United States v. Veloz

United States Court of Appeals
For the First Circuit

No. 17-2136

UNITED STATES OF AMERICA,

Appellee,

v.

DANNY VELOZ,

a/k/a MAESTRO, a/k/a JOIL RIVERA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Barron, Selya, and Boudin,
Circuit Judges.

Mark W. Shea, with whom Shea & LaRocque, LLP was on brief,
for appellant.
Mark T. Quinlivan, Assistant United States Attorney, with
whom Andrew E. Lelling, United States Attorney, was on brief, for
appellee.

January 24, 2020
 BARRON, Circuit Judge. Danny Veloz challenges on

various grounds his 2017 conviction for conspiracy to commit

kidnapping in violation of 18 U.S.C. § 1201(c), for which he

received a prison sentence of life. Finding no merit to his

challenges, we affirm.

Veloz's conviction stems from his alleged role as the

mastermind of a Massachusetts-based scheme to kidnap drug dealers

and hold them for ransom. On July 23, 2012, a victim of the

scheme, Manuel Amparo, alerted law enforcement that he had just

escaped from having been kidnapped. Three men were initially

arrested in connection with that crime, one of whom, Henry

Maldonado, began cooperating with the authorities.

Maldonado informed the authorities that Veloz was the

head of the kidnapping crew. Maldonado told them that Veloz would

attach GPS devices to the cars of potential kidnapping victims in

order to track their movements. Once Veloz learned a victim's

typical driving routine, Maldonado also recounted, Veloz would

instruct his crew to abduct the victim and hold the victim for

ransom.

Further investigation revealed that Amparo had a GPS

device unknowingly attached to his car. The Federal Bureau of

Investigation ("FBI") then secured a warrant to search Veloz's

residence from a United States magistrate judge. The search turned

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up, among other things, computers and cell phones related to the

scheme.

The operative indictment was handed up on September 27,

2012, by a grand jury in the District of Massachusetts. The

indictment charged Veloz and six co-defendants with conspiracy to

commit kidnapping in violation of 18 U.S.C. § 1201(c). Veloz's

co-defendants each pleaded guilty. Veloz chose to proceed to

trial, which commenced on August 7, 2017. The jury returned a

guilty verdict against Veloz on August 21, 2017, and the District

Court sentenced Veloz to life in prison on November 17, 2017. That

same day, Veloz timely filed a notice of appeal.

Veloz first challenges the District Court's denial of

his motion to suppress the evidence that law enforcement

authorities seized from his apartment. Veloz argues that the

District Court erred in denying this motion because the application

for the warrant that led to the seizure failed to establish the

requisite probable cause.

When reviewing "the denial of a suppression motion, we

assess the district court's factfinding for clear error, and review

legal questions (such as probable cause . . . ) de novo." United

States v. Ackies, 918 F.3d 190, 197 (1st Cir.), cert. denied, No.

19-6602, 2019 WL 6833480 (Dec. 16, 2019). We employ a

"totality-of-the-circumstances analysis" to see if the government

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established "a fair probability that contraband or evidence of a

crime will be found in a particular place," Illinois v. Gates, 462

U.S. 213, 238 (1983), and "accord 'considerable deference to

reasonable inferences [that] the [issuing judge] may have drawn

from the attested facts,'" United States v. Tiem Trinh, 665 F.3d

1, 10 (1st Cir. 2011) (alteration in original) (quoting United

States v. Zayas-Diaz, 95 F.3d 105, 111 (1st Cir. 1996)).

Veloz's first ground for challenging the denial of his

motion to suppress focuses on the affidavit that accompanied the

application that FBI Special Agent John Orlando ("SA Orlando")

submitted for the search warrant. The affidavit relied largely on

information from a confidential informant. Veloz contends that,

because the affidavit did not describe the informant as having

provided credible information to law enforcement in the past, the

warrant was not supported by probable cause. We disagree.

"[A]n informant's tip can establish probable cause even

though the affidavit does not contain information about the

informant's past reliability," United States v. Greenburg, 410

F.3d 63, 67 (1st Cir. 2005), as a "probable cause finding may be

based on an informant's tip so long as the probability of a lying

or inaccurate informer has been sufficiently reduced," id. at 69.

"We apply a 'nonexhaustive list of factors' to examine the

affidavit's probable cause showing" when it is based on a tip.

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United States v. Gifford, 727 F.3d 92, 99 (1st Cir. 2013) (quoting

Tiem Trinh, 665 F.3d at 10). These factors include:

(1) whether the affidavit establishes the
probable veracity and basis of knowledge of
persons supplying hearsay information; (2)
whether an informant's statements reflect
first-hand knowledge; (3) whether some or all
of the informant's factual statements were
corroborated wherever reasonable or
practicable (e.g., through police
surveillance); and (4) whether a law
enforcement affiant assessed, from his
professional standpoint, experience, and
expertise, the probable significance of the
informant's provided information.

Id.

In this case, the first two factors that we have set

forth above point in favor of finding the tip reliable. SA

Orlando's affidavit represented that the confidential informant

had provided a detailed description of the illegal scheme's

operations and Veloz's role in them. His affidavit also made clear

that the confidential informant's description of those operations

was based, in part, on his having been inside Veloz's residence.

The third factor further indicates that the tip in this

case was reliable because SA Orlando's affidavit identified a

number of key respects in which the informant's tip had been

corroborated. For example, his affidavit stated that the apartment

building that the informant had identified as Veloz's place of

residence had a mailbox in it with Veloz's name on it; that law

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enforcement had observed a car parked in front of that

residence -- a brown Cadillac -- that matched the description that

the informant had previously given of Veloz's vehicle; and that

FBI agents had observed a red van that belonged to one of Veloz's

co-conspirators parked outside of that same apartment building.

Moreover, an attachment to the warrant application stated that, in

accord with the confidential informant's claim that Veloz had used

GPS devices to monitor his victims, the investigation into the

July 23, 2012, kidnapping revealed that a GPS device had been

attached to the victim's car.

The fourth factor, which relates to the experience of

the law enforcement officer seeking the warrant, reinforces the

reliability of the tip here. SA Orlando represented in his

affidavit that the information that he had obtained from the

confidential informant accorded with what he had learned from

investigating kidnappings in the nearby area over the course of

the previous year. See Zayas-Diaz, 95 F.3d at 111 (explaining

that a search warrant application is strengthened when "a

law-enforcement affiant included a professional assessment of the

probable significance of the facts related by the informant, based

on experience or expertise").

Finally, in this case, "the [informant] was known to the

police and could be held responsible if his assertions proved

inaccurate or false." United States v. Barnard, 299 F.3d 90, 93

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(1st Cir. 2002) (citing Florida v. J.L., 529 U.S. 266, 270 (2000)).

Thus, this fact provides further support for a finding that the

confidential informant's tip was reliable. Id.

Veloz has a fallback argument in challenging the

District Court's denial of his motion to suppress. He contends

that the District Court erred by mistakenly finding that SA

Orlando's affidavit stated that the informant "admitted to his

role in the kidnapping." But, because the warrant application

establishes the reliability of the confidential informant's tip

whether or not the informant was himself involved in the kidnapping

scheme, we may affirm the District Court's probable cause ruling

on that basis. See Ackies, 918 F.3d at 197.1

Veloz's next set of challenges also relies on what he

claims are deficiencies in the search warrant application. Here,

however, Veloz does not contend that the deficiencies required the

1
In light of our rejection of Veloz's challenge to the search
of his apartment, his challenge to the subsequent searches of his
electronic devices, made pursuant to a new warrant that relied in
part on information gleaned from the apartment search, lacks merit.
Veloz does separately argue that this evidence should be suppressed
because there was a "permanent and endless government search" for
over eighteen months. Veloz fails to explain, however, why the
delay in retuning the search warrant requires suppression of the
evidence. This argument is thus waived for lack of adequate
development. See United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990) ("[W]e see no reason to abandon the settled appellate
rule that issues adverted to in a perfunctory manner, unaccompanied
by some effort at developed argumentation, are deemed waived.").

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suppression of the evidence at issue. Rather, he contends that

due to what he describes as "omissions and misstatement[s] in the

search warrant affidavit," the District Court erred in refusing

his pretrial motion to hold a hearing pursuant to Franks v.

Delaware, 438 U.S. 154 (1978). Thus, he contends, the conviction

must be vacated for this reason.

A Franks hearing affords a defendant an opportunity to

show, "by a preponderance of the evidence," that the warrant

application "contains false statements or omissions, made

intentionally or with reckless disregard for the truth, and that

a finding of probable cause would not have been made without those

false statements or omissions." United States v. Arias, 848 F.3d

504, 510-11 (1st Cir. 2017). To be entitled to a Franks hearing,

the defendant must first make:

a "substantial preliminary showing" of the
same two requirements that he must meet at the
hearing — that "a false statement or omission
in the affidavit was made knowingly and
intentionally or with reckless disregard for
the truth" and that the false statement or
omission was "necessary to the finding of
probable cause."

Id. at 511 (quoting United States v. McLellan, 792 F.3d 200, 208

(1st Cir. 2015)).

Veloz contends that the District Court erred in denying

his motion for a Franks hearing because he had made the required

substantial preliminary showing that SA Orlando knew and omitted

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key facts from his affidavit about Maldonado's criminal history,

previous addiction to heroin, bipolar disorder diagnosis, and some

false statements that Maldonado made regarding the kidnappings.

Because this challenge is preserved, we review the District Court's

factual determinations in denying a motion for a Franks hearing

for clear error, and its determination of whether the defendant

has made a substantial preliminary showing that the omitted

information was material to the finding of probable cause de novo,

see id.

Here, because the information in the warrant application

that supported a finding that the confidential informant's tip was

reliable was so substantial, the omitted information that Veloz

points to was not material to "the probable cause calculus."

United States v. Stewart, 337 F.3d 103, 106 (1st Cir. 2003). That

is especially so because "magistrate judges . . . often know, even

without an explicit discussion of criminal history, that many

confidential informants 'suffer from generally unsavory character'

and may only be assisting police to avoid prosecution for their

own crimes." United States v. Avery, 295 F.3d 1158, 1168 (10th

Cir. 2002) (quoting United States v. Novaton, 271 F.3d 968, 985

(11th Cir. 2001)).

We also are unpersuaded by Veloz's separate challenge to

the District Court's denial of a Franks hearing based on what he

contends was SA Orlando's false statement in his affidavit that

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the confidential informant "picked Danny Veloz out of a photo

binder on July 24, 2012." According to Veloz, his picture was not

included in a photo array until August 2, 2012, and Veloz contends

that the statement about when his photo was picked out of the

binder was a "critical fact relied on by the magistrate judge in

finding probable cause . . . as it was a critical detail offered

to confirm the informant's knowledge of Veloz[.]"

Veloz first made the argument that he was entitled to a

Franks hearing, however, in a motion for reconsideration. Thus,

Veloz preserved only his challenge to the denial of that motion.

Our review of the denial of such a motion is only for abuse of

discretion, see United States v. Fanfan, 558 F.3d 105, 106-07 (1st

Cir. 2009), and Veloz makes no argument that the District Court

abused its discretion in denying that motion. Nor do we see how

he could, given that he was not presenting new evidence in that

motion, see United States v. Allen, 573 F.3d 42, 53 (1st Cir.

2009), as, prior to Veloz's motion for reconsideration on November

3, 2016, the District Court had already laid out the accurate

version of events in its June 4, 2015, decision to deny a Franks

hearing.

Insofar as Veloz means to press this argument as a basis

for challenging the District Court's original decision to deny his

motion for a Franks hearing, we may only review it for plain error.

See United States v. Tanco-Pizarro, 892 F.3d 472, 479 (1st Cir.)

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("[A]rguments unveiled for the first time in a reconsideration

motion are not preserved for appeal."), cert. denied, 139 S. Ct.

354 (2018). But, given the other information in the warrant

application, this one representation, even if Veloz could show

that SA Orlando knew that it was false, is not of a kind that could

make plain that Veloz had made the requisite preliminary showing

that the statement was material to a finding of probable cause.

We come, then, to Veloz's contention that the District

Court erred in denying his motion for a Franks hearing because the

affidavit from SA Orlando failed to reveal that the confidential

informant to whom it referred was, in fact, Maldonado. As Veloz

puts it, the application failed to "identify Maldonado . . . ,

instead referring to him as 'CI-1,' and describ[ing] him as a

'confidential informant working with the FBI's North Shore Gang

Task Force.'"

The government does not dispute that Maldonado was the

confidential informant or that the warrant application failed to

disclose that fact. We do not see, though, how this omission could

be thought to undermine the basis for finding probable cause. As

we have explained, the warrant application provides ample support

for finding the informant's tip to be reliable whether or not the

informant was involved in the conspiracy. In fact, the inclusion

of the fact that Maldonado was the informant would appear to

provide additional support for finding the tip reliable, given

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that it would provide a basis for finding that the informant was

relaying firsthand knowledge.

In any event, our review of this contention is only for

plain error, because Veloz did not press this ground for requesting

a Franks hearing below. Yet, Veloz "fails to even attempt to

explain how the plain error standard has been satisfied." United

States v. Severino-Pacheco, 911 F.3d 14, 20 (1st Cir. 2018); see

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

("[Appellant] has waived these challenges because he has not even

attempted to meet his four-part burden for forfeited claims.").

The next pretrial ruling that Veloz challenges relates

to the District Court's grant of the government's motion to strike

Special Agent Jeffrey Rolands ("SA Rolands") from his witness list.

In his initial opposition to the government's motion, Veloz argued

to the District Court that he did not need to provide any

justification for including the persons on his witness list that

he did, and that, in the alternative, every witness on his list

should be allowed to appear because they could "offer[] evidence

regarding . . . the flaws in the investigation and the deficiencies

in the securing of evidence." The District Court nevertheless

granted the government's motion to strike, stating that it was

necessary to "protect the jury from testimony that is irrelevant,

cumulative, or confusing" and because SA Rolands had "been

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transferred to Washington DC" In a motion for reconsideration,

Veloz contended that the decision to strike SA Rolands interfered

with his ability to present his defense, as he intended to call SA

Rolands in order to cast doubt on the integrity of the government's

investigation.

The parties dispute whether Veloz adequately preserved

his challenge to the District Court's initial decision to grant

the government's motion. But, we need not resolve that dispute

because Veloz's challenge, even if preserved as to the District

Court's initial decision, still fails.

Veloz bases his challenge on his federal constitutional

right, as a matter of procedural due process, to call witnesses in

his defense. See Washington v. Texas, 388 U.S. 14, 19 (1967). To

show that this right has been violated, however, Veloz must

demonstrate that the District Court abused its discretion in

excluding SA Rolands from his list of witnesses. See United States

v. Occhiuto, 784 F.3d 862, 867 (1st Cir. 2015) (reviewing the

defendant's constitutional challenge regarding the denial of his

request to call a particular witness for "abuse of discretion").

Yet, under Washington, it is not an abuse of discretion for a

district court to bar a witness -- as the District Court barred

the witness here -- from testifying due to the cumulative nature

of the testimony that he would provide. See United States v.

Scheffer, 523 U.S. 303, 308 (1998) ("A defendant's right to present

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relevant evidence is not unlimited, but rather is subject to

reasonable restrictions."); United States v. Sabean, 885 F.3d 27,

40 (1st Cir. 2018) ("Trial courts enjoy 'considerable latitude' to

exclude evidence that is 'admittedly relevant' but also

'cumulative.'" (quoting Hamling v. United States, 418 U.S. 87, 127

(1974))). As Veloz does not explain what SA Rolands' testimony

would have provided that would render the District Court's

determination that it was cumulative of other evidence in the

record an abuse of discretion, we reject this contention.

We turn, then, to Veloz's contention that the District

Court reversibly erred by admitting into evidence a transcript of

a recording of statements by Gadiel Romero, one of Veloz's

co-conspirators, which purported to confirm Veloz's role in the

kidnapping scheme. The statements set forth in the transcript

were made during a conversation that Romero had with Maldonado

while both men were in prison and that Maldonado had secretly

recorded with equipment the government had provided to him.

On September 29, 2016, the government filed a motion in

limine to admit, pursuant to Federal Rule of Evidence 804(b)(3),

a transcript of the statements that Romero made during this

recorded conversation, notwithstanding that they otherwise would

have been inadmissible as hearsay. Federal Rule of Evidence

804(b)(3) allows for the admission of hearsay statements that:

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 (A) a reasonable person in the declarant's
position would have made only if the person
believed it to be true because, when made, it
was so contrary to the declarant's proprietary
or pecuniary interest or had so great a
tendency to invalidate the declarant's claim
against someone else or to expose the
declarant to civil or criminal liability; and

(B) is supported by corroborating
circumstances that clearly indicate its
trustworthiness, if it is offered in a
criminal case as one that tends to expose the
declarant to criminal liability.

The District Court granted the government's motion on

October 28, 2016. Veloz then moved for the District Court to

reconsider that ruling. In response, the government offered to

admit a revised transcript that contained only certain excerpts

from the conversation between Romero and Maldonado. Veloz objected

to the admission into evidence of the revised transcript. The

District Court overruled the objection. Veloz now argues on appeal

that the District Court erred in permitting the revised transcript

to be admitted into evidence.2

2 "Typically, litigants offer recordings as evidence and use
transcripts as interpretive aids for the jurors' benefit. The
recordings control in the event that they differ from the proffered
transcripts." United States v. Kifwa, 868 F.3d 55, 60 (1st Cir.
2017) (internal citation omitted). However, when confronted with
a conversation in a foreign language, such as the one between
Romero and Maldonado, "the parties may agree to forgo having jurors
listen to foreign-language recordings that they do not
understand," and instead admit into evidence "transcripts
containing translations of such recordings . . . as long as they
are reliable and properly authenticated." Id. Neither Veloz nor

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 Veloz first contends that, wholly apart from whether the

statements at issue are admissible via the revised transcript

pursuant to Rule 804(b)(3), their admission violated the

Confrontation Clause of the Sixth Amendment under Bruton v. United

States, 391 U.S. 123 (1968) and Lilly v. Virginia, 527 U.S. 116,

139 (1999). Our review of a preserved Confrontation Clause

challenge is de novo. See United States v. Phoeun Lang, 672 F.3d

17, 21 (1st Cir. 2012).

In considering Confrontation Clause challenges, "[t]he

threshold question in every case is whether the challenged

statement is testimonial. If it is not, the Confrontation Clause

'has no application.'" United States v. Figueroa-Cartagena, 612

F.3d 69, 85 (1st Cir. 2010) (quoting Whorton v. Bockting, 549 U.S.

406, 420 (2007)). Because Romero's statements set forth in the

revised transcript were not testimonial, Veloz's Confrontation

Clause challenge necessarily founders -- even under the de novo

standard of review -- on that threshold question. See Davis v.

Washington, 547 U.S. 813, 825 (2006) (noting that "statements made

unwittingly to a Government informant" are "clearly

nontestimonial" (citing Bourjaily v. United States, 483 U.S. 171,

181-84 (1987))).

the government appears to have objected to the use of the
transcript.

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 Veloz next contends that, contrary to the District

Court's ruling, the exception to the hearsay bar that is set forth

in Federal Rule of Evidence 804(b)(3) does not apply to the

statements at issue. To make that case, he asserts that some of

the statements that Romero made during the recorded conversation

were made to "minimize [Romero's] involvement in the conspiracy"

and thus were not made against his penal interest. Veloz also

points to certain other statements that Romero made during the

recorded conversation that he contends a jury could have

interpreted to be self-exculpatory, as the statements suggested

that Romero believed that "no one else placed him at the scene of

the kidnapping" and that "some of the co-defendants [did not] know

him."

We review preserved challenges to evidentiary rulings

under the Federal Rules of Evidence for abuse of discretion, see

Ackies, 918 F.3d at 205, and the government concedes that this

standard applies here, even though Veloz first objected to the

revised transcript's admission in a motion for reconsideration,

see Trenkler v. United States, 536 F.3d 85, 96 (1st Cir. 2008)

("Where a trial court chooses to overlook the belated nature of a

filing and adjudicate the tardy claim or defense on the merits,

that claim or defense may be deemed preserved for purposes of

appellate review."). Even under the abuse of discretion standard

of review, however, the challenge fails for a simple reason: the

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government did not include in the revised transcript of the

recording that was admitted into evidence the statements that Veloz

identifies as the ones that failed to fall within the Rule

804(b)(3) exception. See United States v. Barone, 114 F.3d 1284,

1295 (1st Cir. 1997) (noting that the Rule 804(b)(3) inquiry

narrowly focuses on whether a specific remark could be deemed

self-inculpatory, making exclusion only appropriate, "in light of

all the surrounding circumstances," for those particular

statements that are "collateral," "non-self-inculpatory

statements" (quoting Williamson v. United States, 512 U.S. 594,

600, 604 (1994))).

Relatedly, Veloz contends that the government failed to

demonstrate, as Federal Rule of Evidence 804(b)(3)(B) requires,

that there were "corroborating circumstances" with respect to the

statements from Romero that were included in the revised

transcript. For this exception to the bar on the admission of

hearsay to apply, however, there need only be "evidence that

clearly indicates that the statements are worthy of belief, based

upon the circumstances in which the statements were made." Id. at

1300. Thus, there is no merit to this challenge because Veloz

fails to explain why the statements made here, which were to a

"fellow inmate," are not of that sort, see United States v.

Pelletier, 666 F.3d 1, 8 (1st Cir. 2011).

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 Finally, Veloz argues that the District Court erred in

failing to exercise its supervisory powers to prevent Romero's

statements from being admitted into evidence via the revised

transcript. He contends that the court order that allowed

Maldonado to use the government's equipment to record his

conversation with Romero permitted him to do so only if Maldonado

avoided raising the subject of the kidnapping conspiracy. Veloz

then contends that the transcript of the recorded conversation

reveals -- in his view, contrary to the dictates of the court

order -- that Maldonado brought up that topic and that Romero made

statements about Veloz's role in the conspiracy only at that point

in the conversation. Accordingly, he contends that the District

Court was required to exclude the statements at issue as a means

of enforcing the court order.

We review preserved challenges to the failure to

exercise supervisory powers for abuse of discretion. See United

States v. Black, 733 F.3d 294, 301 (9th Cir. 2013) ("We review for

abuse of discretion the district court's decision not to use its

supervisory powers to dismiss an indictment."). The draft

transcript of the conversation does show that Maldonado brought up

the kidnapping scheme to Romero. But, the court order that

permitted Maldonado to record his conversation with Romero merely

required the government to instruct Maldonado not to raise that

topic. Because Veloz does not dispute that the government did so

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instruct Maldonado, we see no basis for ruling that, to enforce

the government's compliance with the court order, the District

Court was obliged to exercise its supervisory powers to exclude

the transcript insofar as it contained the statements from Romero

that Veloz finds objectionable. See United States v. Jennings,

960 F.2d 1488, 1491 (9th Cir. 1992) ("Absent a violation of a

recognized right under the Constitution, a statute, or a procedural

rule, a district court is not entitled to exclude evidence as a

sanction against government practices disapproved of by the

court."); United States v. Osorio, 929 F.2d 753, 763 (1st Cir.

1991) ("Without a nexus between improper prosecutorial practice

and prejudice to the defendant, misconduct must be characterized

as harmless error, and thus beyond the scope of redress under

supervisory powers by dismissal or reversal.").

Independent of the challenges that he brings that focus

on the fact that the revised transcript included Romero's

statements, Veloz also contests the admission of the revised

transcript on the ground that it included a statement by Maldonado

that conveyed certain information that he had learned from

investigators. The contention seems to be that this statement

from Maldonado was hearsay and thus was inadmissible for that

reason. But, Maldonado's statement was admitted into evidence

solely to identify the statement to which Romero was responding in

making a statement of his own that the revised transcript included

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and not for its truth. Thus, the District Court did not err in

permitting the admission of that statement via the revised

transcript. See United States v. Walter, 434 F.3d 30, 34 (1st

Cir. 2006).3

We turn now to Veloz's contention that the District Court

reversibly erred at trial because it permitted the admission of

certain evidence and testimony that concerned U.S. Fleet

Tracking's GPS data. U.S. Fleet Tracking produces the GPS devices

that Veloz allegedly used to track his victims.

Veloz first argues that the District Court erred in

permitting this data to be admitted under the hearsay exception

for business records that is set forth in Federal Rule of Evidence

803(6). Rule 803(6) states that:

A record of an act, event, condition, opinion,
or diagnosis [can be admitted into evidence]
if:
(A) the record was made at or near the
time by — or from information transmitted by
— someone with knowledge;

3 Maldonado's statement that was admitted into evidence reads
as follows:
'Cause you, when they told me is that these
n****s, right, they had them under
surveillance already for a long time, that
these n****s been doing burning and f***ing
stabbing, and f***ing n****rs up for the
longest time, right? You think Cano and Danny
will say: "Yo, we are hot," you know what I
mean?

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 (B) the record was kept in the course of
a regularly conducted activity of a business,
organization, occupation, or calling, whether
or not for profit;
(C) making the record was a regular
practice of that activity;
(D) all these conditions are shown by the
testimony of the custodian or another
qualified witness, or by a certification that
complies with Rule 902(11) or (12) or with a
statute permitting certification; and
(E) the opponent does not show that the
source of information or the method or
circumstances of preparation indicate a lack
of trustworthiness.

Fed. R. Evid. 803(6).

Veloz trains his focus initially on the requirements

that are set forth in subsections (A)-(C). Veloz contends that,

because the GPS data that was admitted into evidence was prepared

in anticipation of litigation, these requirements were not met.

But, while the government's trial exhibit that set forth the GPS

data was so prepared, the government showed that U.S. Fleet

Tracking created and stored the GPS data itself contemporaneously

with Veloz's conduct and thus not in preparation for the

litigation. We thus reject Veloz's first ground for claiming that

the business records exception did not encompass the data in

question.

Veloz next focuses on subsection (D). He argues that

the government failed to provide a "qualified witness" to testify

that the relevant conditions had been met for admitting the GPS

data under the business records exception. Veloz focuses solely

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on the testimony of Task Force Officer Jason Sutherland. Veloz

contends that Sutherland was not qualified within the meaning of

the provision in part because he could not explain some

discrepancies in the GPS data. But, the government also offered

the testimony of Bill Eichhorn, an executive at U.S. Fleet

Tracking. Eichhorn was clearly a qualified witness whose testimony

sufficed to show the conditions in Rule 803(6) were met here. Nor

does Veloz argue otherwise. Thus, this challenge fails, too.

We move on to Veloz's challenge to the District Court's

decision at trial to admit certain testimony offered by Eichhorn,

the U.S. Fleet Tracking representative, and Elisabeth Lenehan, an

FBI staff operations specialist. Here, too, we find no merit to

Veloz's challenges.

Veloz contends that the District Court erred by

permitting Eichhorn to recount hearsay when he "introduced the

purchase orders and information from other companies" than U.S.

Fleet Tracking, which we understand to be a reference to certain

records relating to AT&T, Brickhouse Security, and FedEx to which

Eichhorn had referred in his testimony. Our review is for abuse

of discretion. See Ackies, 918 F.3d at 205.

The problem with this contention is that it rests upon

a mistaken understanding of the facts. Our review of the record

shows that the documents to which Eichhorn referred in his

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testimony were emails and records pulled from U.S. Fleet Tracking's

own recordkeeping system. To the extent that the record can be

read to the contrary, moreover, any error would have been harmless,

given the substantial independent evidence of Veloz's guilt. Nor

does Veloz develop any argument to the contrary.

Veloz's challenges with respect to Lenehan's testimony

also lack merit. Veloz first contends that the District Court

reversibly erred by permitting her to testify to the contents of

her conversation with T-Mobile regarding a phone seized from

Veloz's apartment and that one of the co-conspirators had listed

Maldonado in his phone as "H."

But, Veloz similarly fails to develop any argument about

why the admission of the T-Mobile testimony, even if improper, was

not harmless, given the evidence as a whole. See Zannino, 895

F.2d at 17. And, the record indicates that the testimony about

"H" was harmless, as a co-conspirator had already appeared at trial

and testified to the same effect. See United States v. Valdivia,

680 F.3d 33, 46 (1st Cir. 2012) (finding the admission of hearsay

harmless when it "is cumulative of other evidence in the record").

Nor does Veloz explain how Lenehan's testimony about "H" was

prejudicial.

Veloz next claims that the District Court erred by

allowing Lenehan to offer improper opinion testimony on matters

that included "what nicknames and letters meant. . . . [and]

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extraction reports she had not written." Veloz asserts that this

testimony enabled Lenehan "to link the alleged conspirators . . .

with her speculative interpretations" of the contact list and phone

numbers on a co-conspirator's phone. But, as Veloz fails to

identify the specific statements that he contends that Lenehan was

not qualified to interpret, the challenge is waived for lack of

development. See id.

We now turn to a challenge that Veloz brings to events

that occurred on the fifth day of the trial, when the District

Court conducted the voir dire of Eichhorn, outside the presence of

the jury, to determine his qualifications as an expert witness.

The record shows the following: Veloz's counsel asked the District

Court whether Veloz was available to attend the voir dire. The

District Court responded both that it did not know and that it was

not necessary to have Veloz present for that portion of the

proceedings. Veloz's counsel did not then further press the point,

and Veloz was not present for the voir dire.

On appeal, Veloz contends that he was excluded from the

voir dire and that this exclusion violated his rights under the

Due Process Clause and the Confrontation Clause to be present "at

all critical stages of the trial." Rushen v. Spain, 464 U.S. 114,

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117 (1983) (per curiam).4 The government responds that, because

Veloz did not press the point below, he must satisfy the plain

error standard, see United States v. Karmue, 841 F.3d 24, 27 (1st

Cir. 2016), which is a point that Veloz disputes.

Insofar as Veloz must satisfy the demanding plain error

standard, his challenge cannot succeed because he makes no attempt

to show how any error was plain, see Severino-Pacheco, 911 F.3d at

20. But, even if we were to review his challenge de novo, see

Karmue, 841 F.3d at 26, we do not see how it has merit.

The Due Process Clause "requires that a defendant be

allowed to be present 'to the extent that a fair and just hearing

would be thwarted by his absence,'" Kentucky v. Stincer, 482 U.S.

730, 745 (1987) (quoting Snyder v. Massachusetts, 291 U.S. 97, 108

(1934)). Veloz appears to have been in no position to assist his

counsel with respect to any factual disputes regarding Eichhorn's

qualifications. Nor does Veloz offer any examples of the

objections that he would have made or assistance that he would

4Though Veloz fails to cite it in his brief, we note that
Federal Rule of Criminal Procedure 43(a) codifies this Due Process
right. See United States v. Iverson, 897 F.3d 450, 466 (2d Cir.
2018). Rule 43 provides, in pertinent part, that "the defendant
must be present at: (1) the initial appearance, the initial
arraignment, and the plea; (2) every trial stage, including jury
impanelment and the return of the verdict; and (3) sentencing."
The rule also states that a defendant need not be present when
"[t]he proceeding involves only a conference or hearing on a
question of law." Fed. R. Crim. P. 43(b)(3).

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have offered had he been present at the voir dire. Thus, Veloz

fails to show how his presence at Eichhorn's voir dire would have

been necessary to ensure that it was a fair and just proceeding.

See id. at 747 (ruling against a defendant, in part, because he

gave "no indication that his presence at the competency hearing

. . . would have been useful in ensuring a more reliable

determination").5

That brings us to the suite of challenges that Veloz

brings to certain comments that the prosecutor made during his

closing argument and his rebuttal. Veloz chiefly contends, as he

did below, that the prosecutor made the improper comments by: (1)

engaging in "burden shifting" during rebuttal; (2) referring to

Romero; (3) characterizing "the U.S. Fleet [data and records] as

business records"; (4) characterizing "Romero as the pillar of the

case"; (5) stating that Veloz's counsel "[went] after Eichhorn";

and (6) claiming that Romero did not know he was being recorded.

We may "vacate a conviction only if the [prosecutor's

improper] remarks 'so poisoned the well that the trial's outcome

was likely affected.'" United States v. French, 904 F.3d 111, 124

5
Nor do we see any Confrontation Clause violation -- insofar
as Veloz means to contend that there was one -- resulting from
Veloz's absence from the voir dire. Veloz had an "opportunity for
full and effective cross-examination" of Eichhorn with regard to
his background during the trial. Stincer, 482 U.S. at 744.

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(1st Cir. 2018) (quoting United States v. Kasenge, 660 F.3d 537,

542 (1st Cir. 2011)). "In assessing this question, we consider

the severity of the conduct and whether it was deliberate, the

context, the presence of curative instructions and their likely

effect, and the strength of the prosecution's case." Id.

We review preserved challenges to the propriety of a

prosecutor's remarks de novo. See United States v. Zarauskas, 814

F.3d 509, 514 (1st Cir. 2016). We may assume that Veloz's

objections to each of these statements were timely made because,

even on that assumption, there is no basis for finding that the

District Court reversibly erred in overruling them.

We have already explained why Veloz's challenges to the

admission of Romero's statements via the revised transcript and to

the U.S. Fleet Tracking data lack merit. In light of that same

reasoning, there was nothing improper in the prosecutor referring

to Romero's statements in the revised transcript, given that the

statements were properly admitted, or to the GPS data being

business records, given that they were properly so deemed under

Federal Rule of Evidence 803(6). Nor do we see how, given the

substantial evidence against Veloz, these statements by the

prosecutor were so prejudicial as to affect the trial's outcome.

That is especially so given that the District Court instructed the

jury, both before and after closing arguments began, that "[w]hat

the lawyers say, what I say as far as any factual matter in the

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case goes, does not matter. You, as the jury, are the sole judges

of the facts." In fact, Veloz fails to develop anything more than

a cursory argument that the comments just described were so

prejudicial as to warrant overturning the conviction.

There remains to address only the other comments by the

prosecutor that Veloz identifies as problematic. But, as to these

comments, too, Veloz fails to demonstrate how any of them caused

the requisite prejudice. Thus, his challenges based on those

comments are meritless as well, even if we were to assume that any

of these comments were somehow improper.6

Next up is Veloz's penultimate challenge. It is to the

District Court's instruction to the jury, just before it began its

deliberations, that Maldonado's "recording was obviously made

without Mr. Romero's knowledge." Veloz argues that the District

Court's instruction "decided an issue of fact for the jury, and

clearly injected the court's opinion into evaluating the

evidence." In other words, Veloz contends, the instruction

"eliminated the possibility that the jurors could reject the

transcript outright as untrustworthy."

6The same is true as to Veloz's challenges to yet other
comments that the prosecutor made that Veloz, for the first time
on appeal, now contends were also improper.

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 The government points out that, although Veloz made an

objection to a draft form of the instruction in the morning on the

day that jury was charged, he failed to renew that objection after

the jury was charged. Veloz responds that he did not renew his

objection at that time because the District Court stated that it

would consider the objections from that morning preserved. But,

Federal Rule of Criminal Procedure 30, which governs objections to

jury instructions, "require[s] the appellant to renew his

objection after the jury has been charged when the court has given

the parties that opportunity," United States v. Henry, 848 F.3d 1,

13 (1st Cir. 2017), and we have held that the fact that a district

court made a statement "after the charge that objections made prior

to it will be saved does not absolve the attorney from following

the strictures of the rule," id. (citation omitted).

Even if we were to treat the challenge as preserved, it

still would fail. The District Court repeatedly advised the jury

that it was the "sole judge[] of the facts." Moreover, Veloz does

not dispute that Romero was unaware that Maldonado was recording

his conversation with him, and the record provides no basis from

which a reasonable juror could conclude otherwise. Thus, we fail

to see how the District Court's statement in the instruction was

sufficiently prejudicial to constitute reversible error.

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 Veloz's final ground for challenging his conviction

concerns a ruling that the District Court made after the jury

rendered its verdict that Veloz was guilty of the charged offense.

At that time, the District Court denied Veloz's motion pursuant to

Federal Rule of Criminal Procedure 33 for a new trial based on his

allegation that "evidence was tampered with, thereby denying [him]

a fair trial."7 We review a "denial of a Rule 33 motion for

manifest abuse of discretion with the respect due to the presider's

sense of the ebb and flow of the recently concluded trial." United

States v. Tull-Abreu, 921 F.3d 294, 301-02 (1st Cir.) (internal

citation and quotation marks omitted) (alterations omitted), cert.

denied, 140 S. Ct. 424 (2019). But, a district court "must

exercise that discretion sparingly and in the most extraordinary

circumstances, and only in order to avert a perceived miscarriage

of justice. In short, the ultimate test for granting a new trial

pursuant to [the Rule] is whether letting a guilty verdict stand

would be a manifest injustice." United States v. Gramins, 939

F.3d 429, 444 (2d Cir. 2019) (internal citations and quotation

marks omitted).

7 Rule 33 states that "[u]pon the defendant's motion, the
court may vacate any judgment and grant a new trial if the interest
of justice so requires."

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 Veloz's arguments concerning the District Court's

asserted error in denying his Rule 33 motion are not easy to

follow. As best we can tell, Veloz points to five instances of

alleged mishandling or tampering with evidence that he contends

were set forth in his Rule 33 motion: (1) someone tampered with

data on one of the laptops seized from Luis Reynoso's, a

co-conspirator, apartment; (2) a laptop seized from Veloz's

apartment showed that Veloz accessed a photo on July 23, 2012,

that did not come into existence until July 24, 2012; (3) GPS data

on Jose Guzman's, a co-conspirator, phone was "altered between

November 5 and November 15, 2012"; (4) two phones taken from Jose

Matos, a co-conspirator, were lost or destroyed during the

investigation; and (5) SA Orlando "returned crucial evidence to a

cooperator's wife without copying the materials first."

Veloz appears to be arguing that the evidence offered

against him was so unreliable, on account of these alleged problems

with the way evidence against him was handled, that there was

insufficient evidence upon which to convict him of the charged

offense. The District Court found, however, that Veloz's counsel

laid out each of these asserted problems with the way that the

government had handled the investigation to the jury and that the

jury, fully cognizant of those alleged problems, nonetheless found

Veloz guilty. Veloz does not challenge the finding that the

contentions that he raises in his Rule 33 motion were ones that

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the jury was given a full opportunity to consider. Nor does he

succeed in demonstrating that the contentions are such as to compel

a finding that, in consequence of them, the evidence against him

did not suffice to support the conviction, let alone that the

District Court manifestly abused its discretion in finding against

him on that point. As a result, this challenge to the denial of

his motion for a new trial fails. See United States v. Merlino,

592 F.3d 22, 32 (1st Cir. 2010)(stating that relief under Rule 33

for a sufficiency challenge may only be granted "where the evidence

preponderates heavily against the verdict" (quoting United States

v. Wilkerson, 251 F.3d 273, 278 (1st Cir. 2001)).

The conviction is affirmed.

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