United States v. Benjamin-Hernandez

United States Court of Appeals
For the First Circuit

No. 20-1236

UNITED STATES OF AMERICA,

Appellee,

v.

EDILIO BENJAMIN-HERNANDEZ,

Defendant, Appellant.

No. 20-1295

UNITED STATES OF AMERICA,

Appellee,

v.

JOHANNI BALBUENA-HERNANDEZ,

Defendant, Appellant.

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

[Hon. Jay A. Garcia-Gregory, U.S. District Judge]

Before

Kayatta and Howard, Circuit Judges,
and Casper, District Judge.*

* Of the District of Massachusetts, sitting by designation.
 Mariángela Tirado-Vales for appellant Edilio Benjamin-
Hernandez.
German A. Rieckehoff for appellant Johanni Balbuena-
Hernandez.
Julia M. Meconiates, Assistant United States Attorney, with
whom W. Stephen Muldrow, United States Attorney, and Mariana E.
Bauzá-Almonte, Assistant United States Attorney, were on brief,
for appellee.

September 21, 2022

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 HOWARD, Circuit Judge. Following a lengthy period of

pretrial detention, appellants Edilio Benjamin-Hernandez

(Benjamin) and Johanni Balbuena-Hernandez (Balbuena) were

convicted on multiple charges stemming from a conspiracy to

transport cocaine from the Dominican Republic to Puerto Rico. They

now argue that the district court should have dismissed the

indictment against them and that the evidence presented at trial

cannot sustain their convictions. Benjamin also lodges two

evidentiary challenges. But their panoply of claims falls short,

and we affirm their convictions.

I.

Benjamin and Balbuena were first indicted in November

2015 on multiple charges of conspiracy and importation of

controlled substances. Following hearings in December, both were

detained pending trial. Superseding indictments adding new co-

defendants followed in March and July of 2016.

The parties engaged in extensive motion practice, with

Benjamin and Balbuena together filing more than forty pretrial

motions. Balbuena eventually filed over two years later a motion

to dismiss the indictment based on alleged violations of both the

Speedy Trial Act ("STA") and the Sixth Amendment. Benjamin joined

this motion, which the court denied, finding no STA or

constitutional violation in the length of the challenged period of

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detention. In June 2018, the court set Benjamin and Balbuena's

cases for joint trial the following October.

During the four-day trial, the government presented

evidence supporting its theory that Benjamin and Balbuena had

transported drugs from the Dominican Republic aboard a yawl, which

they ultimately abandoned near the shore in Vega Baja, Puerto Rico,

when detected by local law enforcement. A jury convicted Benjamin

and Balbuena of conspiracy to possess with intent to distribute at

least five kilograms of cocaine, and of aiding and abetting the

importation of at least five kilograms of cocaine.1 Following the

verdict, Benjamin and Balbuena each filed renewed motions for

acquittal pursuant to Federal Rule of Criminal Procedure 29(c),

which the court denied.

On appeal, Balbuena, joined by Benjamin, challenges the

district court's denial of their motion to dismiss. Balbuena and

Benjamin also argue that the evidence presented at trial was

insufficient to support their convictions. In addition, Benjamin

raises two evidentiary challenges. We address each claim in turn.

1 The jury also convicted Benjamin of improper entry as a
noncitizen and Balbuena of unlawful reentry as a removed
noncitizen. Neither appellant challenges these convictions on
appeal.
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 II.

A. Speedy Trial Act

"The STA provides generally that, upon motion, an

indictment must be dismissed if the defendant's trial has not

commenced within 70 days from the latter of the return of the

indictment or the defendant's first appearance before a judicial

officer." United States v. Gates, 709 F.3d 58, 64 (1st Cir. 2013)

(citing 18 U.S.C. § 3161(c)(1)). But "[t]his 70-day limit is not

absolute," and certain periods of time may be excluded. Id.

(citing 18 U.S.C. § 3161(h)). "If a defendant is not brought to

trial" within the required time limit, "the information or

indictment shall be dismissed on motion of the defendant."

18 U.S.C. § 3162(a)(2).

Typically, we review a "denial of a statutory speedy

trial claim de novo as to legal rulings, and for clear error as to

factual findings." United States v. Irizarry-Colón, 848 F.3d 61,

65 (1st Cir. 2017) (quoting United States v. Carpenter, 781 F.3d

599, 616 (1st Cir. 2015)). But "a defendant can waive or forfeit

a claim of error in the application of the Act by failing to timely

raise the claim in the district court," thereby limiting our

review. United States v. Gottesfeld, 18 F.4th 1, 6 (1st Cir. 2021)

(citing United States v. Valdivia, 680 F.3d 33, 41 (1st Cir.

2012)), pet. for cert. filed, No. 21-1313 (U.S. Apr. 1, 2022).

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 Balbuena argues that his initial appearance on

November 23, 2015, started the seventy-day clock, which ran until

he filed his motion to dismiss on March 6, 2018. This totaled 834

days, "of which only 503 days were properly excluded." But

Balbuena's claim hits a threshold problem: his motion before the

district court challenged only the period between his initial

appearance on November 23, 2015, and May 4, 2016, the day that the

case was transferred to a new judge following the original judge’s

retirement. "[W]e do not go hunting for nonexcludable time;

exclusions of time not specifically challenged in the district

court are waived on appeal." United States v. Laureano-Pérez, 797

F.3d 45, 57 (1st Cir. 2015) (citing Gates, 709 F.3d at 67-68); see

United States v. Souza, 749 F.3d 74, 81 (1st Cir. 2014). We thus

limit our analysis of Balbuena's challenge to the specific

timeframe that he raised before the district court.

The STA excludes "reasonable period[s] of delay when the

defendant is joined for trial with a codefendant as to whom the

time for trial has not run and no motion for severance has been

granted." United States v. Casas, 425 F.3d 23, 31 (1st Cir. 2005)

(alteration in original) (quoting 18 U.S.C. § 3161(h)(6)). "The

Supreme Court has interpreted this section to mean that the clock

does not, in effect, begin to run until the date of the most recent

defendant's initial appearance before the court." Id. (citing

Henderson v. United States, 476 U.S. 321, 323 n.2 (1986)); see

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also United States v. Barnes, 251 F.3d 251, 257 (1st Cir. 2001)

("[T]he time line for the last defendant joined usually becomes

the time line for all defendants."). Here, defendants were

indicted in a second superseding indictment on July 20, 2016, which

also charged several new co-defendants. Accordingly, the district

court found that "the 70-day clock remained tolled until at least

the last co-[d]efendant's triggering event, namely [the last co-

defendant's] arraignment on February 1, 2017." This meant that

"there was no violation of the STA’s 70-day limit" within the time

frame challenged by Balbuena because the clock effectively did not

start until February 2017.

Balbuena now argues that "he was not 'joined for trial'

within the meaning" of the STA with the co-defendants added in the

second superseding indictment because, ultimately, he was tried

with only Benjamin. Balbuena also argues that the district court

failed to make a reasonableness finding before concluding that the

second superseding indictment tolled the clock. But Balbuena

failed to preserve these arguments because he did not raise them

before the district court. See Rockwood v. SKF USA Inc., 687 F.3d

1, 9 (1st Cir. 2012) ("Our case law is clear that 'arguments not

raised in the district court cannot be raised for the first time

on appeal.'" (quoting Sierra Club v. Wagner, 555 F.3d 21, 26 (1st

Cir. 2009))). At most, we can review for plain error, see

Gottesfeld, 18 F.4th at 5-6, but Balbuena "makes no attempt to

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show how his . . . claim[s] satisf[y] the demanding plain-error

standard -- his brief fails to even mention plain error, let alone

argue for its application here." United States v. Cruz-Ramos, 987

F.3d 27, 40 (1st Cir. 2021).2 That failure definitively waives

these arguments and denies us the opportunity to consider them

further.

B. Sixth Amendment Violation

When the government violates a criminal defendant's

Sixth Amendment "right to a speedy and public trial[,]" the

criminal charges against the defendant "must be dismissed." United

States v. Lara, 970 F.3d 68, 80 (1st Cir. 2020) (first quoting

U.S. Const. amend. VI and then quoting United States v. Dowdell,

595 F.3d 50, 60 (1st Cir. 2010)), cert. denied sub nom. Williams

v. United States, 141 S. Ct. 2821 (2021). "To assess whether a

defendant's Sixth Amendment right has been violated, we consider

four factors: (1) 'the length of delay'; (2) 'the reason assigned

by the government for the delay'; (3) 'the defendant's

responsibility to assert his right'; and (4) 'prejudice to the

defendant, particularly "to limit the possibility that the defense

2It may be possible that, in the context of the STA, arguments
not raised before the district court are waived on appeal, rather
than forfeited, thereby preventing even plain error review. See
Valdivia, 680 F.3d at 41; Gottesfeld, 18 F.4th at 5-6. But,
because Balbuena has waived plain error review, the present case
does not require resolution of that question.
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will be impaired."'" Id. (quoting United States v. Handa, 892

F.3d 95, 101 (1st Cir. 2018)).

We typically apply the abuse of discretion standard to

a district court's resolution of a defendant's motion to dismiss

based on a Sixth Amendment violation. See United States v.

Maldonado-Peña, 4 F.4th 1, 15 (1st Cir. 2021). But "there is some

debate about whether" this is the appropriate standard, and

Balbuena asserts that we should review his constitutional claim de

novo. Id. at 15, n.6. Since, for the reasons discussed below,

Balbuena's claim fails under either standard, we may sidestep this

issue for now.

Considering the first factor, "[d]elays of around a year

or longer are presumptively prejudicial," and the district court

correctly found that the roughly thirty-three month delay that

Balbuena and Benjamin experienced weighed in their favor. Lara,

970 F.3d at 81.3

The "second factor concerns the explanation for the

delay" and is the focal point of our inquiry. Id. at 82 (quoting

Souza, 749 F.3d at 82). The district court found that the second

factor "weigh[ed] heavily against Defendants" given the complexity

of the case, numerous pretrial motions (including 43 filed by

3 The district court denied the motion to dismiss in late
August 2018 and the appellants' trial began roughly a month and a
half later, bringing the total delay between their arrest and trial
to approximately thirty-four and a half months.
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Balbuena and Hernandez), lack of any evidence indicating bad faith

by the government, and circumstances out of the parties' control,

including the Hurricane Maria natural disaster and the

unavailability of Balbuena's first counsel due to illness. We

agree that the reasons for the delay described by the district

court, which the record supports, "weigh against a finding of [a]

Sixth Amendment violation." Casas, 425 F.3d at 34; see id. at 33-

34 (noting defendants' filing of numerous pretrial motions and

lack of allegations of bad faith by the government, and explaining

that "the joint prosecution of defendants involved in the same

drug trafficking conspiracy is justified as a means of serving the

efficient administration of justice"); see also Lara, 970 F.3d at

82 (explaining that lack of "evidence that the delay was a product

of bad faith or inefficiency on the government's part" weighed

against finding a Sixth Amendment violation); United States v.

Worthy, 772 F.3d 42, 49 (1st Cir. 2014) (holding that delay

attributable to "the number of defendants, the multiplicity of

motions and events . . . , and the complexity of the case" did not

violate the Sixth Amendment).

As for the third factor, the district court correctly

found that the undisputed fact that defendants had asserted their

speedy trial right on multiple occasions weighed in their favor.

See Casas, 425 F.3d at 34.

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 Turning to the final factor, the court explained that

defendants had not demonstrated "undue pressures" aside from their

lengthy period of detention. "[W]e have previously 'recognized

three types of prejudice: "oppressive pretrial incarceration,

anxiety and concern of the accused, and the possibility that the

accused's defense will be impaired by dimming memories and loss of

exculpatory evidence."'" Maldonado-Peña, 4 F.4th at 17 (quoting

Lara, 970 F.3d at 82-83). Balbuena asserts that during his

pretrial detention his "anxiety reached such levels that he became

antagonistic and upset" and he "lost faith in his attorney."

Balbuena further argues that he was taken "away from his family

and country and deprived of the opportunity to work" and "was

forced to endure the terrible conditions resulting from Hurricane

Maria while deprived of his liberty." We do not doubt the

challenging nature of Balbuena's time in pretrial detention,

particularly during Hurricane Maria. But Balbuena has not

identified "undue pressures" that go "above and beyond the

'considerable anxiety [that] normally attends the initiation and

pendency of criminal charges,' as [is] necessary to show

prejudice." Worthy, 772 F.3d at 49 (first alteration in original)

(quoting United States v. Maxwell, 351 F.3d 35, 41 (1st Cir.

2003)); see also Carpenter, 781 F.3d at 615 ("While [defendant]

argues convincingly that he has suffered great stress throughout

the proceedings, he does not demonstrate why his anxiety was

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greater than that suffered by many other defendants, other than

that it continued longer." (citing United States v. Colombo, 852

F.2d 19, 26 (1st Cir. 1988))).

Balbuena also argues that the length of his detention

alone renders it presumptively prejudicial. Balbuena did not

clearly raise this argument before the district court and thus

likely waived it. See Arrieta-Gimenez v. Arrieta-Negron, 859 F.2d

1033, 1037 (1st Cir. 1988). In any event, his argument falls

short. Balbuena cites Doggett v. United States, 505 U.S. 647

(1992), and our opinion in RaShad v. Walsh, 300 F.3d 27 (1st Cir.

2002). But the delays in those cases were significantly longer

than the one here. See Doggett, 505 U.S. at 650 (eight and a half

years between indictment and arrest); RaShad, 300 F.3d at 36 (five

years and eight months delay between indictment and trial). In

RaShad, moreover, we noted "that the presumption is [n]either

automatic or inexorable" but rather kicks in only "[i]n aggravated

cases, involving grossly excessive delay." 300 F.3d at 34, 42.

And we have repeatedly looked for actual prejudice in cases where

the delay exceeded the length of the delay here. See, e.g.,

Maldonado-Peña, 4 F.4th at 18. We therefore decline to depart

from the "general rule" that "the 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.

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 Applying that general rule, the district court concluded

that Balbuena and Benjamin's "lengthy pretrial detention [gave]

cause for concern," but nevertheless found that the balance of the

factors did not show that appellants' speedy trial rights had been

violated. The district court's observation that the length of

their pretrial detentions was concerning cannot be gainsaid. The

length of time the defendants spent in detention while awaiting

trial is deeply unsettling. No one should assume that, in the

proper case, with a defendant alert to his rights, this or any

other of our cases countenance a holding that the Constitution

accepts pretrial detention of virtually any length for people

waiting to have their day in court. Cf. Maldonado-Peña, 4 F.4th

at 18–19 (explaining this court's concern with the government's

practice of "monolithically process[ing] 'mega-cases'" that result

in some defendants -- presumed innocent -- waiting incarcerated

for years while the trial court resolves codefendants' pleas and

motions); Shon Hopwood, The Not So Speedy Trial Act, 89 Wash. L.

Rev. 709, 739 (2014) (arguing that "[d]elay is a federal

prosecutor's friend" because it increases "the chance a prosecutor

has to flip a co-defendant into a cooperating witness").

But the district court's ultimate conclusion here falls

within the limits permitted by our cases, and the absence of both

bad faith on the part of the government and particularized

prejudice to the appellants persuades us that no Sixth Amendment

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violation occurred here. See, e.g., Maldonado-Peña, 4 F.4th at 18

(explaining that "defendants' five-year wait for trial" was

gravely concerning but nevertheless did not violate the Sixth

Amendment where it was counterbalanced by defendants'

"contributions to the pretrial delays" and failure to show "how

their ability to mount an adequate defense was hampered by the

delay"); Casas, 425 F.3d at 36 (holding that forty-one months in

pretrial detention did not violate the Sixth Amendment given "the

large and complex nature of the proceedings and the district

court’s obligation to consider the multitude of pretrial matters

filed by appellants and their co-defendants").

C. Sufficiency challenges

Balbuena and Benjamin next challenge the sufficiency of

the evidence supporting their convictions. We review de novo the

denial of a Rule 29 motion for judgment of acquittal. United

States v. Gaudet, 933 F.3d 11, 15 (2019). "[W]e must affirm unless

the evidence, viewed in the light most favorable to the government,

could not have persuaded any trier of fact of the defendant's guilt

beyond a reasonable doubt." Id. (alteration in original)(quoting

United States v. Gómez-Encarnación, 885 F.3d 52, 55 (1st Cir.

2018)); see also United States v. Davila-Nieves, 670 F.3d 1, 7

(1st Cir. 2012).

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 1. Evidence in the record defeats Balbuena's sufficiency
claim
Balbuena acknowledges the following evidence against

him: 1) that he was "found in the general vicinity of the vessel

and controlled substances," specifically in an abandoned, wooded

area, where he was found wet, sandy, and agitated; 2) Balbuena's

statement to a DEA agent that he was "there to pick up . . . the

stuff you have there," which the agent took as a reference to the

cocaine that the agents had seized; and 3) the testimony of a

cooperating coconspirator who stated that Balbuena was present

when he dropped off five kilograms of cocaine that the

coconspirator understood was to be transported to Puerto Rico in

a vessel, and which he later heard arrived in Puerto Rico but was

"abandoned" near Vega Baja. This evidence notwithstanding,

Balbuena argues that "there simply was no evidence that he ever

participated in the planning of the drug transfer or importation"

or "that he was in the presence of drugs," and therefore "the

government cannot possibly establish that [he] ever had

constructive or knowing possession of the cocaine."

Balbuena "undervalues the evidence against him." United

States v. Meises, 645 F.3d 5, 12 (1st Cir. 2011). Without even

considering any of the numerous additional pieces of evidence that

the government identifies, the evidence acknowledged by Balbuena

himself is enough to sustain his convictions. See, e.g., United

States v. Ríos-Ortiz, 708 F.3d 310, 316 (1st Cir. 2013) (finding

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evidence that defendant prepared food delivery orders for prison

which were found to contain drugs was sufficient "circumstantial

evidence to demonstrate the existence of an agreement to distribute

controlled substances"); Meises, 645 F.3d at 12 ("The testimony of

a single witness can be enough to support the government's case,

and even the uncorroborated testimony of an informant may suffice

'to establish the facts underlying a defendant's conviction.'"

(internal citations omitted)).

When the evidence is viewed in the light most favorable

to the verdict, this is not, as Balbuena argues, a mere presence

case. See, e.g., United States v. Rodriguez-Martinez, 778 F.3d

367, 371 (1st Cir. 2015) ("We have said repeatedly that mere

presence alone 'is insufficient to prove knowing possession of

narcotics.'" (quoting United States v. Martinez, 922 F.2d 914, 923

(1st Cir. 1991))). Rather, all three pieces of evidence "support

the inference" that Balbuena "had knowledge of the crime." Id.

Balbuena's sufficiency claim thus fails.

2. Benjamin waived his sufficiency claim

In his brief to this court, Benjamin begins his

sufficiency argument by summarizing the government's evidence. He

then states that "[a]s it will be argued in the next section,

[this] evidence . . . is insufficient to support and sustain the

conviction." But the next section of Benjamin's brief discusses

the district court's alleged evidentiary errors, and Benjamin

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never returns to his sufficiency argument. By failing to develop

this argument, Benjamin has waived it. See Acevedo-Garcia v.

Monroig, 351 F.3d 547, 561 (1st Cir. 2003).4

D. Evidentiary challenges

Finally, Benjamin argues that the district court made

two evidentiary errors: a) admitting unauthenticated telephone

recordings, and b) allowing inappropriate opinion testimony by

Agent Irvin Robert García-Martínez, a law enforcement agent with

the National Directorate of Drug Control in the Dominican Republic.

We review preserved objections to evidentiary rulings for abuse of

discretion. United States v. Kilmartin, 944 F.3d 315, 335 (1st

Cir. 2019). Unpreserved objections receive plain error review,

"which is -- by design -- extremely hard to establish." United

States v. Galíndez, 999 F.3d 60, 65 (1st Cir. 2021); see also

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

Benjamin raises his argument about the authentication of

the telephone recordings for the first time on appeal. Our review

is thus limited to plain error. But Benjamin does not argue plain

error; "he does not anywhere cite the four-factor test or attempt

4 A generous reading of Benjamin's brief could take this
section to mean that, without the telephone recordings and opinion
testimony that Benjamin challenges later in his brief, the
government's evidence is insufficient to support his conviction.
But even taking that evidence out of the picture, Benjamin's
sufficiency challenge would fail for the same reasons that
Balbuena's fails.
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to establish its . . . factors," and has thus waived this claim.

Pabon, 819 F.3d at 34; see also Cruz-Ramos, 987 F.3d at 40.

Benjamin's objection to Agent García's testimony fares

no better. Benjamin raises "general grievances" with the testimony

but fails to identify any specific portion of it as problematic.

United States v. Belanger, 890 F.3d 13, 24 (1st Cir. 2018). In a

footnote, Benjamin does cite a five-page section of the trial

record where he objected to Agent García's testimony. Even if

this was sufficient to preserve this claim on appeal, our own

unaided review of those five pages reveals one statement that

perhaps Benjamin has in mind in alleging improper overview

testimony, where the agent testified, apparently from background

knowledge of the investigation, that Benjamin had used a different

phone number not identified by law enforcement to contact another

person about a proposal to act as drug courier. But, as the

government notes, any error in permitting this testimony was

clearly harmless given the evidence against Benjamin. See United

States v. Flores-de-Jesús, 569 F.3d 8, 27 (1st Cir. 2009) ("The

admission of improper testimony is harmless if it is 'highly

probable that the error did not influence the verdict.'" (quoting

United States v. Casas, 356 F.3d 104, 121 (1st Cir. 2004))).5

5 Threaded into Benjamin's discussion of Agent García's
testimony are statements that 1) Agent García's testimony was not
truthful, and 2) Agent García's testimony was "an attempt by the
government to bolster the credibility of" a cooperating
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 III.

For the foregoing reasons, Benjamin and Balbuena's

convictions are affirmed.

codefendant who testified after Agent García. To the extent that
these statements can be considered additional claims outside of
Benjamin's general objection to Agent García's overview testimony,
they are waived for lack of development. See Acevedo-Garcia, 351
F.3d at 561.

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