United States Court of Appeals
`For the First Circuit
`
`
`
`
`No. 20-2129
`
`
`
`No. 20-2183
`
`UNITED STATES,
`
`Appellee,
`
`v.
`
`ALEXANDRIA ANDINO-RODRÍGUEZ,
`
`Defendant, Appellant.
`
`
`
`UNITED STATES,
`
`Appellee,
`
`v.
`
`KATERIN MARTÍNEZ-ALBERTO,
`
`Defendant, Appellant.
`
`
`
`
`
`
`
`
`
`APPEAL FROM THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF PUERTO RICO
`
`[Hon. Francisco A. Besosa, U.S. District Judge]
`
`
`
`Before
`
`Kayatta, Lynch, and Thompson,
`Circuit Judges.
`
`
`Juan F. Matos-De Juan for appellant Andino-Rodríguez.
`Tina Schneider for appellant Martínez-Alberto.
`
`
`
`
`For the First Circuit
`
`
`
`
`No. 20-2129
`
`
`
`No. 20-2183
`
`UNITED STATES,
`
`Appellee,
`
`v.
`
`ALEXANDRIA ANDINO-RODRÍGUEZ,
`
`Defendant, Appellant.
`
`
`
`UNITED STATES,
`
`Appellee,
`
`v.
`
`KATERIN MARTÍNEZ-ALBERTO,
`
`Defendant, Appellant.
`
`
`
`
`
`
`
`
`
`APPEAL FROM THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF PUERTO RICO
`
`[Hon. Francisco A. Besosa, U.S. District Judge]
`
`
`
`Before
`
`Kayatta, Lynch, and Thompson,
`Circuit Judges.
`
`
`Juan F. Matos-De Juan for appellant Andino-Rodríguez.
`Tina Schneider for appellant Martínez-Alberto.
`
`
`
`
`
`Jonathan E. Jacobson, with whom W. Stephen Muldrow, United
`States Attorney, Mariana E. Bauzá-Almonte, Assistant United States
`Attorney, Chief, Appellate Division, and Julia M. Meconiates,
`Assistant United States Attorney, were on brief, for appellee.
`
`
`
`
`
`August 21, 2023
`
`
`
`
`
`
`THOMPSON, Circuit Judge. Experience has taught us drugs
`
`are trafficked in many ways, with drug runners using assorted
`
`transportation methods and various concealment techniques to move
`
`their narcotics. Today's drug-trafficking case comes by sea, via
`
`the Black Wolfpack, a boat that ferried cocaine smugglers and their
`
`product between Caribbean islands. Specifically, the players in
`
`this scheme undertook voyages from Puerto Rico to St. Thomas to
`
`acquire and package bricks of cocaine for transport back to Puerto
`
`Rico, where they would then receive compensation for their efforts.
`
`That came to an end in January 2018, though, when federal agents
`
`intercepted the Black Wolfpack off the coast of St. Thomas and,
`
`with it, four of the trafficking enterprise's participants.
`
`What resulted was a multi-defendant indictment charging
`
`drug conspiracy crimes. While four co-conspirators entered guilty
`
`pleas, our appellants -- co-defendants Katerin Martínez-Alberto
`
`("Martínez") and Alexandria Andino-Rodríguez ("Andino") -- each
`
`exercised their trial rights. Following a joint eight-day jury
`
`trial, both were convicted for their roles in the trafficking
`
`venture.
`
`Now, in these consolidated appeals, Martínez and Andino,
`
`alleging trial and sentencing errors, ask us to reverse what
`
`happened below. But for reasons we'll explain, we affirm in toto.
`
`- 3 -
`
`
`
`BACKGROUND
`
`Facts
`
`Drawing from the record to tell this tale -- and doing
`
`so in the light most favorable to the jury's verdict, see, e.g.,
`
`United States v. Ciresi, 697 F.3d 19, 23 (1st Cir. 2012) (citing
`
`United States v. Mitchell, 596 F.3d 18, 20 n.1 (1st Cir.
`
`2010)) -- we begin by laying out the facts of the drug-trafficking
`
`scheme in which our appellants were embroiled, providing a good
`
`bit of saga up front in order to facilitate the gentle reader's
`
`understanding of how this all transpired. We will fill in more
`
`detail later, when additional factual and procedural particulars
`
`become necessary to our analysis.
`
`Back on January 27, 2018, in the Crown Bay Marina in St.
`
`Thomas, a Customs and Border Protection ("CBP") marine
`
`interdiction agent had eyes on the Black Wolfpack, a vessel
`
`suspected of trafficking drugs to and from Puerto Rico.1 Walking
`
`towards the Black Wolfpack, carrying luggage, boxes, and a cooler,
`
`were two men and two women, later identified as Maximiliano
`
`Figueroa-Benjamín ("Maximiliano"), Emiliano Figueroa-Benjamín
`
`
`1 Information had been relayed to CBP by the FBI after it
`learned from a source of information that a vessel would soon
`depart Puerto Rico for St. Thomas, pick up cocaine there, then
`return with the kilos to Puerto Rico. As a result, the CBP agent
`was called into action "to be on the lookout" that day.
`
`- 4 -
`
`
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`("Emiliano"),2 Martínez, and Andino. All aboard, the Black
`
`Wolfpack departed the St. Thomas marina towards Puerto Rico, but,
`
`about halfway through what became a hazardous return journey,3 it
`
`was intercepted and escorted back to St. Thomas by law enforcement.
`
`Over the course of their searches that day, federal
`
`agents seized from the Black Wolfpack several items, including the
`
`four individuals' identifications as well as their cell phones.4
`
`Also found and retrieved inside a hidden compartment were 55
`
`bundles of what was believed (and subsequently confirmed) to be
`
`cocaine. Two days later, agents further searched the Black
`
`Wolfpack, this time finding 56 bundles of suspected cocaine under
`
`a table bolted to the vessel's floor.5 Among the 111 total bundles
`
`seized, there were various stickers and insignia affixed to the
`
`
`2 Given these first two co-defendants have the same last name,
`we use their first names to avoid confusion, no disrespect
`intended.
`
`3 The weather that day wasn't exactly ideal for a leisure
`trip between the islands: Agents testified the waves were between
`10 and 15 feet high (some of the worst one agent had seen), forcing
`the experienced seafaring agents to debate the safety of pursuing
`the Black Wolfpack before ultimately deciding to give chase.
`
`4 Andino and Maximiliano consented to the searches of their
`phones. Martínez did not, but after the seizure of her phone from
`the arrested Black Wolfpack, federal agents extracted the
`information used by the government in its prosecution case. The
`record suggests warrants were obtained for the search of and
`extraction from each of the phones, but it is not crystal clear.
`Regardless, no one has challenged the propriety of the searches on
`appeal.
`
`5 Of the various federal agencies involved, the FBI was
`designated the seizing agency.
`
`- 5 -
`
`
`
`bricks, including stickers with crowns and $100 bills on them.
`
`All told, the total weight of the 111 cocaine bricks was 132
`
`kilograms, with a street value of $20k-22k per brick (for a grand
`
`total of more than $2 million in value).
`
`To better understand the scope of what led to this moment
`
`at sea, let us travel back to 2017 to walk through what happened
`
`over the course of the charged conspiracy. Because while January
`
`27, 2018 was the first time this group got caught, it was not their
`
`first rodeo.
`
`We introduce you to two names, new to our recounting but
`
`central to the enterprise: Bernardo Coplin-Benjamín ("Coplin")
`
`and José Javier Resto-Miranda ("Resto").6 It was Coplin who,
`
`around March of 2017, came up with the grand idea to buy a boat
`
`that would move drugs from St. Thomas to Puerto Rico, and in
`
`anticipation of that goal Coplin asked his friend and associate,
`
`
`6 With respect to Coplin, we note that he also was indicted,
`then pled guilty and was sentenced. In the wake of all that, he
`filed a timely appeal. See United States v. Coplin-Benjamin, No.
`21-1737. To be clear: We discuss Coplin here based only on the
`evidence offered at the joint trial of Martínez and Andino, and we
`do so solely for the purpose of fleshing out the trafficking scheme
`as it relates to their involvement and issues raised by them in
`this appeal. We offer no take whatsoever on the facts or merits
`of Coplin's appeal.
`
`As for Resto, the only co-conspirator to testify at
`Martínez and Andino's trial, he has an important role to play in
`our factual recitation, and he also figures prominently in one of
`the appellate issues we'll be chasing down in the pages to come.
`
`- 6 -
`
`
`
`Resto, for his help. In time, Coplin followed up and purchased a
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`boat: the Wasikoki.
`
`In preparation to set sail on their trafficking venture,
`
`Coplin and Resto did some reconnaissance. To get a read on the
`
`planned route, length of the trip, and fuel costs, Coplin asked
`
`another individual (whose identity is irrelevant here) to captain
`
`a test run. Aboard that April 2017 Wasikoki trial outing were
`
`Coplin, Andino (a close friend of Resto, who brought her into the
`
`enterprise), and Maximiliano.
`
`Thereafter, with the route settled, a basic plan was
`
`hatched: Resto, Maximiliano, Martínez (another of Resto's friends
`
`and recruits), and Andino would make a trip on the Wasikoki to St.
`
`Thomas, with the women playing the roles of "fillers" to erect a
`
`facade of two couples out on a leisure ride (Resto told them they'd
`
`be paid $3,000 apiece for their participation); the group would
`
`pick up the cocaine; and they'd return to Puerto Rico with it.
`
`Come May 2017, they headed out to sea. Upon their arrival in St.
`
`Thomas, Maximiliano picked up the cocaine from his contact there,
`
`and he and Resto stashed the vacuum-sealed and greased bundles in
`
`a hidden compartment on the Wasikoki. But then they hit a snag:
`
`The Wasikoki had technical problems. Resto (as captain on this
`
`voyage) decided the journey would have to be abandoned -- as he
`
`told his companions aboard the vessel, it wasn't worth the risk of
`
`undertaking the drug run on the Wasikoki when she was struggling
`
`- 7 -
`
`
`
`with mechanical issues and might break down. Resto gave the kilos
`
`to Maximiliano, who returned them to his contact. Emptyhanded,
`
`the Wasikoki and its crew then made the return voyage back to
`
`Puerto Rico.
`
`The Wasikoki's mechanical issues were persistent, as it
`
`turned out, so in May 2017, Resto helped Coplin acquire a new boat:
`
`the Black Wolfpack, which Resto registered in his name.
`
`In late July or early August of 2017, Resto, Maximiliano,
`
`and Andino (no Martínez this time) climbed aboard the Black
`
`Wolfpack and made another trip to Crown Bay Marina in St. Thomas
`
`to pick up cocaine. Once there, Maximiliano went to meet with the
`
`supplier while Resto and Andino went to an apartment on St. Thomas
`
`to help get the cocaine ready for its journey to Puerto Rico,
`
`including by putting the coke into packages, some of which had
`
`crowns on the seal. More on this later. For context, all the
`
`reader need file away for now is that Andino made another trip,
`
`then helped package the kilos for transport home to Puerto Rico,
`
`where, at Coplin's house, she received $7,000 for her efforts.
`
`Also worth noting now, for purposes of explaining Resto's role in
`
`all of this, is that Resto got $35,000 and complained he "thought
`
`it should be more."
`
`The Black Wolfpack set sail for St. Thomas yet again in
`
`September 2017, this time with Andino, Maximiliano, Resto, and his
`
`girlfriend (who is not a co-defendant here) aboard, and under the
`
`- 8 -
`
`
`
`pretext that they were bringing aid in the wake of Hurricane Irma.
`
`Andino again participated in preparing the cocaine for
`
`transportation, then got back aboard the Black Wolfpack to head
`
`back to Puerto Rico, where she, as before, was paid $7,000 for her
`
`efforts. Resto, again disappointed by his "unfair" payout ($20,000
`
`this time), confronted Coplin, urging that he should be paid more
`
`as captain. Coplin's response was to tell Resto "to deal with it"
`
`-- "this [was] the way that it was going to be done." Displeased
`
`and feeling like the risk/benefit balance was not "a good deal"
`
`for him, Resto then "distanced" himself from the group.
`
`A couple of months later, text messages between Martínez
`
`and Andino reflected an upcoming November 4, 2017 trip. Indeed,
`
`Crown Bay Marina paperwork bears Andino's registration of the Black
`
`Wolfpack on that same date. Further proof of that particular
`
`voyage -- telling photos. There's a November 4 selfie of Martínez
`
`and Andino that was found on Maximiliano's phone during the search
`
`following that January 27, 2018 seizure -- it shows the women
`
`aboard the Black Wolfpack with the cooler they used to transport
`
`the cocaine from its packaging site back to the vessel. And
`
`Maximiliano is in another picture from his phone -- he's steering
`
`the Black Wolfpack, and Martínez and Andino are standing in close
`
`proximity. Meanwhile, Martínez's phone contained a November 4
`
`photo showing crown-sticker and $100-bill-sticker bundles.
`
`- 9 -
`
`
`
`And St. Thomas got another November 2017 visit from the
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`Black Wolfpack, this time on the 17th. Marina registration papers
`
`for that day once more show Andino's signature, and Maximiliano's
`
`phone has a November 19 photo showing him, Andino, Martínez, and
`
`another individual at the cocaine-packaging site (an apartment)
`
`with that telltale cooler used to move the kilos (as Resto attested
`
`at trial) behind them.
`
`Fast forward to January 2018, back to the events we
`
`started with. Now, Resto had not been participating in this drug-
`
`trafficking enterprise for a few months, but he was asked to join
`
`for that January 2018 trip. He declined, instead going to Alaska,
`
`where he would renew his asbestos removal license (he'd worked in
`
`Alaska over the years, he explained at trial). Resto later learned
`
`of his four associates getting busted when Coplin called him and
`
`broke the news that Martínez, Andino, Maximiliano, and Emiliano
`
`had been arrested in St. Thomas.7
`
`Procedural History
`
`In the wake of the January 2018 seizures and arrests, a
`
`second superseding indictment ultimately issued charging Martínez,
`
`Andino, Maximiliano, and Emiliano, and later Coplin and Resto,
`
`
`7 A few weeks after that, Resto returned to Puerto Rico and
`met up with Andino, who was out on pretrial release, during which
`meeting she told Resto the January 2018 crew had actually noticed
`they were being followed as they left St. Thomas, and Andino had
`suggested they throw away their phones, but Maximiliano rejected
`that suggestion because his phone was new and had been pricey.
`
`- 10 -
`
`
`
`with conspiracy to possess with the intent to distribute a
`
`controlled substance in violation of 21 U.S.C. § 846 (Count One)
`
`and conspiracy to import controlled substances into the U.S. in
`
`violation of 21 U.S.C. § 963 (Count Two) (said conduct beginning
`
`on a date unknown, but not later than 2017, and continuing until
`
`a date unknown, but not earlier than January 27, 2018).
`
`Over time, each of Martínez and Andino's co-defendants
`
`entered guilty pleas.8 For their part, Martínez and Andino, as we
`
`noted earlier, proceeded jointly to trial, at which both defendants
`
`were found guilty9 and later sentenced (concurrent 120-month terms
`
`of imprisonment, to be followed by concurrent five-year terms of
`
`supervised release, for each defendant). Appellants timely and
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`separately appealed, and here we are.
`
`
`8 The important plea to note right off the bat is Resto's.
`As relevant to this appeal, Resto's plea included: him copping to
`conspiring with his co-defendants to distribute between 15 and 50
`kilos of cocaine; his understanding that his sentencing range would
`be no less than ten years' imprisonment and at least five years'
`supervised release; and his agreement that the parties would
`recommend that minimum term to the sentencing court. And Resto
`signed a cooperation agreement, too, in which he signaled, among
`other things, his willingness to provide truthful testimony at a
`future trial.
`
`9 The government met its case burden using: the agents that
`intercepted and searched the Black Wolfpack; the agents who
`extracted the data from the defendants' cell phones; the forensic
`chemist who tested the seized cocaine; and a cooperating Resto,
`who testified pursuant to a cooperation agreement. It also adduced
`photos and video evidence of the searches, the cocaine, and
`business records from the marina in St. Thomas, along with the
`relevant photos, text exchanges, and voice messages retrieved from
`the defendants' phones.
`
`- 11 -
`
`
`
`DISCUSSION
`
`
`
`
`
`The appellate contentions pressed by Martínez and Andino
`
`are discrete ones with no overlap as between each appellant.
`
`Martínez presses three challenges on appeal, each arising from a
`
`different moment during trial.10 In sum, she argues the district
`
`court committed errors (1) regarding Resto's trial testimony, (2)
`
`in making an evidentiary ruling, and (3) when it delivered jury
`
`instructions. As for Andino, she says the district court erred
`
`when it denied her the minor participant adjustment she sought.
`
`Proceeding chronologically, let's test the waters.
`
`Martínez
`
`Resto: Recross-Examination and the Motion to Strike
`
`Martínez's first argument zeroes in on Resto, the co-
`
`conspirator turned cooperating witness, and a couple of aspects of
`
`the district court's handling of his testimony. The thrust of her
`
`argument, as we understand it to be, is that two of the district
`
`
`10 Below, Martínez made a Rule 29 motion challenging the
`government's evidence as to her knowing participation in the
`conspiracy. The district court denied it. While Martínez's
`appellate papers at times suggest that the evidence as to her
`conspiracy participation and knowledge wasn't sufficient, we do
`not understand her to be advancing a sufficiency-of-the-evidence
`challenge here. Nor did the government. To the extent she may
`have intended to mount such a challenge before us, we deem it
`waived. See, e.g., Rodríguez v. Mun. of San Juan, 659 F.3d 168,
`175-76 (1st Cir. 2011) (deeming waived arguments offered with no
`citations or analysis); United States v. Zannino, 895 F.2d 1, 17
`(1st Cir. 1990) (urging that litigants are required to develop
`their own arguments rather than "leaving the court to do counsel's
`work").
`
`- 12 -
`
`
`
`court's rulings -- its denial of recross of Resto and, later, its
`
`grant of the government's motion to strike some of Resto's
`
`testimony -- denied her the opportunity to impeach Resto's
`
`testimony and credibility in violation of her Sixth Amendment
`
`Confrontation Clause rights. To navigate her claims, we first
`
`provide some preliminary guiding principles, then wade into the
`
`transcripts of the waning days of the trial to explicate the
`
`sequence of events and rulings.
`
`It's axiomatic that "[t]he Confrontation Clause of the
`
`Sixth Amendment guarantees criminal defendants the right to cross-
`
`examine witnesses who testify against them." United States v.
`
`Maldonado-Peña, 4 F.4th 1, 31 (1st Cir. 2021) (quoting United
`
`States v. Casey, 825 F.3d 1, 23-24 (1st Cir. 2016)), cert. denied
`
`Rivera-Alejandro v. United States, 142 S. Ct. 729 (2021), and cert.
`
`denied Rivera-George v. United States, 142 S. Ct. 1184 (2022), and
`
`cert. denied Rivera-Alejandro v. United States, 142 S. Ct. 1185
`
`(2022). It allows defendants to "test the believability of a
`
`witness and the truth of his testimony." Id. (quoting United
`
`States v. Rivera-Donate, 682 F.3d 120, 126 (1st Cir. 2012)). "This
`
`right is not without limits, however; the district court wields
`
`considerable discretion to impose 'reasonable limits' on cross-
`
`examination." Id. (quoting Casey, 825 F.3d at 24); see also United
`
`States v. Kenrick, 221 F.3d 19, 33 (1st Cir. 2000) (en banc)
`
`(acknowledging the district court's extensive discretion when it
`
`- 13 -
`
`
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`comes to controlling recross-examination), abrogated on other
`
`grounds by Loughrin v. United States, 573 U.S. 351 (2014).
`
`Importantly, "[w]hen a witness's credibility is at issue, the trial
`
`court may limit cross-examination as long as the court allows
`
`sufficient leeway to establish a reasonably complete picture of
`
`the witness' veracity, bias, and motivation." Maldonado-Peña, 4
`
`F.4th at 31 (quoting Rivera-Donate, 682 F.3d at 126). For our
`
`part, we employ a two-step analysis: We first "review de novo
`
`whether a defendant was afforded a reasonable opportunity to
`
`impeach a witness, and [second,] for abuse of discretion
`
`limitations the trial court imposed on that opportunity." Id.
`
`(quoting Casey, 825 F.3d at 24); see also United States v. Pérez-
`
`Ruiz, 353 F.3d 1, 11 (1st Cir. 2003) ("In the first instance,
`
`Confrontation Clause challenges are reviewed de novo in order to
`
`verify that the trial court afforded the defendant a reasonable
`
`opportunity to impeach adverse witnesses. When that
`
`constitutional threshold is crossed, we examine the trial court's
`
`restrictions on the manner and extent of cross-examination for
`
`abuse of discretion.").
`
`Initial guidance in place, we turn back to our case to
`
`see how things played out below.
`
`On trial days six and seven (of eight), defense counsel
`
`-- first for Andino, then for Martínez -- conducted their cross-
`
`examinations of Resto. As relevant here, both counsel probed
`
`- 14 -
`
`
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`Resto's cooperation agreement. Martínez's counsel went further
`
`and explored Resto's purchase and possession of a gun in Alaska,
`
`which he admitted to, as well as his drug-dealing business in
`
`Alaska. He also acknowledged that his plea agreement did not
`
`include a charge of possession of a weapon in furtherance of drug
`
`trafficking, nor did his sentencing guidelines recommendation
`
`include any points provided for possession of a firearm.11 About
`
`the propriety of his gun ownership, Resto testified his having it
`
`was legal in Alaska, but Martínez's counsel countered by asking,
`
`"[I]sn't it true that even if you buy a weapon . . . you have to
`
`register the weapon with the police department closest to your
`
`home[?]"
`
`Following cross-examination by both defense counsel, the
`
`government briefly redirected, and during the redirect, Resto
`
`testified there was no connection between his gun ownership and
`
`his selling drugs in Alaska. Thereafter, the district court
`
`excused Resto from the stand.
`
`Needing to take care of several procedural housekeeping
`
`matters, the court, outside the presence of the jury, held a
`
`sidebar at which Andino's attorney represented that he had intended
`
`to recross-examine Resto regarding aspects of his testimony
`
`
`11 The terms of Resto's plea agreement provided the agreement
`bound only "the United States Attorney's office for the District
`of Puerto Rico and the defendant."
`
`- 15 -
`
`
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`concerning his cooperation with the government and benefits he
`
`might have derived from that cooperation. He made a particularized
`
`proffer indicating he would have recrossed on "three specific
`
`moments in which [Resto] was promised by the agents that he was
`
`going to get specific considerations": (1) the FBI's statements
`
`to Resto which showed they made promises to him including bail and
`
`staying in Alaska; (2) the timing of when Resto began to cooperate;
`
`and (3) Resto's misstatements about what he said during his FBI
`
`interview. Martínez's counsel, without elaboration, "join[ed]
`
`brother counsel's objection." The district court denied the
`
`request, indicating that all those proposed topics had already
`
`been covered (or should have been covered) during cross-
`
`examination.12
`
`On the next and final day of the trial, the government,
`
`returning to the topic of Resto's cross-examination, moved to
`
`strike the testimony about Resto's Alaskan gun possession, argued
`
`that whether Resto had registered the gun was irrelevant to his
`
`credibility, and even if he may have run afoul of a registration
`
`requirement, he hadn't been convicted of any such violation. After
`
`
`12 No strictly new topics came up during redirect that would
`have, as we sometimes say, opened the door to new lines of inquiry
`Martínez's trial counsel couldn't have had an opportunity (or
`reason) to ask about up until that door was opened. See generally,
`e.g., United States v. Tetioukhine, 725 F.3d 1, 10 (1st Cir. 2013)
`(discussing what can suffice "to open the door to further cross-
`examination"). Martínez has not argued otherwise.
`
`- 16 -
`
`
`
`hearing from each side, the district court granted the motion on
`
`the grounds that Martínez's attorney, when asked, was unable to
`
`cite any firearm ownership law Resto had purportedly violated.
`
`The district court, finding that the gun-in-Alaska questioning
`
`could mislead the jury, instructed the jury to disregard all of
`
`it.
`
`On appeal, Martínez's argument takes aim at these two
`
`events -- the denial of recross-examination and the grant of the
`
`motion to strike -- and argues the district court's striking of
`
`Resto's gun testimony concerning his possession of the gun while
`
`dealing cocaine, "exacerbated by the court's denial of [her]
`
`opportunity to recross him," had the effect of depriving her "of
`
`the constitutionally required threshold level of inquiry," robbing
`
`her of "sufficient leeway to establish a reasonably complete
`
`picture of the witness's veracity, bias, and motivation." More
`
`specifically, she argues, the gun evidence could have been used to
`
`show Resto's bias given that the government could have charged
`
`him, but, favorable to him, didn't (see supra note 8),13 or could
`
`have enhanced his sentence, but, again favorable to him, didn't,
`
`
`13 Martínez does not pursue her trial-stage theory based on
`Resto having committed a crime by failing to register his gun in
`Alaska.
`
`- 17 -
`
`
`
`based on firearm possession (see 18 U.S.C. § 924(c)),14 thereby
`
`casting doubt on Resto's credibility. As she puts it, "[Resto's]
`
`credibility was at the core of the government's case against
`
`Martínez," and the court's double-barreled rulings impinged upon
`
`her ability to attack that credibility.15 Our bottom line takeaway
`
`from her argument boils down to this: Martínez asserts that being
`
`denied recross and then being unable to argue anything about the
`
`gun at all, because the little gun evidence there was had gotten
`
`stricken, impacted her ability to effectively attack Resto's
`
`credibility "by exploring the benefits he derived from his
`
`cooperation."
`
`The government offers a fulsome retort to Martínez's
`
`arguments which we'll weave into our analysis as we go along.
`
`We open by acknowledging our agreement with Martínez's
`
`top line assertion: The opportunity to recross a witness can
`
`
`14 We note Resto was not charged as a felon in possession of
`a firearm, presumably because his presentence report reflects that
`he had no known criminal history.
`
`15 We pause to make an observation. To the extent Martínez
`intends her arguments contesting the combination of rulings to be
`something akin to a violation of the cumulative error doctrine,
`see, e.g., United States v. Baptiste, 8 F.4th 30, 39 (1st Cir.
`2021) ("The cumulative-error doctrine holds that errors not
`individually reversible can become so cumulatively."), at the end
`of our analysis of these claims, we find no error and as we've
`said before, "[b]ecause we find no merit to the individual claims,
`as a matter of course there can be no cumulative error," United
`States v. Bulger, 816 F.3d 137, 160 n.25 (1st Cir. 2016) (citing
`United States v. Brown, 669 F.3d 10, 28 (1st Cir. 2012)).
`
`- 18 -
`
`
`
`implicate the Confrontation Clause. See, e.g., Pérez-Ruiz, 353
`
`F.3d at 10-11. And that's where we'll start our review, doing so
`
`with fresh eyes. Id. at 11 (arraying our court's review as
`
`starting with the de novo consideration of the confrontation-
`
`driven challenge, then, once "that constitutional threshold is
`
`crossed," moving to abuse-of-discretion scrutinization of the
`
`trial court's restrictions on cross).
`
`Reasonable Opportunity to Impeach
`
`Taking a look at the record, it clearly reflects, as the
`
`government contends, that the district court gave Martínez a
`
`reasonable opportunity to confront and impeach Resto.
`
`As mentioned, cross-examination commenced on trial day
`
`six, a day after the government completed its direct (with the
`
`government briefly "reopen[ing]" direct to show a few pictures).
`
`And as far as cross-examinations go, it went smoothly, with the
`
`district court allowing nearly all lines of inquiry, many of which
`
`prompted responses from Resto that reasonably could tend to cast
`
`doubt on his credibility. For example, Resto agreed that he had
`
`repeatedly lied to federal agents -- even up to four days before
`
`the trial started -- and that he was never charged with a separate
`
`crime based on these lies. The jury learned through his testimony
`
`that it was only after his attorney advised him to stop lying that
`
`Resto fully began to cooperate. The cross also focused on Resto's
`
`signed cooperation agreement with the government and the benefits
`
`- 19 -
`
`
`
`that he derived from it, including the possibility of a reduced
`
`sentence. Indeed, even in the wake of some sustained objections
`
`over the course of the two-day cross-examination, the record is
`
`clear "that the defense got its main point[s] across." Maldonado-
`
`Peña, 4 F.4th at 34-35; Pérez-Ruiz, 353 F.3d at 11 (finding it
`
`"crystal clear" that an appellant had "ample opportunity to
`
`confront [the witness's] testimony" when the district court gave
`
`defense counsel a recess after the direct had concluded and "did
`
`nothing to limit the length of [the ensuing] (and skillfully
`
`conducted) cross-examination"); see also Cruz-Rivera, 14 F.4th at
`
`52 (spying no confrontation issue when defense counsel had explored
`
`the witness's bias through a cooperation agreement and reduced
`
`sentence -- and leaned on the same during closing argument).
`
`Recross-Examination Request
`
`What remains, then, at step two, is for us to resolve
`
`whether the denial of recross-examination of Resto constituted an
`
`abuse of discretion. See Maldonado-Peña, 4 F.4th at 31; Casey,
`
`825 F.3d at 24. "The abuse-of-discretion standard is not
`
`'appellant-friendly.'" United States v. Marino, 833 F.3d 1, 7
`
`(1st Cir. 2016). We have said that "[t]he touchstone of abuse of
`
`discretion review . . . is reasonableness." Id. at 10 (quoting
`
`United States v. Vargas–Dávila, 649 F.3d 129, 130 (1st Cir. 2011)).
`
`This means that we will affirm only if "no reasonable person could
`
`- 20 -
`
`
`
`agree with the ruling." United States v. Rivera-Carrasquillo, 933
`
`F.3d 33, 44 (1st Cir. 2019).
`
`The short of it is that contrary to Martínez's claim,
`
`and as the government contends, the district court's ruling was
`
`not an abuse of its extensive discretion. Recall first that it
`
`was Andino's attorney, not Martínez's, who put any meat on the
`
`bones of the objection he made to the court's recross ruling. And
`
`here, Martínez does not even mention that three-point proffer
`
`Andino's attorney made to the court. Instead, Martínez's brief
`
`shifts back to talking about the exclusion of the gun testimony
`
`and how the earlier denial of recross prevented defense counsel
`
`from probing Resto's disclaimer of any connection between the gun
`
`and his drug dealing in Alaska.16
`
`But not only is this rear-view-mirror approach untenable
`
`in light of basic preservation principles, crucially, that's not
`
`how our review of her claim works. Our examination of her
`
`allegations of error focuses on the district court judge's
`
`reasonableness assessment of the evidentiary ruling at the time
`
`the decision was made. See United States v. Brown, 669 F.3d 10,
`
`
`16 We understand her argument on why she believes the court
`erred to go like this -- now knowing the district court would later
`strike Resto's gun testimony, she would have us consider that
`future ruling alongside the recross ruling to strengthen her
`contention that the court abused its discretion when it denied her
`the opportunity to recross. Creative -- give her that. Yet she
`cites nothing to support such a proposition.
`
`- 21 -
`
`
`
`22 (1st Cir. 2012) (instructing that "[i]mplicit in [the abuse of
`
`discretion] standard is the requirement that we not indulge in
`
`review by hindsight but consider what evidence was before the trial
`
`judge at the time").
`
`Accordingly, on these facts, we cannot characterize the
`
`district court's denial of recross as an abuse of discretion. See,
`
`e.g., Maldonado-Peña, 4 F.4th at 31; Kenrick, 221 F.3d at 33.
`
`Strike Motion
`
`We turn now to the motion to strike, which generally
`
`gets abuse-of-discretion review.17 See, e.g., United States v.
`
`Sabetta, 373 F.3d 75, 82 (1st Cir. 2004); United States v.
`
`Houlihan, 92 F.3d 1271, 1297 (1st Cir. 1996).
`
`Think back to the basic progression that led to the
`
`motion to strike: defense counsel suggested during cross that
`
`Resto had broken an Alaska law by possessing a gun and failing to
`
`register it; the motion to strike was filed a day later; when
`
`asked, Martínez's counsel could not provide the court with the
`
`Alaska law Resto supposedly broke. In the exchanges that followed,
`
`the court, Martínez's attorney, and the government debated whether
`
`the gun testimony should be stricken, with Martínez's counsel
`
`
`17 Strictly speaking, Martínez never argues that the grant of
`the motion was an abuse of discretion, instead specifically stating
`that the ruling as it related to the misleading gun-registration-
`law testimony was not something she was actually challenging on
`appeal. But this, we note, was the basis for the motion to strike
`and its eventual granting.
`
`-
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