depends on whether, under a totality of the circumstances, the

person's "right to cut off questioning was scrupulously honored."

423 U.S. at 104 (internal quotation marks omitted). On appeal,

Casey contends that questioning him after both instances in which

he asserted his Miranda rights not to speak was impermissible under

Mosley.

Casey made no such argument below. He rather proceeded

on the theory that the alleged assault by PRPD officers rendered

any waiver of his Miranda rights involuntary. He cannot now raise

-36-
a new basis for suppression, and accordingly we deem this argument

waived. United States v. Torres, 162 F.3d 6, 11 (1st Cir. 1998).5

Casey next claims error in the factual determination of

the point in time during the Ceiba interview with Agent Marrero

Casey at which invoked his right to an attorney. Because it was

impossible to tell, he argues, no part of the conversation should

have come into evidence. There was no clear error in placing

Casey's invocation of his right to an attorney after his statement

that Lizardi was "maybe alive" or "maybe dead" but before Agent

Marrero's appeal to his values as a father, and admitting only

part of the conversation accordingly. Agent Marrero testified as

much, and her notes corroborated this finding.

Finally, the district court was correct to conclude that

Casey's conversation with his wife was not the result of an

5 Even if his assertions on appeal about his earlier invocations
of the right to remain silent are accurate and not waived,
statements made after a defendant has invoked his right to remain
silent may nevertheless be admissible. Factors to determine
whether such statements should be admitted include the time elapsed
between interrogations, the provision of fresh Miranda warnings,
the scope of the follow-up interview, and the zeal of the officers
in pursuing questioning. Mosley, 423 U.S. at 104-06; United
States v. Hsu, 852, F.2d 407, 410 (9th Cir. 1998). It is not in
dispute that several hours passed between interviews, and that
Casey was moved to different locations. He moreover offers no
indication that the officers approached him with any particularly
coercive tactics.

-37-
interrogation. "A volunteered statement is not the product of

interrogation and not subject to suppression, even if warnings

have been provided." United States v. Jackson, 544 F.3d 351, 357

(1st Cir. 2008). Casey offers no evidence that the FBI brought

Peña in for interrogation purposes. Rather, the record reflects

that she had been following Casey to the various locations he was

taken and wanted to meet with him of her own volition. See Arizona

v. Mauro, 481 U.S. 520, 530 (1987) (a defendant's voluntary

statements to his spouse while in custody overheard by law

enforcement need not be suppressed). Casey also does not dispute

that he was fully aware Agent Vachier-Serrano was present and

within earshot. We therefore affirm the district court's order

granting in part and denying in part Casey's motion to suppress

statements he made while in custody.

VI. Challenge to Admission of All Statements Due to Lack of
Prompt Presentment

Casey argues for the first time on appeal that all of

his statements should have been suppressed for failure to promptly

bring him before a magistrate judge. He admits, however, that he

declined to raise this argument below. Motions to suppress must

be raised prior to trial, and failure to do so in a timely manner

constitutes waiver. Fed. R. Crim. P. 12(b)(3)(C); United States

v. Dietz, 950 F.2d 50, 55 (1st Cir. 1991) ("Arguments not

seasonably addressed to the district court may not be raised for

-38-
the first time in an appellate venue."). Casey offers no authority

to suggest otherwise. We therefore deem this argument waived.

VII. Challenge To Alleged Trial Errors Infringing Casey's Right
to Confrontation and to Present a Defense

Next, Casey urges that the district court committed a

series of errors throughout his trial, including: (1) admitting

irrelevant and unduly prejudicial evidence under Federal Rule of

Evidence 404(b), specifically statements he made to Peña while in

custody and photographs of Lizardi's body; (2) limiting Casey's

cross-examination of agents about investigation efforts prior to

August 1, 2005; and (3) rejecting under Daubert the preliminary

report from an internal PRPD investigation and its recommendation

of sanctions against several involved officers.

A. Standard of Review

Preserved evidentiary objections are reviewed under an

abuse of discretion standard. This court must nevertheless affirm

even where it finds error, as long as it deems the error harmless.

United States v. Rosado-Pérez, 605 F.3d 48, 54 (1st Cir. 2010).

A series of evidentiary issues, none of which individually warrants

reversal, may have a cumulative effect, rendering the trial unfair.

United States v. Sepúlveda, 15 F.3d 1161, 1195-96 (1st Cir. 1993).

Where, as here, the argument that trial errors had a cumulative

effect upon a defendant's right to confrontation and to present a

-39-
defense is raised for the first time on appeal, review is under a

plain error standard. United States v. Sánchez-Berríos, 424 F.3d

65, 73 (1st Cir. 2005).

B. Irrelevant and Unduly Prejudicial Evidence

1. Federal Rules of Evidence 402, 403, and 404(b)

Rules 401 and 402 provide that all "relevant" evidence,

or that which has a "tendency to make a fact more or less probable

than it would be without the evidence," is admissible. However,

under Rule 403, "[t]he court may exclude relevant evidence if its

probative value is substantially outweighed by a danger of one or

more of the following: unfair prejudice, confusing the issues,

misleading the jury, undue delay, wasting time, or needlessly

presenting cumulative evidence." Under Rule 404(b), evidence of

past wrongs is not admissible character evidence to demonstrate a

defendant's propensity to behave in a certain manner.

2. Application

a. Casey's Statements to Peña

Agent Vachier-Serrano first testified as to statements

Casey made to his wife about falsifying an employment certificate,

described above. The court denied a hearsay objection and granted

a relevance objection. It then gave a limiting instruction to the

jury, stating that because the "references to fraudulent conduct

-40-
. . . ha[ve] no bearing on the nature of the charges . . . you may

disregard."

The government then elicited further testimony from

Agent Vachier-Serrano about the current investigation and a

reference Casey made to a prior case. He recalled statements from

Casey such as "in the house they seized a lot of evidence but that

they weren't going to find the body," "[Casey] was going to come

out of this case well," and "reference to another case, a drug

case that he had with [Peña] . . . [a]nd they had come out of the

case okay." Casey's relevance objection was overruled.

Casey argues, for the first time on appeal, error in the

refusal to strike the testimony about falsifying an employment

certificate, and denial of his objection to Agent Vachier-

Serrano's reference to the prior drug offense. Casey contends

this evidence had no probative value, and was merely introduced

for the impermissible purpose of showing propensity.

There was no plain error in finding to the contrary.

The limiting instruction as to Casey's instructions to Peña to

falsify an employment certificate made clear to the jury that the

fraudulent conduct Casey was describing to Peña had no bearing on

this trial. See United States v. Williams, 717 F.3d 35, 42 (1st

Cir. 2013).

-41-
 Nor does the court's rationale to permit Agent Vachier-

Serrano's testimony about the prior drug case constitute an abuse

of discretion. While it is conceivable that Casey's statements

about the prior drug offense perhaps reflected his consciousness

of guilt, any such error was likely harmless. Other evidence

alerted the jury to Casey's ties to the criminal underworld; it

was, indeed, no secret that Casey led the police around for several

hours just after his arrest to point out to them other drug

traffickers with possible tips on Lizardi's whereabouts. It is

doubtful that knowledge of an unspecified prior drug offense could

convince a jury to convict Casey of the charges in this case.

b. Photographs of Lizardi's Body

The government introduced nearly twenty photos of

Lizardi's decomposing body. Five were admitted, over objection,

through a PRPD sergeant's testimony about following the body's

stench to locate it; fourteen were autopsy photographs to show

bullet trajectories, to which Casey did not object; and two, to

which Casey did object, were of the body at different angles,

showing what it looked like after it was recovered. Copies of

only the last two were provided for this court's review on appeal.

Casey contends the objected-to photos were irrelevant and

inappropriately submitted to spur an emotional reaction from the

jury.

-42-
 It is more than plausible that the first five photos

corroborated various pieces of testimony: the body had been

dragged down the hill to its discovered location; Casey's statement

to Peña that the body would be difficult to find; and the time it

took to locate the body. The jury received instruction prior to

the photos' admission not to be swayed by emotion in viewing this

evidence. The last two photos might likewise have corroborated

testimony that the body had been left outdoors for a few days.

See United States v. Cruz-Kuilan, 75 F.3d 59, 61 (1st Cir. 1996)

(no abuse of discretion in admitting photographic evidence of

victim's wounds in a carjacking case, as such evidence spoke to

elements of the offense, including force, violence, and/or

intimidation).

"A decision by the district court on a Rule 403

determination must stand absent a demonstration of extraordinarily

compelling circumstances." United States v. Lombard, 72 F.3d 170,

190 (1st Cir. 1995) (internal quotation marks omitted). Casey

makes no such demonstration with regard to these photos.

Especially among the array of other photographs and forensic

evidence put before the jury, we do not find admission of two

additional photos of the body as agents discovered it to rise to

an abuse of discretion.

-43-
 C. Orders Limiting Cross-Examination of PRPD and FBI Agents

According to Casey, the district court's rulings

limiting cross-examination of Agents Agosto and Moulier, and

Commander Morales, improperly prevented him from eliciting

testimony essential to the theory of his case -- that another

person, Hernández, was actually Lizardi's killer, and that the

investigation had unduly zoomed in on Casey while ignoring leads

pertaining to Hernández. Casey had hoped to demonstrate that

internal administrative PRPD investigations had found officers

negligent in planning the undercover drug buy which had resulted

in Lizardi's death.

The Confrontation Clause of the Sixth Amendment

guarantees criminal defendants the right to cross-examine

witnesses who testify against them. United States v. Vega Molina,

407 F.3d 511, 522 (1st Cir. 2005). This right is not without

limits, however; the district court wields considerable discretion

to impose "reasonable limits" on cross-examination. United States

v. Raymond, 697 F.3d 32, 39-40 (1st Cir. 2012). We review de novo

whether a defendant was afforded a reasonable opportunity to

impeach a witness, and for abuse of discretion limitations the

trial court imposed on that opportunity. Id.

-44-
 1. Agent José Agosto

Agent Agosto was Lizardi's supervisor. Casey first

argues he was prevented from impeaching Agent Agosto on the basis

of a PRPD internal disciplinary investigation involving Agent

Agosto. It is clear that the district court did not abuse its

discretion in limiting questioning on this subject, however.

After a sidebar dispute about whether defense counsel could ask

about the investigation's preliminary findings -- that Agent

Agosto had acted negligently –- as opposed to its ultimate

conclusion of no negligence, the court permitted defense counsel

to question Agent Agosto about the former as long as counsel made

clear that it had been a preliminary decision. As cross-

examination was not materially limited here, we conclude there was

no error. Even had questioning been limited, preliminary

investigatory results contradicted by a final determination have

limited probative value, and pose the risk of engendering

significant confusion for jurors. Fed R. Evid. 403.

Casey also argues abuse of discretion in keeping him

from impeaching Agosto based on purportedly conflicting statements

about whether Lizardi, Casey and Hernández met a few days before

the events of August 1, 2005. On the stand, Agent Agosto testified

Hernández and Lizardi did not meet on July 28, 2005, days before

the events of August 1. Defense counsel moved unsuccessfully to

-45-
introduce, as a prior inconsistent statement, a report prepared in

2005 by Agent Agosto documenting that such a meeting did occur, on

information Lizardi had shared with Agosto at that time. While

the district court excluded the report, it did allow defense

counsel to question Agent Agosto about the July 28 meeting. Agent

Agosto's answers revealed that Lizardi, with Casey at the Holiday

Inn, spoke to Hernández by phone on July 28 to plan the August 1

drug buy (although Agent Agosto maintained that Hernández was not

present in person).

Any error by the court here was certainly harmless.

Casey was able to use Lizardi's telephone records to impeach Agent

Agosto's testimony to show that Lizardi did speak to Hernández on

July 28.

2. Commander Morales

The district court similarly did not err in limiting

Morales's testimony to events on August 1, 2005, and thereafter as

direct examination covered only the events on and after August 1.

The court informed Casey of his right to call Morales as a defense

witness to elicit testimony about the July 28 meeting that

purportedly took place prior to August 1. In addition, Morales

testified that he had never met Lizardi, and admitted that his

information was based on reports from other officers, introducing

several levels of hearsay.

-46-
 3. Agent Moulier

Casey further contends the district court abused its

discretion in limiting questioning about Agent Moulier's review of

investigative reports describing Lizardi's contacts with

Hernández. Agent Moulier testified extensively about efforts to

investigate Hernández and evidence gathered against him; it was

not an abuse of discretion to find questions about Hernández being

the drug buy contact duplicative.

Casey's additional arguments that these limitations

precluded him from contending that authorities "dropped the ball

when they failed to follow up on statements and evidence in their

hands implicating Hernández" is also without merit. While the

court did exclude statements deemed improper opinion testimony

from a non-expert witness, it did permit Casey's counsel to elicit

a critical point on cross-examination -- that hair found on the

discovered black backpack did not belong to Casey or Lizardi (with

the caveat that the results could have been affected over time),

but was not tested against Hernández.

D. Police Practices Expert Testimony

According to Casey, the district court further abused

its discretion in precluding him from presenting a police practices

expert, Dr. William Gaut. Casey's intent was to have Dr. Gaut

opine on whether the undercover operation was planned up to

-47-
standards. While Casey stresses on appeal the relevance of Dr.

Gaut's testimony, Dr. Gaut testified that he never saw any PRPD

standards or policies for undercover work; and that he was not

even aware whether the FBI or PRPD were part of the Commission for

Accreditation of Law Enforcement Agents. The district court

furthermore reasoned that such evidence could confuse the jury,

tasked with deciding Casey's culpability, not whether PRPD

committed negligence. It was hardly an abuse of discretion for

the district court to exclude expert testimony from someone with

little apparent knowledge of the standards with which FBI and PRPD

investigations must comply. See Ruiz-Troche v. Pepsi Cola of P.R.

Bottling Co., 161 F.3d 77, 81 (1st Cir. 1998) (expert testimony

must be reliable, as well as relevant in the sense that "the

expert's proposed opinion, if admitted, likely would assist the

trier of fact to understand or determine a fact in issue").

E. PRPD Internal Investigator Rodríguez-Torres Testimony and
Report
Nor was there an abuse of discretion in refusing to allow

testimony from a PRPD internal affairs investigator, Agent Carlos

Rodríguez-Torres, and his preliminary report finding negligence in

the planning of Lizardi's undercover operation, to impeach Agent

Agosto's testimony. Significant confusion arose before the

district court over whether sanctions were recommended in the

report (they were not -- the recommended approach was ultimately

-48-
reduced to orientation training), and whether it represented a

final administrative determination.

Moreover, it became clear that Agent Agosto had never

seen this preliminary report, and thus could not be impeached with

its contents. Finally, the government was unable to demonstrate

that the officers whose statements appeared in the report had

personal knowledge of the events they were describing -- or, for

that matter, that Agent Rodríguez-Torres had sufficient personal

knowledge. See Fed. R. Evid. 602. The district court thus did

not abuse its discretion in excluding testimony concerning the

Rodríguez-Torres report.

F. Cumulative Effect

Casey argues the cumulative impact of this purported

litany of errors precluded him from receiving a fair trial. Even

if some, or all, of the above decisions were mistakes, they appear

to concern evidence tangential to the government's case against

Casey. Indeed, even had Casey been able to implicate Hernández

as the more likely perpetrator with some of the above evidence, or

to undermine the PRPD's credibility, he would not have been able

to eviscerate the positive evidence against him.

This court is to weigh trial errors "against the

background of the case as a whole," paying attention to factors

including "the nature and number of errors committed; their

-49-
interrelationship, if any, and combined effect; how the district

court dealt with the errors as they arose" and "the strength of

the government's case." Sepúlveda, 15 F.3d at 1196. Given our

determinations that the district court did not abuse its discretion

in making any of these rulings -- let alone commit harmful

error -- we find no cumulative impact on the fairness of the trial

Casey received.

VIII. Confrontation Clause Challenge to Expert Witness

Testimony

For the first time on appeal, Casey argues his Sixth

Amendment right to confrontation was violated when a purported

surrogate witness, Carna Meyer, testified to introduce three DNA

evidence reports. Specifically, Casey argues that under

Bullcoming v. New Mexico, 131 S. Ct. 2705, 2713 (2011), he was

unconstitutionally deprived of any chance to face the biologist

whose work underpinned the conclusions drawn by the reports about

which Meyer testified.

A. Standard of Review

Objections forfeited below are reversible for plain

error. Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S.

725, 732 (1993) ("plain errors" are "defects affecting substantial

rights"). By contrast, where a defendant has affirmatively waived

his or her objection, or, in other words, conveyed a "considered

-50-
decision not to avail [him or her]self of a procedural right," we

need not even search. United States v. Medina, 427 F.3d 88, 91

(1st Cir. 2005) ("[O]ur even contemplating a claim of error [in

such a case] would imply an obligation on trial judges to second-

guess counsel in a way that would disturb that entitlement. This

will not do."). Here, via his counsel, Casey affirmatively

announced he had no objection to admission of Meyer's testimony

and the three reports, and cannot now claim a violation of

constitutional rights merely to reverse course on a trial strategy

that proved unsuccessful.

B. Background

Before trial, expert Brendan Shea had prepared a report

based on analysis of the gathered physical evidence, which showed

that DNA from the twenty-dollar bill matched Lizardi; DNA from the

floors and swabs of the abandoned structure matched Lizardi; and

Lizardi was "potentially the major contributor" of DNA on the flip-

flops found in Casey's bedroom. The report was not signed or

certified by anyone but Shea.

The government originally designated Tina Delgado as the

witness who would introduce the report. Casey moved under

Crawford v. Washington, 541 U.S. 36 (2004), Melendez-Diaz v.

Massachusetts, 557 U.S. 305, 309 (2009), and Bullcoming, 131 S.

Ct. at 2713, to exclude her testimony on the grounds that Delgado

-51-
did not bear a sufficient connection to the scientific testing

involved in the report's preparation. The government committed

to examining whether Delgado's testimony would comply with

evidentiary rules and to supplying an appropriate witness, and the

motion was denied without prejudice as concerning an issue not yet

ripe.

On the eve of trial, the government designated two

additional DNA reports authored by Meyer, as well as Shea's report.

It then called Meyer to introduce all three. Regarding Shea's

report, Meyer testified that she had "reviewed all of the data,

the notes, and the underlying paperwork" and "agreed with all of

its interpretations." Critical here is that when the government

moved to admit the three reports into evidence, the district court

asked Casey if there were any objections -- to which his counsel

squarely replied, "[n]o, Your Honor." Nor did Casey lodge a single

objection to Meyer's endorsement of Shea's report, or her

subsequent testimony about all the reports' specific results. And

during a sidebar the next day on a separate issue, Casey's counsel

affirmed this stance, stating the defense "ha[s] not disputed the

DNA."

C. Application

Given Casey's express waiver -- offered after the

government made clear its intent to admit all three reports with

-52-
Meyer's testimony, and tainted by no subsequent indications of

misunderstanding or regret prior to this appeal -- we have little

further to do in the way of analysis, and must deny his objection

without reaching its merits. United States v. Soto, 799 F.3d 68,

96 (1st Cir. 2015) (declining to reach the merits of a

confrontation objection raised on appeal, where the circuit

interpreted the defense's silence below to indicate the defense

saw nothing objectionable).6

IX. Denial of Recusal Motion

6 It may nevertheless be worth briefly examining how this move
might have been an intended tactic of Casey's trial strategy. At
closing, Casey's counsel neatly summed up their theory of the case:
that the PRPD and FBI investigation was so affected by "tunnel
vision" that it leapt to pin Lizardi's death on Casey without
adequately investigating other potential suspects, chiefly
Alexander Hernández. It was in service of this narrative that,
throughout the trial, Casey's counsel highlighted how the FBI could
have collected more DNA samples and conducted more DNA tests that
could have implicated Hernández. One such instance, she argued,
was when the blood on Casey's sandal was revealed to contain "a
mixture of DNA," indicating "more then [sic] one contributor," but
was not subjected to further analysis. Such a strategy, we think,
hinged on the accuracy and admission of the FBI's DNA analyses.
There otherwise would have been little reason for the jury to
believe that more testing would have led the FBI to Hernández.
Although this is mere speculation on our part, Casey, it appears,
had plausible reason to welcome admission of the government's DNA
reports.

-53-
 Casey's final challenge concerns his unsuccessful motion

for the district court's recusal after it initiated a disciplinary

proceeding against the defense, prior to the start of his criminal

trial. The disciplinary proceeding was based on a complaint the

government lodged asserting that Casey's team had interviewed

Hernández without permission from his counsel, and asked him to

recant in exchange for help in a related state court case.

While investigation of the defense's purported

misconduct was referred to another judge, Casey's particular

objection and reason for requesting recusal was that, in the course

of the proceeding, the district judge allegedly met with the

prosecution ex parte for assistance reviewing subpoenaed

evidentiary documents. Casey also contends that the mere fact

that the district judge undertook such an ethics investigation so

close to the eve of trial created an impermissible appearance of

impropriety.

A. Rules of Recusal

According to 28 U.S.C. § 455(a), any judge or justice

shall disqualify him or herself in any proceeding where his or her

impartiality might reasonably be questioned. Canon 3(A)(4) of the

Code of Conduct for United States Judges states that judges should

not initiate or consider ex parte communications on pending

matters. It does provide the exception, however, that ex parte

-54-
communication is permissible for administrative purposes, only if

it is limited to non-substantive matters and the judge reasonably

believes no party will gain an advantage as a result.

B. Standard of Review

A district court's decision not to recuse itself is

reviewed for abuse of discretion. United States v. Pulido, 566

F.3d 52, 62 (1st Cir. 2009). This court must sustain the district

court's ruling unless it can find the decision was not reasonable

and is unsupported by the record. Id.

C. Background

The district court maintained that communications with

the government about the subpoenaed documents were limited to

determining whether the documents were irrelevant and sent to

chambers in error. Casey does not contest that the judge's

secretary asked the prosecutor to come review the documents, or

that the government's interaction with the judge was minimal. The

record does not suggest that the prosecutor and judge at any point

discussed the merits of Casey's case, reviewed the substance of

the documents together, or had any other substantive exchange.

D. Application

Casey has not brought to light facts on which we might

find the district court abused its discretion in declining his

-55-
recusal motion. It was within the pale of the district judge's

duties to act on the ethical misconduct allegations; and it even

took the step of referring the misconduct proceeding to another

judge, altogether severing its fate from that of Casey's criminal

proceedings. Casey also points to no evidence that the

government's ex parte communications with the district judge

involved either the merits of his criminal case or the ethical

misconduct allegations. Cf. Haller v. Robbins, 409 F.2d 857, 859

(1st Cir. 1969) (finding a due process violation in a habeas case

where the subject of an ex parte communication by the government

to the sentencing judge was a hearsay statement about the

petitioner's conduct). Without more, we must affirm the district

court's ruling.

X. Conclusion

Casey appeals a host of district court decisions made

before and during his jury trial. Upon careful consideration, and

for all the above reasons, we affirm.

AFFIRMED

-56-