United States v. Reyes

United States Court of Appeals
For the First Circuit

No. 19-2013

UNITED STATES OF AMERICA,

Appellee,

v.

CARLOS REYES, JR.,

Defendant, Appellant.

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

[Hon. George A. O’Toole, Jr., U.S. District Judge]

Before

Thompson and Kayatta, Circuit Judges,
and Katzmann, Judge.

Leslie Feldman-Rumpler for appellant.
Karen L. Eisenstadt, Assistant United States Attorney, with
whom Nathaniel R. Mendell, Acting United States Attorney, was on
brief, for appellee.

January 19, 2022

 Of the United States Court of International Trade, sitting
by designation.
 KATZMANN, Judge. A jury convicted defendant Carlos

Reyes, Jr. ("Reyes") of one count of conspiracy to possess with

intent to distribute and to distribute 500 grams or more of

cocaine, in violation of 21 U.S.C. § 846, and one count of

possession with intent to distribute 500 grams or more of cocaine,

in violation of 21 U.S.C. § 841(a)(1). Defendant now appeals,

asserting error by the district court. Before us are claims that:

(1) evidence obtained during a traffic stop should have been

suppressed; (2) the district court erroneously admitted certain

statements of lay witnesses that unfairly prejudiced the

defendant; (3) the proceedings contravened the defendant's

statutory and constitutional rights to a speedy trial; and (4) the

defendant's absence at certain pre-trial proceedings violated his

statutory and constitutional presence rights. We affirm.

I. Background

A. Facts

"We state the facts in the light most favorable to the

verdict." United States v. Vega-Figueroa, 234 F.3d 744, 747 (1st

Cir. 2000) (citing United States v. Duclos, 214 F.3d 27, 32 (1st

Cir. 2000)). Because "[m]any of the facts pertaining to

particular issues will be set forth in our discussion of the

issues[,] [a]ll we do now is state those facts that will give the

reader the necessary background information to understand the

- 2 -
different issues raised by defendant." Id. at 748.

In 2016, the United States Postal Inspector Service and

the Massachusetts State Police began investigating a potential

drug distribution conspiracy that law enforcement assessed was

using the mail to transport controlled substances from Puerto Rico

to Massachusetts. Investigators became suspicious after observing

packages bearing characteristics common to drug conspiracies,

namely parcels with: fictitious sender information (either a fake

sender name or undeliverable return address, or both);

deliverable, but slightly incorrect addresses for recipients;

postage paid in cash; and handwritten mailing labels all in the

same handwriting but listing different senders' names.

After additional investigation, law enforcement

identified Pablo Santiago-Cruz ("Santiago-Cruz") as the

conspiracy's central figure and Reyes as a "runner" who received

some of the drug shipments from Puerto Rico and then transferred

their contents to Santiago-Cruz. Of the more than thirty

suspicious parcels identified as part of the conspiracy, seven

were identified as addressed to Reyes; five of these packages were

delivered as "controlled deliveries" executed under law

enforcement surveillance.

Through these controlled deliveries and corresponding

surveillance, law enforcement observed that on three occasions,

shortly after Reyes took delivery of the packages, Santiago-Cruz

- 3 -
either came to Reyes's house or Reyes traveled to meet Santiago-

Cruz; on two of these occasions, law enforcement observed Reyes

carrying bags consistent with the size and shape of cocaine.

Additionally, telephone records obtained by investigators revealed

that on days parcels were shipped from Puerto Rico and delivered

in Massachusetts, Santiago-Cruz and Reyes had multiple telephone

contacts.

On July 18, 2016, the investigative team carried out the

final controlled delivery that led to Reyes's arrest. At around

12:30 p.m., a postal inspector dressed as a mail carrier left the

controlled parcel addressed to Reyes at 45 Winthrop Street in

Framingham -- Reyes's correct address was in fact 47 Winthrop

Street -- on the shared porch of Reyes's duplex at 45-47 Winthrop

Street. Approximately ten minutes later, an unidentified person

came out and carried the parcel into 47 Winthrop. Reyes returned

home that night at around 7:00 p.m. and reemerged from his house

approximately ten minutes later carrying the parcel. Law

enforcement saw Reyes walk down his driveway to an out-of-sight

area behind the house and shortly thereafter observed Reyes pulling

into the street in his car.

Once mobile, members of the investigative team

surreptitiously followed Reyes for approximately thirty minutes,

driving in a "stack" of eight to ten unmarked vehicles and one

State Police cruiser. Trooper Dennis Lynch ("Trooper Lynch"), of

- 4 -
the Massachusetts State Police, -- who had been involved in

surveillance of some of the prior controlled deliveries to Reyes

-- drove the police cruiser. After another trooper in the "stack"

-- Trooper Keith Pantazelos -- conveyed over the radio that he had

observed Reyes tailgating, and after Trooper Lynch "clocked" Reyes

speeding, Trooper Lynch initiated a traffic stop of Reyes. As

Trooper Lynch pulled Reyes over to the side of the road, Trooper

Pantazelos and the other officers in the unmarked vehicles

continued driving to a nearby parking lot where they could covertly

monitor the traffic stop from a distance.

In order to avoid alerting Reyes to the larger drug

investigation, Trooper Lynch approached Reyes as if he were

conducting an ordinary traffic stop. Accordingly, Trooper Lynch

began by asking Reyes routine traffic-related questions through

the driver's side window, such as where Reyes was going; Reyes

could not identify his destination beyond "Boston". As the

conversation proceeded, Reyes acknowledged to Trooper Lynch that

he had previously served a 188-month sentence in a federal

narcotics case, and Trooper Lynch knew -- from his involvement in

the overarching drug investigation -- that Reyes had prior

convictions for firearms and assault, including assault and

battery on a police officer. Throughout their conversation,

Trooper Lynch observed that Reyes was extremely nervous and was

crumpling something in his left hand, which Trooper Lynch thought

- 5 -
at the time was cocaine. Upon inquiry, Reyes told Trooper Lynch

that it was a shipping label from a package with his name on it;

when Trooper Lynch asked for and took possession of the label, he

identified it as the Priority Mail label from that day's controlled

delivery.

Trooper Lynch proceeded to ask Reyes for his consent to

search the car for drugs and weapons, which Trooper Lynch testified

-- and the district court found -- that he received. In order to

conduct the search, Trooper Lynch asked Reyes to exit his vehicle,

at which point, Trooper Lynch escorted him to the front of the

car. After conducting a brief scan of the immediate driver's

area, Trooper Lynch called for a canine team to assist. Trooper

Lynch testified -- and the district court found -- that as he

waited for the K-9 unit to arrive, Trooper Lynch reconfirmed

Reyes's consent to the search.

Once the canine team -- consisting of Trooper William

McSweeney and his dog -- arrived, Trooper Lynch handcuffed Reyes

and placed him in the back-passenger seat of his police cruiser

for the duration of the dog's search. Trooper Lynch informed

Reyes that he was not under arrest and that these measures were

just for safety. The dog then commenced its search; at some point

surrounding the dog's search, a third trooper -- Trooper Daniel

Mahoney -- arrived on the scene. After the dog finished searching

the passenger areas of the car, Trooper McSweeney opened the car's

- 6 -
trunk and the dog jumped into it; the dog "alerted on" a box

containing a Girl Scout Cookie Oven, which the Troopers removed

from the trunk.

Prompted by the discovery of the Girl Scout Cookie Oven

box, Trooper Lynch asked Reyes if he "ha[d] kids," to which Reyes

replied that he had a nineteen-year-old daughter. When Trooper

Lynch expressed skepticism that a nineteen-year-old would want a

Girl Scout Cookie Oven, Reyes claimed the oven was for his two-

year-old niece. When Trooper Lynch expressed further skepticism

that a Girl Scout Cookie Oven was an appropriate toy for a two-

year-old, Reyes said that a girl had given him the box and that he

did not know what was inside of it.

Trooper Lynch picked up the Girl Scout Cookie Oven box

and assessed that it felt heavier than a toy oven. Accordingly,

Trooper Lynch opened the box and took out the actual oven. After

reconfirming his assessment that the Girl Scout Cookie Oven felt

heavier than a toy, Trooper Lynch peeled open the plastic top of

the oven and found what he believed to be -- and what was later

confirmed to be -- a kilogram of cocaine inside it. Trooper Lynch

returned to Reyes, informed him of what the dog had found, and

placed him under arrest. Trooper Lynch read Reyes his Miranda

- 7 -
rights1 at that time.

On July 19, 2016, law enforcement executed search

warrants of Santiago-Cruz's and Reyes's residences. Agents found

drugs, drug paraphernalia, and a quantity of U.S. currency at

Santiago-Cruz's residence and the discarded parcel box from the

July 18 controlled delivery with its mailing label removed in

Reyes's trash.

B. Proceedings

On August 31, 2016, a federal grand jury returned an

indictment charging Reyes with one count of conspiracy to possess

with intent to distribute and to distribute 500 grams or more of

cocaine, in violation of 21 U.S.C. § 846, and one count of

possession with intent to distribute 500 grams or more of cocaine,

in violation of 21 U.S.C. § 841(a)(1).

On September 25, 2017, Reyes made a pre-trial motion to

suppress the physical evidence seized from his vehicle as well as

the statements he made to Trooper Lynch during the stop on July

18, 2016. Reyes argued that the physical evidence should be

suppressed because there was no valid basis for the stop and search

-- as he neither committed any traffic violations to justify the

1 Before a suspect is subjected to "custodial police
interrogation," an "accused must be adequately and effectively
apprised of his [Miranda] rights," which include the right to
remain silent. Dickerson v. United States, 530 U.S. 428, 440
(2000) (quoting Miranda v. Arizona, 384 U.S. 436, 467 (1966)).

- 8 -
initial stop nor did he consent to the search -- and that his

statements should be suppressed because the stop was a de facto

arrest that required Miranda warnings.2

Following an evidentiary hearing on January 10, 2018,

the district court denied Reyes's motion to suppress on April 9,

2018. Of relevance to Reyes's current appeal, the district court

made the following findings: (i) Reyes committed traffic

violations of tailgating and speeding, which justified the initial

traffic stop; (ii) Reyes twice voluntarily consented to the search

of his car; (iii) the "justified investigatory stop" did not become

a de facto arrest -- even after Reyes was handcuffed -- where

Trooper Lynch was "effectively alone" in attending to the defendant

throughout the stop; and (iv) the entire stop prior to arrest

lasted approximately twenty-six minutes, with Reyes in handcuffs

but not arrested, for nineteen of those minutes.

Trial began on September 24, 2018. At trial, Reyes's

defense focused on the Government's lack of evidence that he was

aware of the contents of the package seized from his car during

the July 18 stop. During the proceedings, Reyes objected to

certain statements given by Government witnesses, Trooper Lynch

and United States Postal Inspector Stephen Dowd. Of relevance to

2 "[T]he admissibility in evidence of any statement given during
[a] custodial interrogation of a suspect . . . depend[s] on whether
the police provided the suspect with [Miranda] warnings."
Dickerson, 530 U.S. at 435.

- 9 -
Reyes's current appeal, the trial court overruled Reyes's

objections to statements by Trooper Lynch that: (i) past narcotics

investigations in which Trooper Lynch had been involved typically

resulted in arrests for narcotics violations; (ii) Reyes drove

like "[h]e knew where he was going" on the day of the July 18,

2016 traffic stop; and (iii) Reyes "was trying to make up a story

[about] where he was going" while responding to Trooper Lynch's

questions during the stop; the trial court also overruled Reyes's

objections to Inspector Dowd's lay testimony that the labels on

the parcels addressed to Reyes and others appeared to have common

authorship based on the similarity in handwriting.

Upon conclusion of the trial, the jury returned a verdict

finding Reyes guilty on both counts. The district court sentenced

Reyes to 210 months of imprisonment on each count to run

concurrently and forty-eight months of supervised release.

Reyes timely lodged this appeal.

II. DISCUSSION

We have jurisdiction under 28 U.S.C. § 1291.3 We review

the district court's findings of fact for clear error and accept

all reasonable inferences that it has drawn. See United States

3 28 U.S.C. § 1291 provides in pertinent part:
The courts of appeals (other than the United States Court
of Appeals for the Federal Circuit) shall have
jurisdiction of appeals from all final decisions of the
district courts of the United States. . . .

- 10 -
v. Coombs, 857 F.3d 439, 445–46 (1st Cir. 2017) (first citing

United States v. Zapata, 18 F.3d 971, 975 (1st Cir. 1994); then

citing United States v. Paneto, 661 F.3d 709, 711 (1st Cir. 2011)).

We review the district court's legal conclusions de novo. United

States v. Arnott, 758 F.3d 40, 43 (1st Cir. 2014) (citing Ornelas

v. United States, 517 U.S. 690, 691, 699 (1996)).

A. Suppression Ruling

First, Reyes challenges the district court's pre-trial

ruling denying his motion to suppress evidence. Specifically, he

challenges the admission of physical evidence collected as a result

of the search of his vehicle -- namely, the cocaine recovered from

the closed Girl Scout Cookie Oven box in the trunk -- and the

admission of statements made by Reyes while he was stopped prior

to being advised of his Miranda rights. On appeal, Reyes argues

that the district court's denial order was flawed because the

order: (i) relied on two clearly erroneous findings of fact; and

(ii) did not reflect the Supreme Court's guidance in Rodriguez v.

United States, 575 U.S. 348 (2015). We reject both contentions.

When reviewing a suppression ruling, we consider the

"evidence in the light most favorable to the suppression ruling"

and can affirm "on any basis apparent in the record." Arnott, 758

F.3d at 43. As noted, we review the district court's findings of

fact for clear error and "the court's legal conclusions, including

its answers to 'the ultimate questions of reasonable suspicion and

- 11 -
probable cause to make a warrantless search[]' de novo." Id.

(emphasis added) (quoting Ornelas, 517 U.S. at 691). Similarly,

when reviewing "whether [a] defendant[] w[as] 'in custody' for

Miranda purposes," we review factual questions for clear error and

the ultimate legal question de novo. United States v. Campbell,

741 F.3d 251, 265 (1st Cir. 2013) (citing United States v. Hughes,

640 F.3d 428, 435 (1st Cir. 2011)). "Given the textured nature

of these inquiries," we will "proceed circumspectly and with regard

for the district court's superior vantage point." United States

v. Espinoza, 490 F.3d 41, 46 (1st Cir. 2007) (citing Zapata, 18

F.3d at 975).

1. The District Court's Factual Findings

As has been noted, the district court declined to

suppress the physical evidence obtained during the stop, finding

that Reyes voluntarily consented to the search of his vehicle. In

addition, the district court declined to suppress the statements

made by Reyes during the execution of the search because the court

found that the investigatory detention was not transformed into a

de facto arrest by anything that transpired during the stop --

including the handcuffing of Reyes where Trooper Lynch was

"effectively alone" in attending to him. Reyes contests the

district court's factual findings that he consented to the search

of his vehicle and that Trooper Lynch was "effectively alone" in

dealing with Reyes.

- 12 -
 a. The Consent Finding.

The district court, while noting that "[t]here is a

difference between giving consent happily and giving it

voluntarily," concluded that Reyes twice voluntarily consented to

the search of his vehicle and that "the actual search [conducted]

did not exceed the scope of [the] consent that was given." In

making these findings, the court relied largely on the testimony

of Trooper Lynch, who the court deemed to be credible. Because,

as the district court explained, "[i]t is well-established that 'a

warrantless search may be conducted with the voluntary consent of

a person authorized to give it,'" (quoting United States v.

Stierhoff, 549 F.3d 19, 23 (1st Cir. 2008)), the court ruled that

both the warrantless search of Reyes's car and the admission at

trial of the physical evidence seized therein were permissible.

On appeal, Reyes objects to the fact that the district

court's finding of consent was based solely on the "uncorroborated"

testimony of Trooper Lynch. 4 Reyes argues that the district

court's assessment that Trooper Lynch was credible was belied by

the lack of any contemporaneous record of Reyes's consent and

assessed inconsistencies in Trooper Lynch's affidavit and oral

4 In this overarching challenge, Reyes contests the finding that
he consented to the search at all; he has not lodged alternative
challenges to the district court's subsidiary conclusions that
such consent: (i) was voluntary and (ii) encompassed a search of
the car's trunk.

- 13 -
testimony. These arguments are unavailing.

Typically, consent -- including its voluntariness --

"turns on questions of fact" that must be assessed based upon "the

totality of the circumstances." United States v. Fornia-Castillo,

408 F.3d 52, 62 (1st Cir. 2005). "For that reason, a finding of

voluntary consent . . . is reviewable only for clear error."5 Id.

"Where a district court's factual findings" -- such as a consent

finding -- "are based on credibility determinations[,] . . . error

is seldom considered 'clear' unless the credibility assessments

were based on testimony which was inherently implausible,

internally inconsistent, or critically impeached." United States

v. Merlino, 592 F.3d 22, 27 (1st Cir. 2010) (alteration in

original) (internal quotation marks omitted) (quoting Awon v.

United States, 308 F.3d 133, 141 (1st Cir. 2002)). Reyes has not

made the requisite showing.

Reyes's initial contention -- that the lack of any

contemporaneous record of Reyes's consent belies Trooper Lynch's

credibility -- is unpersuasive. The lack of such records is

consistent with Trooper Lynch's evidentiary hearing testimony that

troopers generally do not create audio recordings of consent or

use consent forms at stops. Moreover, we have previously

considered and rejected the argument that a lack of contemporaneous

5 Unless the finding of consent is based on an erroneous legal
standard. Fornia-Castillo, 408 F.3d at 62.

- 14 -
records evidencing a defendant's consent undermines the

credibility of a government agent. See United States v. Meléndez-

Santiago, 644 F.3d 54, 61 (1st Cir. 2011) (where the district

court "afford[ed] total credibility" to a government agent's

testimony that defendant Meléndez voluntarily confessed to his

role in a conspiracy and agreed to cooperate, the Government's

"fail[ure] to produce a signed waiver, a cooperative agreement, a

recording of the interviews, or a signed statement from Meléndez

d[id] not establish inherent implausibility or other basis for a

finding of clear error" (internal citation omitted)).

Nor has Reyes succeeded in proving that Trooper Lynch's

narrative regarding Reyes's consent was inherently implausible on

its own terms. We disagree with Reyes's contention that there was

"no reason" for Trooper Lynch to ask for consent a second time

after Reyes had already consented to the search a few minutes

prior; after all, this was a pre-planned stop. Given the

expectation that the stop would produce evidence, it is logical

that Trooper Lynch would seek to protect the search by reconfirming

Reyes's consent. Although, as Reyes suggests, it might have made

more sense for Trooper Lynch to request consent a second time once

other officers -- who could serve as witnesses to the consent --

had arrived on scene, it is not our role to decide whether Trooper

Lynch acted optimally in securing Reyes's consent, but rather to

assess whether his account is credible. Because Reyes has not

- 15 -
shown that Trooper Lynch's consent narrative is inherently

implausible or inconsistent, we will not overturn the district

court's consent finding on such grounds.

Reyes's additional attacks on the district court's

assessment of Trooper Lynch's credibility are, likewise,

unsuccessful. Reyes contends that there were several

inconsistencies in Trooper Lynch's written and oral statements on

matters unrelated to the consent issue that show that Trooper Lynch

is such an incredible witness overall that his testimony on the

question of consent should, correspondingly, not be believed.

Because the Government offers a persuasive rebuttal to each of

Reyes's contentions, Reyes again fails to satisfy his burden of

proving that the district court's credibility determination was

clearly erroneous.

Reyes first points to the fact that the Government asked

the district court to disregard in deciding the motion to suppress

the statement in Trooper Lynch's affidavit that he learned from

fellow officers that Reyes arrived at his home on the day of the

traffic stop at approximately 7:00 p.m. and that soon thereafter

Reyes placed a box taken from the suspicious parcel into the trunk

of his car and drove away. While Reyes suggests that the

Government's request itself reveals that Trooper Lynch is not

credible, the Government explained in its closing argument on the

motion to suppress that its request was motivated by the fact that

- 16 -
certain predicate observations did not come into evidence at the

evidentiary hearing. The Government made clear both that its

request did not stem from any conceded inaccuracy or dishonesty on

the part of Trooper Lynch, and that it was not asking the district

court to ignore Trooper Lynch's testimony at the hearing. The

Government was merely moving to withdraw aspects of the affidavit

that were not elicited during the evidentiary hearing.

Second, Reyes argues that Trooper Lynch's testimony

about the traffic violations committed by Reyes was "inconsistent

and dubious." Specifically, Reyes takes issue with Trooper

Lynch's claim on direct examination that he personally observed

Reyes tailgating. Reyes claims that on cross-examination, Trooper

Lynch changed his testimony about where in the "stack" of officer

vehicles he was in relation to Reyes and admitted that it was in

fact Trooper Pantazelos who observed the tailgating, while Trooper

Lynch learned of this traffic violation via radio transmission.

Contrary to Reyes's contention, there is no ipso facto

inconsistency. As the Government explained in oral argument,

tailgating is not necessarily an instantaneous phenomenon that

only one person can observe. Common sense dictates that if a

driver is tailgating over a period of time, two people could see

it. Thus, it could be simultaneously true that Trooper Lynch

first learned of Reyes's tailgating via the radio transmission of

Trooper Pantazelos and also observed the tailgating for himself

- 17 -
when he eventually moved into position behind Reyes in the State

Police cruiser. As such, Trooper Lynch's testimony on the traffic

violations is not inherently implausible or inconsistent such that

the district court's credibility determination should be

disturbed. See Merlino, 592 F.3d at 27.

Finally, Reyes contends that because Trooper Lynch's

testimony on "how long . . . Reyes was in handcuffs before being

questioned was different from that in his affidavit and at odds

with [Massachusetts State Police] records," he is an incredible

witness. Contrary to Reyes's assessment, Trooper Lynch's

statement in his affidavit that Reyes was in handcuffs for ten

minutes prior to his arrest is consistent with his testimony at

the evidentiary hearing that it was approximately ten to fifteen

minutes. Ignoring the fact that the district court found that

Reyes was handcuffed for around nineteen minutes before his arrest,

on appeal, Reyes invokes Trooper Lynch's evidentiary hearing

testimony that he stopped Reyes at 7:40 p.m. and an Administrative

Journal Extract that reads "20.20" to suggest that Reyes was

actually in handcuffs for approximately 35 minutes. For his part,

when asked at the evidentiary hearing, Trooper Lynch testified

that the entry "20.20" did not mean 8:20 p.m., but rather was "just

a number" assigned to the extract, unrelated to time. Thus, Reyes

has not identified any inconsistencies in Trooper Lynch's

testimony on the handcuffing, as Trooper Lynch has been entirely

- 18 -
consistent in his estimates and explanations.6

In short, Reyes's multifaceted attacks on the

credibility of Trooper Lynch are insufficient to show that the

district court clearly erred in holding that Reyes consented to

the search of his vehicle. We, therefore, affirm the factual

finding that Reyes twice consented to the search.7

b. The "effectively alone" Finding.

The district court found -- in part -- because Trooper

Lynch was "effectively alone" in attending to Reyes throughout the

stop, that Trooper Lynch's use of handcuffs "was reasonably

6 Moreover, Reyes has not succeeded in proving that Trooper Lynch's
testimony was inherently implausible. While there may be some
appeal to Reyes's contention that the label "20.20" on the
Administrative Journal Extract translated to 8:20 p.m. such that
a court could find that Reyes was in handcuffs for 35 minutes,
that argument was presented to and rejected by the district court;
instead, the trial court apparently chose to credit Trooper Lynch's
testimony that the entry "20.20" did not represent a time and that
the other times recorded in the Administrative Journal Extract
were inaccurate. Because "a district court's choice between two
plausible competing interpretations of the facts cannot be clearly
erroneous," United States v. Weidul, 325 F.3d 50, 53 (1st Cir.
2003) (citing United States v. Palmer, 203 F.3d 55, 60 (1st Cir.
2000)), Reyes has not satisfied his burden and we must respect
"the district court's superior vantage point" on this matter,
Espinoza, 490 F.3d at 46 (citing Zapata, 18 F.3d at 975).
7 As previously stated, in light of its finding of consent, the
district court further ruled that both the warrantless search of
Reyes's car and the admission at trial of the physical evidence
seized therein were permissible. In our forthcoming discussion
regarding Reyes's argument that the district court's denial order
did not reflect Supreme Court guidance, as embodied in Rodriguez
v. United States, 575 U.S. 348 (2015), we reject Reyes's Rodriguez-
based contention and affirm these additional consent rulings of
the district court. Infra p. 21–32.

- 19 -
necessary" to mitigate legitimate safety concerns presented by the

specific facts and circumstances of the stop. More broadly, the

district court assessed that nothing that transpired during the

stop -- including the handcuffing of Reyes -- transformed the

investigatory detention of Reyes into a de facto arrest in which

administration of Miranda rights was necessary. Accordingly, as

Mirandization of Reyes was not required, the District Court found

Reyes's statements made during the execution of the search to be

admissible.

On appeal, Reyes argues that because on-the-scene

officers outnumbered Reyes during the stop and because additional

officers covertly monitored the stop from a parking lot nearby,

the district court's "finding that Trooper Lynch was 'effectively

alone' cannot survive appellate review even under the deferential

clear error standard." While Reyes raises a nonfrivolous

challenge to the district court's "effectively alone" finding,

ultimately, we must ask what the impact of any such finding of

clear error would be: Would it transform the detention of Reyes

into a de facto arrest, such that Reyes's statements were

improperly admitted at trial given the lack of Miranda warnings?

Of particular -- and dispositive -- note, Reyes does not

articulate such an argument on appeal; the most he says is that

the district court's order denying his motion to suppress relied

on the erroneous finding of fact that Trooper Lynch was

- 20 -
"effectively alone" during the stop without referencing Miranda,

let alone explaining the broader admissibility consequences of

such a factual error. It cannot be said that these admissibility

consequences are inherent in Reyes's "effectively alone"

contention such that explicit argumentation is unnecessary, and

"[w]e [do] not consider potentially applicable arguments that are

not squarely presented in a party's appellate brief," Baybank-

Middlesex v. Ralar Distribs., Inc., 69 F.3d 1200, 1203–04 n.5 (1st

Cir. 1995) (citing United States v. Zannino, 895 F.2d 1, 17 (1st

Cir. 1990)). A litigant must "'spell out [his] arguments squarely

and distinctly,' or else forever hold [his] peace." Zannino, 895

F.2d at 17 (quoting Rivera-Gomez v. de Castro, 843 F.2d 631, 635

(1st Cir. 1988)).

Because we find that Reyes has waived the broader

admissibility argument, we conclude that, even assuming arguendo

error in the district court's "effectively alone" finding, that

error is of no consequence. At least on the basis argued by Reyes,

we discern no reason to disturb the district court's decision

denying the motion to suppress Reyes's statements made during the

stop.

2. Reyes's Rodriguez Argument

The district court found that the Government met its

burden of establishing that the stop and warrantless search of

Reyes were reasonable under the Fourth Amendment. On appeal,

- 21 -
Reyes argues that the district court's denial order was flawed

because the court did not adhere to the Supreme Court precedent,

Rodriguez v. United States, where the Court was clear that police

may not prolong a traffic stop to conduct a dog sniff unless the

officer has "the reasonable suspicion ordinarily demanded to

justify detaining [the] individual." 575 U.S. 348, 353-55 (2015).

By the defendant's assessment, Rodriguez illuminates that the stop

of Reyes "became an unreasonable search and seizure in violation

of the Fourth Amendment when Trooper Lynch detoured from the

mission of traffic enforcement in pursuit of evidence to further

an unrelated criminal investigation without reasonable suspicion."

We are unpersuaded by Reyes's Rodriguez argument.

a. Waiver.

As a threshold matter, the Government argues that

because Reyes (i) never raised a Rodriguez-based suppression

argument to the district court and (ii) made no attempt on appeal

to show "good cause" for the delay in raising it, the argument is

waived.8 While Reyes acknowledges that he did not specifically

8 Fed. R. Crim. P. 12(b)(3)(C) enumerates "suppression of evidence"
as a motion that must be made before trial. Fed. R. Crim. P.
12(c)(3) further specifies that "[i]f a party does not meet the
deadline for making a Rule 12(b)(3) motion, the motion is
untimely." However, "a court may consider the defense, objection,
or request if the party shows good cause." While there is a
circuit split as to whether defendants may still receive plain
error review for Rule 12 arguments not made before the district
court, see United States v. Lindsey, 3 F.4th 32, 41 n.6 (1st Cir.
2021) (collecting cases), we have recently clarified that in the

- 22 -
invoke the Rodriguez case by name in the district court, he

nevertheless contends this does not mean that he waived the

argument that the traffic stop morphed into an unconstitutional

search for drug evidence. Even assuming Reyes's argument below

was sufficient to preserve this issue, we nonetheless find that

the stop accords with the requirements of Rodriguez.

The essence of Reyes's Rodriguez-centered argument on

appeal is that accepting the district court's finding that Reyes

violated the traffic laws -- and the corresponding conclusion that

the stop was initially justified -- the stop became an

unconstitutional seizure "when Trooper Lynch detoured from the

mission of traffic enforcement in pursuit of evidence to further

an unrelated criminal investigation without reasonable suspicion."

We adopt, arguendo, Reyes's contention that the core of this

argument was articulated in his initial Memorandum in Support of

Motion to Suppress, which read in part: "[L]aw enforcement lacked

reasonable suspicion -- let alone the more stringent standard of

probable cause -- to believe that Reyes or [his car] were involved

in drug-related activity" and "nothing that occurred during the

traffic stop provided law enforcement probable cause to search the

First Circuit, unpreserved arguments under Fed. R. Crim. P.
12(b)(3) and (c)(3) "cannot be raised on appeal absent a showing
of good cause," id. at 40–41, and parties are "not entitled to
plain error review," id. at 42.

- 23 -
vehicle."9

We proceed to consider and reject Reyes's argument on

the merits.

b. Merits.

The district court found that both the stop and

warrantless search of Reyes were reasonable under the Fourth

Amendment and, thus, declined to suppress the items seized from

the vehicle. While we agree with the district court's ultimate

conclusion, our rationale is slightly different from that

articulated in the suppression decision. "[W]e are not wed to the

district court's reasoning but, rather, may affirm its suppression

rulings on any basis apparent in the record." Arnott, 758 F.3d

9 Reyes's Memorandum in Support of Motion to Suppress further read:
That the [car] was purportedly involved in a traffic
violation, which Reyes denies (see Reyes Aff., attached
hereto as Ex. B), was not sufficient to provide law
enforcement with probable cause to search the vehicle.
See [California v.] Acevedo, 500 U.S. [565,] 569-570
[(1991)] ("If the officer goes beyond a brief
investigatory stop and actually searches or seizes a
vehicle in the absence of a warrant, the officer must
have 'probable cause to believe that the vehicle
contain[s] evidence of crime in the light of an exigency
arising out of the likely disappearance of the
vehicle.'") Nor was the fact that Reyes was nervous an
adequate reason to search the [car]. See United States
v. McKoy, 428 F.3d 38, 40 (1st Cir. 2005) (holding that
there was not reasonable suspicion to justify pat frisk
of defendant solely based upon the dangerousness of the
neighborhood and the defendant's "nervous demeanor," as
"[n]ervousness is a common and entirely natural reaction
to police presence. . . .").

- 24 -
at 43. Accordingly, in affirming here, we supplement the analysis

in the denial order, which did not consider the Rodriguez argument

Reyes now presses expressly.

The Fourth Amendment guarantees "[t]he right of the

people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures." U.S. Const.

amend. IV. "Temporary detention of individuals during the stop

of an automobile by the police, even if only for a brief period

and for a limited purpose, constitutes a 'seizure' of 'persons'

within the meaning of this provision." Whren v. United States,

517 U.S. 806, 809–10 (1996). "[W]here the police have probable

cause to believe that a traffic violation has occurred," "the

decision to stop an automobile is reasonable" under the Fourth

Amendment, id. at 810, and a police investigation of that violation

is justified, Rodriguez, 575 U.S. at 354. While "[a] traffic stop

is a 'relatively brief encounter' intended to 'address the traffic

violation that warranted the stop,'" United States v. Cruz-Rivera,

14 F.4th 32, 43 (1st Cir. 2021) (quoting Rodriguez, 575 U.S. at

354), it is well-established that "where there is reasonable

suspicion of further criminal wrongdoing," id. (citing United

States v. Lee, 317 F.3d 26, 33 (1st Cir. 2003)), an officer may

use a traffic violation as a pretext to stop a car in order to

obtain evidence for some more serious crime, United States v.

McGregor, 650 F.3d 813, 820 (1st Cir. 2011) (citing Whren, 517

- 25 -
U.S. at 810). However, where "a seizure is 'justified only by a

police-observed traffic violation,' officers may not prolong a

stop [to investigate another crime] 'absent the reasonable

suspicion ordinarily demanded to justify detaining an

individual.'" Cruz-Rivera, 14 F.4th at 46–47 (quoting Rodriguez,

575 U.S. at 350, 355).

In the case at bar, the district court explained that

because it found "as a factual matter that [Reyes] did commit

traffic violations," "[t]his gave Trooper Lynch probable cause to

stop [Reyes] for those traffic violations even if doing so was

'just an excuse to investigate something else.'" Accordingly, the

stop was reasonable under the Fourth Amendment. Furthermore,

because the district court found that Reyes "voluntarily consented

to the search of his vehicle, including the trunk," it held "the

search was reasonable under the Fourth Amendment." Having found

that Reyes gave voluntary consent, the district court held there

was "no need to address whether law enforcement had probable cause

to conduct the warrantless search."

Supreme Court case law indicates that an additional link

is needed. For example, the Court explained in Illinois v.

Caballes, that even when a traffic stop is based on probable cause

-- as the district court found the stop of Reyes to be in light of

his tailgating and speeding violations -- "a seizure that is lawful

at its inception can [ultimately still] violate the Fourth

- 26 -
Amendment." 543 U.S. 405, 407 (2005). Specifically, tasks not

related to the traffic mission, such as "[o]n-scene investigation

into other crimes," are "unlawful" if they prolong the stop absent

independent reasonable suspicion. Rodriguez, 575 U.S. at 355–57.

Here, without Rodriguez squarely invoked before it, the district

court did not -- or at least did not explicitly -- find that

independent reasonable suspicion existed to justify extending the

stop of Reyes beyond an investigation of traffic violations into

an investigation of unrelated drug crimes.

This lack of an explicit independent reasonable

suspicion finding complicates the district court's conclusion that

Reyes's consent validated the search of his vehicle. In Florida

v. Royer, the Supreme Court affirmed that because "the bounds of

an investigative stop had been exceeded" at the time that the

defendant Royer gave consent to search his luggage, Royer's consent

was "tainted by . . . illegality" and therefore "ineffective to

justify the search." 460 U.S. 491, 501, 507–08 (1983).

Importantly, the Court clarified that "had Royer voluntarily

consented to the search of his luggage while he was justifiably

being detained on reasonable suspicion," id. at 502, or while he

was not yet seized, id. at 503–05, "the products of the search

would be admissible against him," id. at 502.

In Reyes's case, there is no question that he was seized

at the time he gave his consent to the vehicle search. Whren, 517

- 27 -
U.S. at 809–10 ("Temporary detention of individuals during the

stop of an automobile by the police . . . constitutes a 'seizure'

of 'persons' within the meaning of [the Fourth Amendment].").

Thus, applying Royer and Rodriguez, in order for Reyes's consent

to have been effective to justify the search of his vehicle, Reyes

must have been legally detained at the time such consent was given

-- either because Trooper Lynch was still in the process of

completing tasks related to the valid traffic mission10 or because

independent reasonable suspicion justified extending the stop

beyond the investigation of traffic violations. Again, without

Rodriguez squarely presented, the district court did not consider

whether independent reasonable suspicion was necessary to extend

the stop, but instead declared that because Reyes's consent had

blessed the search, it was unnecessary to address whether law

enforcement also had probable cause for that search.

Consequently, because the district court did not explicitly find

that Reyes's detention continued to be lawful at the time he gave

his consent, it is not clear from the denial order that Reyes's

10We note that the Supreme Court has declared that "a dog sniff
is not fairly characterized as part of [an] officer's traffic
mission." Rodriguez, 575 U.S. at 356. Thus -- in the absence of
independent reasonable suspicion justifying extension of the
traffic stop into investigation of other crimes -- the traffic
stop of Reyes would, at a minimum, become unlawful at the
commencement of the canine search of Reyes's vehicle. We
ultimately conclude that law enforcement here had the requisite
independent reasonable suspicion to extend the stop. Infra p. 30–
32.

- 28 -
consent was valid to justify the search.

We note that in Rodriguez, the Supreme Court did not

definitively rule out the possibility that independent reasonable

suspicion of additional criminal wrongdoing existed to justify

detaining Rodriguez beyond the completion of the traffic

investigation, but rather left that question open for the Eighth

Circuit's consideration on remand. 575 U.S. at 358. Here too,

the district court did not rule on whether independent reasonable

suspicion existed to justify extending the traffic stop. Of

course, "the general rule is that a 'federal appellate court does

not consider an issue not passed on below,'" N.H. Motor Transp.

Ass'n v. Flynn, 751 F.2d 43, 52 (1st Cir. 1984) (quoting Singleton

v. Wulff, 428 U.S. 106, 120 (1976)), however, the Supreme Court

has instructed:

The matter of what questions may be taken up
and resolved for the first time on appeal is
one left primarily to the discretion of the
courts of appeals, to be exercised on the
facts of individual cases. . . . Certainly
there are circumstances in which a federal
appellate court is justified in resolving an
issue not passed on below.
Id. (alteration in original) (quoting Wulff, 428 U.S. at 121).

Because we review district courts' legal conclusions on reasonable

suspicion de novo, Arnott, 758 F.3d at 43 (emphasis added), and

because we assess that we would not be materially aided by

additional fact or credibility findings by the district court, we

- 29 -
deem remand unnecessary here. Compare Rodriguez, 575 U.S. at 358,

with United States v. Berryman, 717 F.2d 651, 663 (1st Cir. 1983)

(Breyer, J., dissenting) (making a first-instance finding of

reasonable suspicion on appeal), and United States v. Berryman,

717 F.2d 650, 650 (1st Cir. 1983) (en banc) (adopting the dissent

upon rehearing en banc). We now consider whether independent

reasonable suspicion existed to extend the stop of Reyes.

"No simple, mechanical formula tells us what reasonable

suspicion is, though we know that it is less than probable cause

and more than a naked hunch. . . . [C]ourts must gauge its presence

in a commonsense, case-by-case way, taking in the whole picture."

Cruz-Rivera, 14 F.4th at 43 (alteration in original) (quoting

McGregor, 650 F.3d at 821). Considering the "totality of the

circumstances," id. at 44, we find that Trooper Lynch had

sufficient independent reasonable suspicion of additional criminal

wrongdoing to support his continued detention and questioning of

Reyes.

We are informed by our recent opinion in Cruz-Rivera, in

which we affirmed a finding of independent reasonable suspicion on

the basis of similar factual elements to those presented here. 14

F.4th at 44–47. In Cruz-Rivera, as part of a larger, ongoing

investigation into a heroin distribution conspiracy, law

enforcement executed a "walled-off" stop in which the police pulled

over the defendants for a pretextual -- though valid -- traffic

- 30 -
violation with the aim of furthering the drug investigation. Id.

at 40. We found that the valid traffic violation justified the

initial stop, id. at 44, and moreover, that the officer executing

the stop had independent reasonable suspicion to extend the

investigative detention beyond the initial traffic infractions

into possible drug crimes given: (i) the trooper's pre-existing

knowledge that the vehicle had likely been involved in a drug

transaction; and (ii) the defendants' noticeable nervousness and

inconsistent answers upon police questioning, id. at 44–47.

Similarly, here, law enforcement identified Reyes as a

suspected participant in a drug distribution conspiracy via an

ongoing investigation that began in February 2016. On July 18,

the investigative team carried out a controlled delivery of drugs

to Reyes and targeted Reyes for a "walled-off" traffic stop at a

time in which the surveillance team believed Reyes would be

transporting the drugs. Trooper Lynch -- a member of the

investigative team -- executed the "walled-off" stop after Reyes

committed traffic violations of speeding and tailgating. On

appeal, Reyes accepts the district court's finding that at least

one traffic violation occurred, justifying the initial stop.

During questioning, Trooper Lynch, who "knew more about Mr. Reyes

than [he] let on to believe," observed that Reyes was both

extremely nervous -- his hands were shaking -- and was unable to

provide basic details on his professed destination beyond

- 31 -
"Boston". Moreover, Trooper Lynch saw that Reyes was crumpling a

shipping label in his left hand, which Trooper Lynch confiscated

and identified as the Priority Mail label from the parcel that had

been delivered earlier that day as part of the controlled delivery.

Thus, following the model of Cruz-Rivera and taking into account

the "totality of the circumstances," we conclude that Trooper Lynch

had the necessary independent reasonable suspicion to justify

extending Reyes's detention beyond an investigation of traffic

violations into unrelated drug crimes.

Having determined that the requisite independent

reasonable suspicion existed to justify extending the stop, we

correspondingly find that Reyes was not illegally detained at the

time he consented to the vehicle search, such that his consent was

effective to justify the search under Royer. Supra p. 27–28. We

can, thus, affirm the district court's finding that because Reyes

consented to the search of his vehicle, the warrantless search was

reasonable under the Fourth Amendment and the items seized from

the vehicle were properly admitted at trial.

B. Evidentiary Rulings

Reyes raises evidentiary challenges to the district

court's admission of certain statements by witnesses Trooper Lynch

and Postal Inspector Stephen Dowd. On appeal, Reyes argues the

contested statements were not proper lay testimony as they did not

- 32 -
help the jury to understand any facts, 11 but rather unfairly

prejudiced him and tainted the proceedings such that a new trial

is required. By contrast, the Government defends the propriety

of each of the challenged rulings, while also arguing that even if

the district court erred in admitting some or all of the contested

evidence, such admissions did not influence the verdict and were,

therefore, harmless. We agree that the contested evidence was

either properly admitted or was harmless.

"We review a district court's admission of lay opinion

testimony under Fed. R. Evid. 701 for manifest abuse of

discretion." United States v. Jackman, 48 F.3d 1, 4 (1st Cir.

1995). To be admissible under Rule 701, lay opinion must be: (i)

"rationally based on the witness's perception," Fed. R. Evid.

701(a); (ii) "helpful to clearly understanding the witness's

testimony or to determining a fact in issue," Fed. R. Evid. 701(b);

and (iii) "not based on scientific, technical, or other specialized

11We note that the heading of the evidentiary section of Reyes's
brief appears to contain a typographical error. The brief asserts
that the district court erred in permitting testimony of Inspector
Dowd and Trooper Lynch that "failed to meet the second requirement
of F.R.Evid. [sic] 702 as it did not help the jury understand any
fact." The second requirement of Fed. R. Evid. 701 on lay
testimony -- and not that of Fed. R. Evid. 702 on expert testimony
-- enumerates a requirement that testimony be helpful to
determining a fact in issue. In light of the Rules' wording and
because nothing else indicates that Inspector Dowd or Trooper Lynch
were, or should have been, qualified as expert witnesses under
Fed. R. Evid. 702, we assume -- as the Government did in its
briefing -- that Reyes intended to lodge objections to Inspector
Dowd's and Trooper Lynch's statements under Fed. R. Evid. 701.

- 33 -
knowledge," Fed. R. Evid. 701(c). As these are conjunctive

requirements, lay witness testimony that fails to satisfy a single

prong of Rule 701 is not properly admitted. See Fed. R. Evid.

701(a)–(c).

However, "[n]ot all erroneous evidentiary rulings

require reversal." United States v. Obiora, 910 F.3d 555, 560–61

(1st Cir. 2018). "It is settled that '[a] non-constitutional

evidentiary error is harmless (and, therefore, does not require a

new trial) so long as it is highly probable that the error did not

influence the verdict.'" United States v. Flemmi, 402 F.3d 79,

95 (1st Cir. 2005) (alteration in original) (quoting United States

v. Piper, 298 F.3d 47, 56 (1st Cir. 2002)). Such a determination

"requires a case-specific examination of . . . 'the centrality of

the tainted material,' its prejudicial impact, and any other

indications that 'the error affected the factfinder's resolution

of a material issue.'" United States v. Meises, 645 F.3d 5, 24

(1st Cir. 2011) (quoting United States v. Sepulveda, 15 F.3d 1161,

1182 (1st Cir. 1993)).

In the case at bar, the parties agree that the central

question -- and indeed the only material issue -- is whether Reyes

knew that the package he was transporting at the time of the

traffic stop contained cocaine, and thus, whether Reyes was a

participant in the conspiracy. Defense counsel made explicit in

closing argument at trial that Reyes does not contest: (i) the

- 34 -
existence of an overarching drug-distribution conspiracy; (ii)

that he had been receiving packages for Santiago-Cruz; or (iii)

that the Girl Scout Cookie Oven found in his car held concealed

cocaine; Reyes only disputes that he knew that said Girl Scout

Cookie Oven contained drugs. Because Reyes's defense focused

exclusively on his knowing participation, in order for us to hold

that it was "highly probable" that the district court's evidentiary

rulings "influence[d] the verdict," Flemmi, 402 F.3d at 95 (quoting

Piper, 298 F.3d at 56), we must determine that such admitted

testimony concerned the "central question" of Reyes's knowledge,

see, e.g., Obiora, 910 F.3d at 563 (finding admission of contested

testimony harmless because it was "irrelevant to the central

question of whether [the defendant] agreed in the first place to

distribute heroin"). 12 As such, we will examine each of the

challenged evidentiary admissions through this lens.

1. Trooper Lynch's Testimony

At trial, Reyes objected to Trooper Lynch's statements

that (i) past narcotics investigations in which Trooper Lynch had

been involved typically resulted in arrests for narcotics

violations; (ii) Reyes drove like "[h]e knew where he was going"

12Contra Meises, 645 F.3d at 25 (granting a new trial where "the
tainted evidence was central to the prosecution's case and
potentially disastrous to the appellants' defense," such that we
"[could] not say that it [wa]s 'highly probable' that the errors
did not affect the jury's resolution of the case").

- 35 -
on the day of the July 18, 2016 traffic stop; and (iii) Reyes "was

trying to make up a story [about] where he was going" while

responding to Trooper Lynch's questions during the stop. We

conclude that each of these statements was either properly admitted

or its admission was harmless error.

a. Narcotics Investigations Typically Result in Arrests.

At the beginning of direct examination of Trooper Lynch

at trial, the Government engaged in the following exchange with

him:

Q. Okay. So over the last five plus years
have you had an opportunity to conduct such
investigations into narcotics?
A. Yes, sir.
Q. And on approximately how many different
occasions?
A. Hundreds of investigations, sir.
Q. Okay. And what were the results or
findings of those investigations?
[DEFENSE COUNSEL]: Objection.
THE COURT: Sustained.
Q. When you finished those investigations,
what would typically happen?
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled. You may answer
that.
A. We would arrest individuals for narcotics
violations.

Reyes objected below and on appeal now contends that such testimony

was "in the nature of overview testimony" that served to

- 36 -
impermissibly bolster Trooper Lynch's credibility. (emphasis

added). The Government counters that this exchange was not

"overview testimony" and did not in any way suggest that Reyes was

guilty of the crime charged. While we think that this minimally

probative exchange toed the line of propriety, we conclude that

any error in its admission was ultimately harmless.

Typically, "[a]n 'overview witness' is a government

agent who testifies as one of the prosecution's first witnesses

and . . . provides an overview or roadmap of the prosecution's

case to come." United States v. Etienne, 772 F.3d 907, 913 (1st

Cir. 2014) (citing United States v. Brown, 669 F.3d 10, 24 (1st

Cir. 2012)). While there is no "blanket ban on all overview

testimony," id. at 914, such testimony is "[d]isfavored" in the

drug conspiracy context where a law enforcement agent "based on

the results of the agency's overall investigation, rather than on

his own personal knowledge or participation" "testif[ies] about a

defendant's specific role in [a] charged conspiracy," id. at 913-

14.

Here, the contested exchange with Trooper Lynch was not

"overview testimony"; Trooper Lynch did not "provide[] a[] . . .

roadmap of the prosecution's case to come." Id. at 913. However,

Reyes's concerns that the testimony made representations about

matters not before the trial court and served only to enhance the

jury's confidence in Trooper Lynch -- verging on witness bolstering

- 37 -
-- are nonfrivolous. See United States v. Fields, 660 F.3d 95,

97 n.3 (1st Cir. 2011) (defining "bolstering").13

But ultimately, we hold that even if the trial court

erred in admitting this exchange, any such error was harmless.

This is so because Trooper Lynch's generalized statement did not

mention Reyes, let alone discuss his "specific role in the charged

conspiracy," Etienne, 772 F.3d at 914; we, therefore, cannot say

that this testimony implicated the central question of Reyes's

knowledge such that it was "highly probable" that the error

"influence[d] the verdict," Flemmi, 402 F.3d at 95 (quoting Piper,

298 F.3d at 56). Our conclusion is buttressed both by the weight

of the evidence suggesting that Reyes was a knowing participant in

the drug conspiracy, and not just innocently receiving parcels for

a friend,14 as well as by the fact that Trooper Lynch was subject

13We note that the contested exchange with Trooper Lynch amounted
to a recitation of certain language contained in his affidavit
presented to the district court in support of the Government's
opposition to Reyes's motion to suppress. While such language is
commonplace in affidavits presented to a district court judge, lay
jurors are not in the same position as a trial judge to analyze
such representations in a circumscribed form.
14Namely: Reyes received multiple packages for Santiago-Cruz; most
of these packages were addressed from relatives of Reyes, despite
being for Santiago-Cruz; the packages had slightly incorrect
addresses for Reyes and non-deliverable return addresses, a
reportedly common characteristic of parcels containing drug
contraband; Reyes and Santiago-Cruz had multiple telephone
contacts on the days the parcels were shipped and delivered; Reyes
met with Santiago-Cruz after the deliveries; Reyes removed the
mailing label from the parcel before discarding the box; during
the stop, Reyes lied to Trooper Lynch about why he had a Girl Scout
Cookie Oven in his car; and so on.

- 38 -
to substantial cross-examination at trial. See, e.g., United

States v. Torres-Galindo, 206 F.3d 136, 140-42 (1st Cir. 2000)

(deeming harmless the erroneous admission of a testifying agent's

generalized statement that suspects frequently first deny and then

later admit their involvement in a crime where the agent's

credibility was fully explored at trial and the weight of the

evidence against the defendant was "so great" that the "testimony

did not likely affect the jury's verdict").

Although we ultimately deem harmless any error in

admitting Trooper Lynch's generalized account that narcotics

investigations typically result in arrests, in closing, we note

that by soliciting this minimally probative testimony, the

prosecution created an unnecessary appellate issue.

b. Reyes Drove "like he knew where he was going".

Reyes next objects to the admission of Trooper Lynch's

testimony that prior to the stop on July 18, 2016, Reyes was

driving "like he knew where he was going," elicited in the context

of the following exchange:

Q. Now, are you familiar with the most direct route
between 47 Winthrop Street [Reyes's address] and 185
Metropolitan Ave. [Santiago-Cruz's address]?
A. Yes, sir.
Q. And how would that route compare to the route that
Mr. Reyes took on that day?
A. In my opinion, it's the most direct route.
Q. And with respect to the route that he took that day,
how would you characterize his driving?

- 39 -
 A. He knew where he was going.
[DEFENSE COUNSEL]: Objection. Move to strike.

The Government contends that such lay opinion was admissible, but

argues as a threshold matter that because Reyes "fail[ed] to

specify the nature of his complaint" concerning the statement, it

should be "deemed waived for lack of development." (citing

Zannino, 895 F.2d at 17 ("[I]ssues adverted to in a perfunctory

manner . . . are deemed waived.")). Because Reyes's briefing on

this objection consisted of one conclusory sentence, we agree with

the Government that Reyes's objection is waived.15

c. Reyes "was trying to make up a story [about] where he was
going".

Reyes further objects to the admission of statements by

Trooper Lynch describing Reyes's behavior during the traffic stop.

In particular contention is Trooper Lynch's assertion that Reyes

15But waiver aside, Reyes's objection is unavailing. This is so
because the Government solicited the contested statement from
Trooper Lynch in order to establish its theory that Reyes was
driving to Santiago-Cruz's house at the time of the traffic stop.
Crucially, Reyes did not dispute that he was going to give the
parcel containing the Girl Scout Cookie Oven -- and the concealed
drugs therein -- to Santiago-Cruz. Indeed, the defense's theory
of the case hinged on the jury simultaneously accepting that Reyes
intended to give the package to Santiago-Cruz, but that he had no
knowledge of the package's contents. Thus, whether or not Reyes
was in fact en route to Santiago-Cruz's house at the precise moment
of the traffic stop -- the theory to which Trooper Lynch's "he
knew where he was going" statement lent support -- was extraneous.
Because Trooper Lynch's contested statement shed minimal, if any,
light on the central question of Reyes's knowledge of the parcel's
contents, its admission -- even if erroneous -- was harmless.

- 40 -
"was trying to make up a story" in the following exchange:

A. . . . I said, "Where in Boston [are you
going]?" But he couldn't say where.
Q. How did his answers to that question differ
from his answers to your earlier questions?
A. His demeanor changed. He was holding the
steering wheel, and he was looking . . .
straight ahead, and he was holding onto the
steering wheel and I could see him crumpling
something in his left hand.
Q. Before we get to that, what, if any,
investigative value did his inability to give
you specifics about where he was going have?
A. Like I said to you, sir, I knew more about
Mr. Reyes than I let on to believe. So at
that time I knew he was trying to make up a
story where he was going.
[DEFENSE COUNSEL]: Objection. Move to
strike.

On appeal, Reyes contends that Trooper Lynch invaded the province

of the jury by opining on "facts relevant to innocence or guilt,"

including Reyes's veracity during the stop. By contrast, the

Government maintains that Trooper Lynch's testimony did not usurp

the jury's role, but rather met all of the requirements for lay

testimony under Rule 701. The Government's position prevails.

Trooper Lynch's statement satisfied each of Rule 701's

requirements for lay testimony: Trooper Lynch's testimony (i) was

rationally based on his perceptions under 701(a), as it recounted

Trooper Lynch's own interactions with and assessment of Reyes

during the stop; (ii) was "helpful" to the jury under 701(b)

because Trooper Lynch participated in the conversation with Reyes,

- 41 -
while the jury did not; and (iii) was not based on scientific,

technical, or other specialized knowledge under 701(c), because it

derived in large part from observations of Reyes's body language

and demeanor against the backdrop of Trooper Lynch's personal

involvement in the broader investigation.

Although "one can't actually read another person's mind,

one is often able to infer, from what the person says or from the

expression on his face or other body language, what he is

thinking." United States v. Prange, 771 F.3d 17, 29 (1st Cir.

2014) (quoting United States v. Curescu, 674 F.3d 735, 740 (7th

Cir. 2012)). Trooper Lynch, as a lay witness, was therefore "free

to state his rationally-based perception of what [Reyes] was

thinking during their face-to-face conversation." Id.

Reyes's argument to the contrary -- that by opining on

"facts relevant to innocence or guilt," including Reyes's veracity

during the stop, Trooper Lynch impermissibly usurped the role of

the jury -- is unavailing. First, the Federal Rules of Evidence

themselves dictate that "lay opinion 'is not objectionable just

because it embraces an ultimate issue.'" Id. at 30 (quoting Fed.

R. Evid. 704(a)). Here, Reyes does not contend that Trooper Lynch

opined on an ultimate issue, but merely implied that his statement

concerned "facts relevant to innocence or guilt." Because Trooper

Lynch's testimony would not have been ipso facto inadmissible even

had it "embrace[d] an ultimate issue," Fed. R. Evid. 704(a), we

- 42 -
cannot accept Reyes's broader proposition that Trooper Lynch's lay

opinion "invade[d] the jury's province" and was, thus,

inadmissible because it concerned "facts relevant to innocence or

guilt." (emphasis added). Nor has Reyes shown that it is

categorically impermissible for a lay witness to opine on the

veracity of another's out-of-court statements, as each of the cases

he invoked either concerned in-court statements, see, e.g., United

States v. Thiongo, 344 F.3d 55, 61 (1st Cir. 2003) ("This Court

has held it is improper for an attorney to ask a witness whether

another witness lied on the stand.") (emphasis added),16 or were

otherwise inapposite, see United States v. Serrano-Osorio, 191

F.3d 12, 14-15 (1st Cir. 1999) (addressing no admissibility of

evidence issues).

In light of the above, we conclude that Trooper Lynch's

assessment of Reyes during the traffic stop was admissible lay

testimony under Rule 701. Our finding of admissibility ends the

16See also United States v. Sullivan, 85 F.3d 743, 750 (1st Cir.
1996) ("The rule . . . makes it improper to induce a witness to
say another witness lied on the stand.") (emphasis added); United
States v. Pereira, 848 F.3d 17, 21 (1st Cir. 2017) ("Over the past
twenty-five years, this court has consistently held that 'counsel
should not ask one witness to comment on the veracity of the
testimony of another witness.'") (emphasis added) (quoting
Sullivan, 85 F.3d at 750)); United States v. Akitoye, 923 F.2d
221, 223-24 (1st Cir. 1991) (finding in part that the trial court
"justifiably sustained" the defendant's objection to a question on
whether another witness was "lying to this Jury" because it was
the kind of "'was-the-witness-lying' question . . . by the
prosecutor . . . [that] should never have been posed").

- 43 -
matter; however, we note that even had the district court erred in

admitting Trooper Lynch's assessment, such an error would be

harmless for the same reasons that admission of Trooper Lynch's

generalized account of his past narcotics investigations was

harmless: namely, that Trooper Lynch was subject to extensive

cross-examination and the other evidence against Reyes was

sufficiently substantial. Supra p. 38-39. We determine this to

be true even though, here, the contested statement arguably touched

upon the case's "central question" of Reyes's knowledge.

Concerning the exploration of Trooper Lynch's

credibility, it is important that at trial, defense counsel

highlighted specific misperceptions of Trooper Lynch during the

traffic stop. For example, in closing, defense counsel noted:

"Trooper Lynch admitted that when he stopped Mr. Reyes and he saw

. . . little white crumbles in his hands, he assumed it was

cocaine. . . . Guess what? He was wrong. It wasn't cocaine."

Thus, shortly before the jurors were excused to deliberate, defense

counsel underscored that Trooper Lynch's perceptions and

assumptions were not infallible. As such, the accuracy of Trooper

Lynch's assessment of Reyes during the traffic stop was a matter

"presented to the jury for its evaluation." See Torres-Galindo,

206 F.3d at 141.

Moreover, the weight of the evidence continues to be

sufficiently substantial such that it is "highly probable" that

- 44 -
Trooper Lynch's assessment of Reyes's veracity during the stop

"did not influence the verdict." Flemmi, 402 F.3d at 95 (quoting

Piper, 298 F.3d at 56). In addition to the evidentiary proof

previously enumerated, supra p. 38 n.14, we also note that defense

counsel conceded at trial that Reyes lied to Trooper Lynch at least

once during the traffic stop. For example, in closing, defense

counsel acknowledged that after the canine unit alerted to the

presence of contraband in the Girl Scout Cookie Oven, Reyes was

not honest with Trooper Lynch about how or why he came to have the

oven in his possession. Thus, the jury had cause to doubt Reyes's

veracity during the stop even without Trooper Lynch's assessment.

This justifiable doubt coupled with the weight of the other

evidence persuade us that it is "highly probable" that any

potential error in admitting Trooper Lynch's assessment of Reyes

during the stop "did not influence" the jury's resolution of the

case.

In sum, although we determine that the district court

did not manifestly abuse its discretion in admitting Trooper

Lynch's statement that Reyes "was trying to make up a story," any

error in admission would also have been harmless.

2. Inspector Dowd's Testimony

Finally, Reyes objected to the admission of Postal

Inspector Stephen Dowd's lay testimony that the labels on the

parcels addressed to Reyes and others appeared to have common

- 45 -
authorship based on the similarity in handwriting. The following

is an example of the Government and Inspector Dowd's exchanges on

this issue:

Q. And do you have an opinion with respect to
the handwriting on both [labels]?
A. Yes.
Q. And what is that opinion?
A. I believe the same person wrote these
labels.
Q. And, again, what's the basis for that?
A. By looking at the different letters, and
they appear to be exactly duplicates on both.

As Inspector Dowd gave his testimony, the various labels under

discussion were shown side-by-side on a split-screen for the jury

to view. On appeal, Reyes argues that Inspector Dowd's lay

testimony was not "helpful" to the jury under Rule 701 where "[t]he

jurors not only could view and compare the handwriting on the

various labels for themselves, but they did so." By contrast, the

Government maintains that Inspector Dowd's testimony was

"helpful."

While we tend to agree with the Government that Reyes's

"argument misapprehends the scope of Fed. R. Evid. 701,"17 in any

17Our standard for excluding lay opinion testimony as "unhelpful"
under Rule 701 requires "that the witness [be] no better suited
than the jury to make" the judgment at issue. United States v.
Kornegay, 410 F.3d 89, 95 (1st Cir. 2005) (emphasis added) (quoting
Jackman, 48 F.3d at 4-5). We find it difficult to say that
Inspector Dowd was no better suited than the jury to assess the
labels where Inspector Dowd had relevant background from the

- 46 -
case, even if the district court did err in admitting Inspector

Dowd's testimony, such error would again be harmless as the

testimony did not concern the central question of Reyes's

knowledge. The Government used Inspector Dowd's handwriting

testimony to help establish that a drug conspiracy existed; but

Reyes did not dispute the existence of a conspiracy. Reyes only

disputed that he was a knowing participant in said conspiracy.

For its part, the Government never attempted to argue that the

similar handwriting on the parcel labels was "probative of Reyes's

knowledge" or even that Reyes would have "noticed that the

handwriting was the same." Indeed, defense counsel itself argued

in opening statement that Inspector Dowd "w[ould not] be able to

[explain] why a normal, non-law enforcement person would consider

[the parcels] suspicious." Thus, because Inspector Dowd's

testimony addressed an uncontested issue, and because the

Government never invoked Inspector Dowd's testimony to prove the

central question of Reyes's knowledge, its admission, erroneous or

otherwise, was harmless.

3. Conclusion

In sum, having examined each of the challenged

evidentiary rulings, we conclude that the district court did not

investigation that the jurors did not and his assessment "was not
limited to three days in a sterile courtroom setting," Jackman, 48
F.3d at 5.

- 47 -
manifestly abuse its discretion in admitting the contested

statements or in the event of any error, such error was harmless.

"While we [may] have uncovered a . . . benign bevue[], e.g.,"

admission of the minimally probative account of Trooper Lynch's

past narcotics investigations, this "error[] w[as] not portentous"

where "the government's case was very strong," Sepulveda, 15 F.3d

at 1196; supra p. 38 n.14. As Reyes has not "achiev[ed] the

critical mass necessary to cast a shadow upon the integrity of the

verdict," see 15 F.3d at 1196, we deny his request for a new trial.

C. Speedy Trial Claims

Reyes also lodges pro se claims, alleging -- for the

first time on appeal -- violations of his right to a speedy trial

under the Speedy Trial Act, 18 U.S.C. §§ 3161–3174, and the

Constitution; accordingly, Reyes asks us to vacate his conviction

and sentence and to order a new trial. The Government argues that

Reyes's claims under the Speedy Trial Act are waived and that his

constitutional claim is meritless. We agree with the Government.

1. Speedy Trial Act Claims

Reyes raises two issues under the Speedy Trial Act: He

claims that his statutory rights were violated first, because he

was indicted more than 30 days after his arrest, and second,

because his trial commenced twenty-six months after his arrest.

The Government correctly contends that because Reyes did not raise

- 48 -
any statutory speedy trial claims in the district court, such

claims are waived.

"The Speedy Trial Act . . . is generally concerned with

two periods of delay: delay in bringing an information or

indictment after arrest and delay in commencing trial after

information, indictment, or the defendant's first appearance."

United States v. Spagnuolo, 469 F.3d 39, 40 (1st Cir. 2006). The

deadlines for these periods are laid out in § 3161(b)-(c)(1):

namely, thirty days to indictment and an additional seventy days

to trial. 18 Sanctions for governmental non-compliance with

§ 3161's statutory deadlines include dismissal of charges for

overdue indictments and case dismissal for delayed trials. See

18 U.S.C. § 3162.19 In order to exercise one's remedy for a delayed

18 The Speedy Trial Act, at § 3161, provides in pertinent part:
. . .
(b) Any information or indictment charging an individual
with the commission of an offense shall be filed within
thirty days from the date on which such individual was
arrested or served with a summons in connection with
such charges. . . .
(c)(1) In any case in which a plea of not guilty is
entered, the trial of a defendant charged in an
information or indictment with the commission of an
offense shall commence within seventy days from the
filing date (and making public) of the information or
indictment, or from the date the defendant has appeared
before a judicial officer of the court in which such
charge is pending, whichever date last occurs. . . .
19 Section 3162 of the Speedy Trial Act provides in pertinent part:
(a)(1) If, in the case of any individual against whom a

- 49 -
trial, § 3162(a)(2) explicitly requires a defendant to file a

motion for dismissal; we have clarified that a defendant must also

file a motion to remedy a delayed indictment under § 3162(a)(1),

Spagnuolo, 469 F.3d at 44-46 (concluding "the motion and waiver

provision of § 3162(a)(2) also applies to § 3162(a)(1) speedy

indictment claims"). Thus, a defendant's failure to timely file

a motion to remedy speedy indictment and/or speedy trial violations

under the Speedy Trial Act will result in a waiver of such rights

for which "not even plain error review is available." Id. at 41.

Here, the Government maintains that Reyes failed to move

for dismissal under either § 3162(a)(1) or (2) prior to trial.

Because Reyes has not identified anything in the record that

preserves his statutory speedy trial claims, we find such claims

are waived.

complaint is filed charging such individual with an
offense, no indictment or information is filed within
the time limit required by section 3161(b) as extended
by section 3161(h) of this chapter, such charge against
that individual contained in such complaint shall be
dismissed or otherwise dropped. . . .
(2) If a defendant is not brought to trial within the
time limit required by section 3161(c) as extended by
section 3161(h), the information or indictment shall be
dismissed on motion of the defendant. . . . Failure of
the defendant to move for dismissal prior to trial or
entry of a plea of guilty or nolo contendere shall
constitute a waiver of the right to dismissal under this
section.
(emphasis added).

- 50 -
 2. Constitutional Claim

Reyes further argues that the twenty-six-month delay

between his arrest and trial violated his constitutional right to

a speedy trial. The Government counters that Reyes's

constitutional claim -- though not waived as a result of Reyes's

failure to raise it below -- is nevertheless meritless, and we

agree.

The Sixth Amendment provides, in relevant part, that

"[i]n all criminal prosecutions, the accused shall enjoy the right

to a speedy and public trial." U.S. Const. amend. VI. "[T]he

seminal Supreme Court case interpreting this directive," Barker v.

Wingo, supplies a "quadripartite balancing test for use in

evaluating potential speedy trial violations" under which courts

must consider the: (i) length of delay; (ii) reason for the delay;

(iii) defendant's assertion of his right; and (iv) prejudice to

the defendant. RaShad v. Walsh, 300 F.3d 27, 33-34 (1st Cir.

2002) (discussing Barker v. Wingo, 407 U.S. 514, 530-33 (1972)).

No single factor is dispositive, Barker, 407 U.S. at 533, but

rather courts must weigh the factors "on a case-by-case basis

'together with such other circumstances as may be relevant,'"

United States v. Mala, 7 F.3d 1058, 1061 (1st Cir. 1993) (quoting

Barker, 407 U.S. at 533).

While a defendant "does have some responsibility to

assert his speedy trial claim," United States v. Perez-Cubertier,

- 51 -
958 F.3d 81, 91 (1st Cir. 2020), (citing Look v. Amaral, 725 F.2d

4, 6-7 (1st Cir. 1984)), cert. denied, 141 S. Ct. 349 (2020), "a

defendant who fails to demand a speedy trial" under the Sixth

Amendment does not "forever waive[] his right," Barker, 407 U.S.

at 528. Instead, a "defendant's assertion of or failure to assert

his right to a speedy trial is one of the factors to be considered"

under the quadripartite inquiry, id., with a "failure to assert

the right [making] it difficult for a defendant to prove that he

was denied a speedy trial," id. at 532.

Applying the quadripartite balancing test, we find no

violation of Reyes's constitutional right to a speedy trial.

a. Length of Delay.

The first factor concerning the length of the delay

between arrest or indictment, on the one hand, and the date of

trial, on the other hand, weighs slightly in Reyes's favor. This

factor serves as a "triggering mechanism," meaning that "[u]ntil

there is some delay which is presumptively prejudicial, there is

no necessity for inquiry into the other factors." Barker, 407

U.S. at 530. "While '[t]here is no bright-line time limit dividing

the lengths that trigger further Barker inquiry from those that do

not,' a '[d]elay of around one year is considered presumptively

prejudicial.'" United States v. Handa, 892 F.3d 95, 102 (1st Cir.

2018) (alterations in original) (quoting United States v.

Irizarry-Colón, 848 F.3d 61, 68 (1st Cir. 2017)). Thus, we find

- 52 -
that the twenty-six-month delay between Reyes's arrest and trial

is sufficient to trigger further Sixth Amendment review. See

United States v. Lara, 970 F.3d 68, 82-83 (1st Cir. 2020) (finding

no speedy trial right violation despite delay of eighteen months

after weighing the factors in toto), cert. denied sub. nom Williams

v. United States, 141 S. Ct. 2821 (2021); see also United States

v. Muñoz-Franco, 487 F.3d 25, 60-62 (1st Cir. 2007) (finding no

speedy trial right violation despite delay of five years between

indictment and trial after weighing the factors in toto).

b. Reason for the delay.

The second factor -- our "focal inquiry" concerning the

explanation for the delay, Muñoz-Franco, 487 F.3d at 60 (quoting

United States v. Santiago-Becerril, 130 F.3d 11, 22 (1st Cir.

1997)) -- weighs against Reyes. The Supreme Court has instructed

that "different weights should be assigned to different reasons"

offered to explain the delay between arrest or indictment and

trial. Barker, 407 U.S. at 531. For example, "deliberate

attempt[s] to delay the trial in order to hamper the defense should

be weighted heavily against the government," id.; whereas, "to the

extent that valid reasons cause delay," or the "delay . . . is

caused by the defendant," it "does not count against the state at

all," RaShad, 300 F.3d at 34. The defendant bears the burden of

proving bad faith or inefficiency on the part of the government in

causing the delay. See, e.g., Lara, 970 F.3d at 82 (finding the

- 53 -
"second factor point[ed] against . . . a speedy trial violation"

where the defendant "d[id] not identify any evidence that the delay

was a product of bad faith or inefficiency on the government's

part").

Here, because Reyes has produced no evidence of bad faith

on the part of the government -- and in fact has only highlighted

valid actions that justified an appropriate delay -- the second

factor weighs against him. In his pro se appeal brief, Reyes

raises the fact that the district court granted fifteen

continuances of his trial over the span of twenty-six months.

However, the Government counters -- and a review of the case

filings cited by Reyes confirms -- that "Reyes caused or expressly

assented to nearly all, if not literally all, of the delay." For

example, in the time between Reyes's arrest and trial, Reyes asked

for more time both for discovery and to file his pre-trial motions,

as well as filed a pre-trial motion to suppress that took over six

months to resolve. Because the Supreme Court has declined to find

speedy trial violations where the defense failed to object to

continuances, see, e.g., Barker, 407 U.S. at 536, and we have

declined where the defense significantly contributed to the delay

through filing its own requests for continuances or pretrial

motions, see, e.g., Muñoz-Franco, 487 F.3d at 60-61, here too, we

do not find government action suggestive of a violation. The

second factor, thus, weighs against Reyes.

- 54 -
 c. Defendant's Assertion of His Right.

As previously discussed, "[a]lthough a defendant does

not waive his constitutional right to a speedy trial by failing to

assert it" prior to trial, "his failure to do so means that he

must make a much stronger showing on the other factors in order to

succeed in his claim." RaShad, 300 F.3d at 34 (citing Barker, 407

U.S. at 532). Here, Reyes did not raise a constitutional speedy

trial claim below, which "significantly undermines [his] claim."

Perez-Cubertier, 958 F.3d at 91.

d. Prejudice to the Defendant.

Reyes also fails to prove that he has suffered cognizable

prejudice as a result of the delay. The prejudice prong seeks to

protect three interests: "(i) to prevent oppressive pretrial

incarceration; (ii) to minimize anxiety and concern of the accused;

and (iii) to limit the possibility that the defense will be

impaired." Barker, 407 U.S. at 532. "Of these, the most serious

is the last, because the inability of a defendant adequately to

prepare his case skews the fairness of the entire system." Id.

"[T]he defendant bears the burden of alleging and proving specific

ways in which the delay attributable to the [government] unfairly

compromised his ability to defend himself." RaShad, 300 F.3d at

34 (citing United States v. Aguirre, 994 F.2d 1454, 1455 (9th Cir.

1993)).

- 55 -
 Reyes has not carried this burden. Reyes alleges only

the third kind of prejudice pertaining to impairment of the

defense; specifically, Reyes contends that the prosecution "gained

a tactical advantage" via the twenty-six-month delay between his

arrest and trial because the Government ostensibly used that time

to "coach" Trooper Lynch on a narrative that would make the traffic

stop of Reyes appear to be constitutional. By contrast, the

Government maintains that Reyes's claim of prejudice is

unsupported and illogical given that Reyes and his counsel caused

much of the delay. We agree with the Government.

Although Reyes claims that differences exist in Trooper

Lynch's original statement on the traffic stop as compared to his

second statement taken seventeen months later, he provides no

explanation as to why Trooper Lynch's original statement would not

support the constitutionality of the traffic stop, while his second

statement would; put simply, Reyes has not explained how any

differences in Trooper Lynch's statements conferred a tactical

advantage to the Government. Moreover, Reyes's assessment of the

Government's motive is entirely speculative. Because we have

declined to credit speculation in the past, see, e.g., United

States v. Souza, 749 F.3d 74, 83 (1st Cir. 2014) ("Though Souza

speculates about prejudice, he points to nothing in the eighteen-

month period between his arrest and trial that impaired his ability

to mount a defense."), here too, Reyes has not carried his burden

- 56 -
in proving prejudice attributable to delay. The fourth factor,

thus, weighs against Reyes.

Having weighed all four of the Barker factors, we find

no violation of Reyes's right to a speedy trial under the Sixth

Amendment. We, therefore, decline Reyes's request to vacate his

conviction and sentence and to order a new trial.

D. Presence Claims

Finally, Reyes argues pro se that his absence at pre-

trial proceedings on October 11, 2016, April 4, 2017, and August 7,

2017, violated Fed. R. Crim. P. 43(a), the Fifth Amendment's Due

Process Clause, and the Sixth Amendment's Confrontation Clause

such that his conviction and sentence should be reversed and a new

trial ordered. The Government maintains that Reyes's claims have

"no legal basis." Because Reyes did not object to his absence

below, we review each of these claims for plain error; that is,

Reyes "must show, among other things, both that any error was clear

or obvious and that it affected his substantial rights." United

States v. Karmue, 841 F.3d 24, 27 (1st Cir. 2016) (citing United

States v. Savarese, 686 F.3d 1, 12 (1st Cir. 2012)) (applying plain

error review to claims under Fed. R. Crim. P. 43(a) and the Fifth

Amendment's Due Process Clause raised for the first time on

appeal); United States v. Acevedo-Maldonado, 696 F.3d 150, 155-56

(1st Cir. 2012) (same for unpreserved Confrontation Clause

objections). We find no plain error.

- 57 -
 1. Fed. R. Crim. P. 43(a)(1) Claim

Reyes's statutory claim has no legal basis and fails.

Fed. R. Crim. P. 43 provides that a "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," Fed. R. Crim. P. 43(a)); the

rule further states "a defendant need not be present when '[t]he

proceeding involves only a conference or hearing on a question of

law,'" United States v. Veloz, 948 F.3d 418, 434 n.4 (1st Cir.

2020) (alteration in original) (quoting Fed. R. Crim. P. 43(b)(3));

see also Karmue, 841 F.3d at 28 (holding no clear or obvious

violation of Rule 43 where defendant was not present at pretrial

Daubert hearing). In Reyes's case, a review of the relevant case

filings reveals that the contested pre-trial proceedings from

which Reyes was absent were status conferences to discuss discovery

and scheduling. We, thus, find that Fed. R. Crim. P. 43 did not

require Reyes to be present, and Reyes has not established that

proceeding at these pre-trial hearings without him present

constituted a clear or obvious error.

2. Fifth Amendment Claim

We, likewise, reject Reyes's presence claim lodged under

the Fifth Amendment. The Due Process Clause of the Fifth Amendment

"requires that a defendant be allowed to be present 'to the extent

that a fair and just hearing would be thwarted by his absence,'"

- 58 -
Veloz, 948 F.3d at 435 (quoting Kentucky v. Stincer, 482 U.S. 730,

745 (1987)); "whenever [a defendant's] presence has a relation,

reasonably substantial, to the fulness of his opportunity to defend

against the charge," he has a due process right to be present at

the proceedings, United States v. Gagnon, 470 U.S. 522, 526 (1985)

(quoting Snyder v. Massachusetts, 291 U.S. 97, 105-106 (1934))

(rejecting claim of due process violation where in camera

discussion at trial did not include respondent). Here, "[i]t is

not clear or obvious . . . what the benefit of [Reyes]'s presence"

at the contested pre-trial status conferences would have been.

Karmue, 841 F.3d at 27. Because Reyes has not demonstrated that

his "absence 'affected [his] substantial rights, which in the

ordinary case means it affected the outcome of the district court

proceedings,'" id. (alteration in original) (quoting United States

v. Fernández–Hernández, 652 F.3d 56, 64 (1st Cir. 2011)), Reyes

has not shown any error -- obvious or otherwise -- and his Fifth

Amendment claim also fails.

3. Sixth Amendment Claim

Finally, Reyes's Sixth Amendment claim is inapposite.

The Sixth Amendment's Confrontation Clause provides that "[i]n all

criminal prosecutions, the accused shall enjoy the right . . . to

be confronted with the witnesses against him." U.S. Const.

amend. VI. The Confrontation Clause "has historically applied to

testimony elicited at, and evidence produced for, trial," United

- 59 -
States v. Mitchell-Hunter, 663 F.3d 45, 51 (1st Cir. 2011), and we

-- and the Supreme Court -- have thus far declined to extend the

reach of the Confrontation Clause beyond trial, see, e.g., id. at

50-53 (noting that defendant "d[id] not point to a single case

extending the right to confrontation beyond the context of trial");

see also Crawford v. Washington, 541 U.S. 36, 53–56 (2004)

(extending right to confrontation only to declarants whose

statements are offered at trial). Reyes's presence claims concern

only his absence at pre-trial proceedings and he offers no

arguments as to why we should extend the reach of the Confrontation

Clause beyond trial in this case. Moreover, even if we were to

extend the right to confrontation here, such a right would be

inapplicable as Reyes points to no evidence that was offered

against him at these proceedings; indeed, such pre-trial status

conferences would not present an opportunity to do so. Here too,

Reyes has failed to show plain error.

Accordingly, we decline to reverse Reyes's conviction

and sentence and to order a new trial because he was not present

at three of the pre-trial court dates.

III. Conclusion

For the reasons stated above, the judgment of conviction

is affirmed.

- 60 -