United States v. Pina-Nieves ( 2023 )

United States Court of Appeals
For the First Circuit
No. 22-1421
UNITED STATES OF AMERICA,
Appellee,
v.
RAFAEL PINA-NIEVES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Barron, Chief Judge,
Lynch, Circuit Judge,
and Kelley, District Judge.*
Martin G. Weinberg, with whom Kimberly Homan was on brief,
for appellant.
Kevin Barber, United States Department of Justice, with whom
W. Stephen Muldrow, United States Attorney, Mariana E.
Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate
Division, Gregory Conner, Assistant United States Attorney,
Kenneth A. Polite, Jr., Assistant Attorney General, and Lisa H.
Miller, Deputy Assistant Attorney General, were on brief, for
appellee.
* Of the District of Massachusetts, sitting by designation.
January 30, 2023
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BARRON, Chief Judge. Rafael Pina-Nieves challenges his
2021 convictions in the United States District Court for the
District of Puerto Rico for, respectively, possessing firearms and
ammunition as a felon in violation of 18 U.S.C. § 922(g)(1) and
possessing a machinegun in violation of 18 U.S.C. § 922(o). We
affirm the former conviction but reverse the latter because it is
not supported by sufficient evidence.
I.
In 2015, Pina-Nieves, a music producer and business
owner, pleaded guilty in the District of Puerto Rico to one count
of bank fraud, a felony, in violation of 18 U.S.C. §§ 1344 and 2.
That conviction made it a federal offense under § 922(g)(1) for
Pina-Nieves to possess a firearm or ammunition.
In 2020, the Federal Bureau of Investigation ("FBI"),
while investigating a money-laundering operation, obtained a court
order to wiretap phone lines at a gas station in Puerto Rico that
Pina-Nieves owned. Through the wiretap, the FBI intercepted a
telephone call on February 6 of that year between Pina-Nieves and
one of his employees, Joed Romero-Soler. The call concerned
renovating a house that Pina-Nieves owned in Caguas Real, a gated
community in Caguas, Puerto Rico, so that the house could be rented
or sold.
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The following exchange occurred during the call, which
took place in Spanish, according to the transcript that sets forth
the official translation:
Pina-Nieves: And what do we do with the safe,
motherfucker?
Romero-Soler: Bro, right. You have that there
built-in. A whole ordeal, right? No, man,
leave it open.
Pina-Nieves: Man, yes.
Romero-Soler: You know, and take out whatever
you have . . . and, if you have anything . . .
and leave it open behind there so that whoever
moves in there will use it. You know, tell
Miguel to reset it. You know, that, look . . .
Pina-Nieves: Nah, nah, bro, I have money and
I have all sorts of things in there: my guns,
rifles, bullets.
Romero-Soler: Well, exactly, have Miguel take
out anything he needs to take out. You know
what you have in there, right?
Pina-Nieves: Yes, but no, no . . . I'm not
giving that motherfucker anything.
Romero-Soler: Well, I don't know . . . and
. . . and . . . you know, and the guns? Give
them to Johnny.
Pina-Nieves: No, because all of that is
[unregistered].
Romero-Soler: Nah, I'll wait until you get
here. I mean, yes, yes, when you get here
. . . I mean, it's alright. Anyway. . . .
Um, yes, when you come, well . . . you know,
take out whatever you need to take out and all
that and . . . and that's it.
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Pina-Nieves: No, but the thing is I can't take
it out either. That . . . well, yes. . . .
The thing is I don't have . . . I would have
to put . . . I would have to put a safe
somewhere that's not . . . you know, here, in
this house, it can't be done, because there's
no space. This is really small.
FBI agents executed a warrant to search the Caguas Real
house on April 1, 2020. The search revealed a hidden door and
keypad behind a full-length, floor-to-ceiling mirror, estimated to
be "eight to 10 feet" wide, in the master bedroom. The door led
to a hidden room that contained one Smith & Wesson pistol, one
Glock pistol, multiple boxes of ammunition, various firearm
magazines, a bayonet, a holster, a satellite phone, and a safe
holding more than $135,000 and €10,000 in cash and a certificate
bearing Pina-Nieves's name. The Glock pistol had been modified to
fire fully automatically with a single pull of the trigger.
A grand jury indicted Pina-Nieves in the District of
Puerto Rico on August 13, 2020 on two counts. Count One charged
Pina-Nieves with violating 18 U.S.C. § 922(g)(1), which makes it
"unlawful for any person . . . who has been convicted in any court
of, a crime punishable by imprisonment for a term exceeding one
year . . . to . . . possess in or affecting commerce, any firearm
or ammunition." Count Two charged him with violating 18 U.S.C.
§ 922(o), which makes it "unlawful for any person to transfer or
possess a machinegun." A "machinegun" under § 922(o) is "any
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weapon which shoots, is designed to shoot, or can be readily
restored to shoot, automatically more than one shot, without manual
reloading, by a single function of the trigger." United States v.
Nieves-Castaño, 480 F.3d 597, 599 (1st Cir. 2007) (quoting 26
U.S.C. § 5845(b)).
Pina-Nieves was convicted on both counts after a brief
trial and sentenced to 41 months' imprisonment. This appeal
followed.
II.
We start with Pina-Nieves's contention that his § 922(o)
conviction must be reversed because it is not supported by
sufficient evidence. To convict Pina-Nieves of the § 922(o)
charge, the government was required to prove beyond a reasonable
doubt that: (1) he knowingly possessed a machinegun on or about
April 1, 2020; and (2) he had knowledge that the firearm had the
characteristics that brought it within the statutory definition of
a machinegun under § 922(o) (though not that he knew that those
characteristics made the weapon a machinegun). See Staples v.
United States, 511 U.S. 600, 602 (1994); Nieves-Castaño, 480 F.3d
at 599.
Pina-Nieves's sufficiency challenge focuses solely on
what the record shows regarding whether he knew the machinegun
that he was convicted of possessing at the relevant time -- namely,
the modified Glock pistol that the FBI agents found on April 1,
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2020 in the hidden room of his Caguas Real house's master bedroom
-- had the characteristics that made it a machinegun under
§ 922(o). To succeed on this challenge, Pina-Nieves must show
that no rational juror could find beyond a reasonable doubt that
Pina-Nieves knew that the modified Glock pistol had those
characteristics. Jackson v. Virginia, 443 U.S. 307, 318 (1979)
("[T]he critical inquiry on review of the sufficiency of the
evidence to support a criminal conviction must be not simply to
determine whether the jury was properly instructed, but to
determine whether the record evidence could reasonably support a
finding of guilt beyond a reasonable doubt."). Our review is de
novo, although we must review the evidence in the light most
favorable to the verdict. United States v. Kanodia, 943 F.3d 499,
505 (1st Cir. 2019).
A.
Pina-Nieves contends that the record shows that the
evidence was not sufficient because the government failed to
present any direct or circumstantial evidence that could support
a reasonable inference that Pina-Nieves had "ever set eyes on the
[modified Glock pistol], much less examined it or fired it." He
notes, for example, that the government did not introduce evidence
that his fingerprints were found on the gun. He adds that the
record contains no evidence that he was the one who purchased the
gun, which the record shows was bought in 2016 in Ohio. He notes,
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too, that the record contains no evidence to indicate that the gun
had been modified to make it a machinegun at the time that it was
purchased.
Pina-Nieves goes on to contend that these features of
the record take on particular significance due to the absence of
any evidence that, although Pina-Nieves owned the Caguas Real house
"on or about April 1, 2020," he lived at that residence during
that time. Indeed, he notes, there is substantial evidence to
show that he was living at that time either elsewhere in Puerto
Rico or in Florida, as well as evidence that others had access to
both the house and the area where the gun in question was found
during the search on April 1, 2020. Moreover, Pina-Nieves points
out, there is no direct evidence in the record of his having been
present in the Caguas Real house at any time after the Glock pistol
was purchased in Ohio in 2016.
Pina-Nieves winds up his sufficiency challenge by
emphasizing that there is no evidence in the record -- direct or
circumstantial -- as to when, from the time of the weapon's
purchase in Ohio in 2016 to its discovery in his Caguas Real house
on April 1, 2020, it had been modified to be a machinegun. In
consequence, although Pina-Nieves does not dispute that the gun in
question is a machinegun under § 922(o) or that it was found in
his Caguas Real house on April 1, 2020, he contends that, given
that there is no evidence to indicate that he was at that house on
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that date, the mere presence of that gun in that house on that
date cannot suffice to permit the reasonable inference that he
knew that the gun had the characteristics of being able to fire
automatically.
B.
To counter Pina-Nieves's argument, the government
emphasizes that it may make its case about his knowledge of the
characteristics of the weapon in question based on circumstantial
evidence. See United States v. Ridolfi, 768 F.3d 57, 61 (1st Cir.
2014). It then contends that the record suffices to show that
Pina-Nieves constructively possessed the firearms found in his
Caguas Real house on April 1, 2020, that one of those guns was a
modified Glock pistol that qualifies as a machinegun under
§ 922(o), that the external modification that made the Glock pistol
fully automatic was visible, that Pina-Nieves was acquainted with
a range of weapons and firearms, and that the machinegun in
question was found not just in a house that Pina-Nieves owned but
in a hidden room attached to the master bedroom in that house.
Moreover, the government points to what Pina-Nieves was
heard saying during the intercepted February 6 call. Here the
government notes that, in addition to what Pina-Nieves concedes in
his briefing to us was his reference to "pistols" during that call,
the transcript of the phone call shows that he referred on it to
"my guns" being "unregistered." The government contends that the
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description of the guns being "unregistered" is significant
because machineguns cannot be registered under federal law. Thus,
the government argues, that description provides support for the
inference, when the evidence is considered as a whole, that
Pina-Nieves knew that one of the guns to which he was referring at
that time had the characteristics of a machinegun.
C.
The evidence certainly suffices to tie Pina-Nieves to
the modified Glock pistol found in his house on April 1, 2020. In
fact, Pina-Nieves does not dispute on appeal that the evidence
suffices to show that he was in constructive possession of that
firearm as of that date. But, we have made clear that a juror may
not reasonably infer merely from the fact that one constructively
possesses a machinegun that the defendant knows what he must under
§ 922(o) about the characteristics of that weapon. See
Nieves-Castaño, 480 F.3d at 599-600.
Moreover, although Pina-Nieves does concede in his
briefing to us that he referred on the February 6, 2020 call to
"pistols," this limited description of those weapons is not direct
evidence that he knew that either weapon had the characteristics
of a machinegun. In addition, his reference on that call to "my
guns" being "unregistered" fails to assist the government in
fending off the sufficiency challenge, because his prior felony
conviction equally could explain why he could not register a
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firearm. Indeed, we note that the April 1, 2020 search that turned
up the modified Glock pistol at Pina-Nieves's Caguas Real house
discovered two pistols, not one, and yet only one of them qualified
as a machinegun under § 922(o).
Of course, we cannot look at each piece of evidence in
isolation. United States v. Ortiz, 966 F.2d 707, 711 (1st Cir.
1992). But, even when we consider the evidence as a whole, we are
persuaded by Pina-Nieves's argument that the government's theory
of sufficiency impermissibly depends either on speculative
inferential leaps or the stacking of inference upon inference.
See United States v. Guzman-Ortiz, 975 F.3d 43, 52-56 (1st Cir.
2020).
To conclude that Pina-Nieves not only was in possession
of a machinegun "on or about April 1, 2020" but also knew that the
machinegun could fire fully automatically, a juror would have to
infer that Pina-Nieves had either seen it for long enough to become
familiar with the characteristics of it that made it a machinegun
or had been told at some point that it had those characteristics
even though he had never seen it.
But, as we have explained, there is no evidence in the
record that shows when the Glock pistol was modified, reports
anyone having told Pina-Nieves that the weapon had been so
modified, or places Pina-Nieves at his Caguas Real house at any
time after the Glock pistol's 2016 purchase in Ohio. Moreover,
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there is evidence that he was living elsewhere from at least 2010
on, as well as evidence that others were in the house during that
time with access to the area where the gun was found. Thus, while
Pina-Nieves does not dispute that the evidence suffices to show
that he constructively possessed the weapon within the relevant
time frame and that it was found in a house that he owned during
that same time frame, we do not see how a rational juror could
make the requisite inference that Pina-Nieves knew that this weapon
had the characteristics of a machinegun other than by engaging in
just the kind of speculation or inference-stacking that cannot
suffice to support a conviction.
D.
The government does contend that our precedent requires
that we conclude otherwise by pointing to our decisions in United
States v. Laureano-Pérez, 797 F.3d 45 (1st Cir. 2015), United
States v. Shaw, 670 F.3d 360 (1st Cir. 2012), and United States v.
Giambro, 544 F.3d 26 (1st Cir. 2008). But, we do not agree.
In Shaw, the government presented evidence that the
defendant had recently handled the gun in question. 670 F.3d at
364 (the defendant fired the modified gun and "deftly" unloaded
it). And, in Giambro, the government presented evidence that the
defendant had seen the gun and was therefore familiar with the
obvious "external indications signaling the nature of the weapon."
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544 F.3d at 30-31 (quoting Nieves-Castaño, 480 F.3d at 601). There
is no such evidence in the record here.
Moreover, the record in Laureano-Pérez also is not like
the record here. In that case, one of the defendants, Jeffrey
Cummings-Ávila, argued that the evidence did not suffice to support
his § 922(o) conviction because the evidence did not suffice to
establish beyond a reasonable doubt that he knew that the pistols
that had been found in a closed red and black bag during a search
of his apartment had the characteristics of a machinegun -- even
though the evidence did suffice to show that each of the pistols
found in that bag did have those characteristics. See
Laureano-Pérez, 797 F.3d at 74. The defendant contended that was
so because "the government provided no evidence that
[Cummings-Ávila] opened up the bag or was told what the bag
contained." Id. at 75.
We held, however, that "the cumulation" of four
different strands of "circumstantial evidence" present in the
record in that case was "just enough to sustain" the conviction.
Id. at 76. First, we pointed to the evidence that Cummings-Ávila
"often stored guns and drugs" for a large, armed drug organization.
Id. at 75. Second, we explained that the evidence of
Cummings-Ávila's role in the organization indicated that he was
"trusted by his co-conspirators," which mattered because
"positions of trust often come with increased access to
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information." Id. Third, we pointed to the evidence that
Cummings-Ávila was "close" to the organization's leader, as we
concluded that a rational juror could conclude from this evidence
of their closeness that the leader "would have confided in
[Cummings-Ávila] regarding the details of the bag" that was found
in his apartment that contained the machineguns. Id. at 75-76.
Finally, we pointed to testimony of a witness having seen
Cummings-Ávila firing .40- or .45-caliber pistols that had been
modified to fire automatically shortly before Cummings-Ávila was
given the bag in question. Id. at 74, 76.
There is no circumstantial evidence of the requisite
knowledge in the record before us here that is like the evidence
that we held was sufficient in Laureano-Pérez, a case that we
deemed to be "close," id. at 75. For example, there is no witness
testimony that Pina-Nieves had at any time (let alone in close
proximity to the period from February 6, 2020 to April 1, 2020)
handled a pistol that had been modified to be a machinegun or
learned that a weapon that was his had been so modified. Moreover,
there is no evidence that Pina-Nieves often stored guns for a
criminal organization, much less evidence that he was sufficiently
close to the leader of such an organization that he would have
been informed of the details of the weapons he stored.
And, while the record shows a machinegun was found in a
house Pina-Nieves owned, no evidence places him in that house at
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a time when the machinegun was known to have been in its modified
state. In fact, as we have noted, substantial evidence indicates
that Pina-Nieves was not living there in the years leading up to
the weapon's discovery in that house and that others had access to
it in full.
Our conclusion that the evidence is not sufficient also
aligns with the out-of-circuit precedent that the defendant cites.
See United States v. Rogers, 94 F.3d 1519, 1521-23 (11th Cir. 1996)
(reversing the defendant's § 922(o) conviction "[b]ecause the
Government did not introduce any evidence showing that [the
defendant] was aware that [the modified pistol in question] had
been altered to operate as a fully automatic weapon," even though
the pistol was discovered in a black bag beneath the driver's side
seat of the defendant's truck, the defendant had been driving the
truck at the time, the defendant "correctly identified" the pistol
during an interview with a special agent from the Bureau of
Alcohol, Tobacco, and Firearms, and the pistol had been
manufactured as a semi-automatic weapon); United States v. Michel,
446 F.3d 1122, 1130-32 (10th Cir. 2006) (reversing the defendant's
conviction for possession of an unregistered sawed-off firearm
that also lacked a serial number in violation of 26 U.S.C.
§ 5861(d) and 5861(i) because "the government presented absolutely
no evidence that [the defendant] ever observed or handled" the gun
in question and thus could not support the "inferential leap"
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required for the jury to find that he had knowledge of the gun's
characteristics).
In fact, the government does not attempt to address
Rogers and contends that Michel's reasoning has no application to
this case for reasons that we find unpersuasive. The government
contends that Michel has little bearing here because it establishes
merely that a "fleeting encounter was not enough to establish the
defendant's familiarity with the gun and its characteristics."
But, Michel focused on the brief nature of the defendant's
encounter with the weapon there to explain why there was not
sufficient evidence to prove beyond a reasonable doubt that the
defendant was familiar with the characteristics of that weapon
that made it a sawed-off firearm. See Michel, 446 F.3d at 1130-
32. And here, given all the evidentiary gaps that we have
described, a juror could no more reasonably infer from the nature
of Pina-Nieves's tie to the weapon in question that it was beyond
a reasonable doubt that he had seen the modifications that had
transformed it into a machinegun than a juror could have in Michel.
E.
In sum, even though the government has sufficiently
proved Pina-Nieves's constructive possession of the modified Glock
pistol on or about April 1, 2020, based on the circumstantial
evidence that is in the record, the government was required to
prove more to secure this conviction. And Pina-Nieves has
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persuasively made the case that the government failed to do so
because it failed to identify any evidence in the record that could
support a finding beyond a reasonable doubt that he knew as of the
relevant time that the modified Glock pistol found had been so
modified. See Nieves-Castaño, 480 F.3d at 602. Thus, we conclude
that Pina-Nieves's § 922(o) conviction must be reversed.
III.
Pina-Nieves separately contends that both his § 922(o)
conviction and his § 922(g)(1) conviction must be vacated due to
trial errors. The first claimed error concerns the District
Court's decision to admit certain evidence pursuant to Federal
Rule of Evidence 801(d)(2)(C) and (D). The second claimed error
concerns the District Court's decision to exclude certain evidence
on relevancy grounds pursuant to Federal Rule of Evidence 401.
We need not address Pina-Nieves's contention that his
§ 922(o) conviction must be vacated due to these asserted trial
errors because it must be reversed on sufficiency grounds. We do,
however, need to address his contention that these claimed trial
errors require that we vacate his § 922(g)(1) conviction. Our
review is for abuse of discretion because Pina-Nieves asserted
each error below. See United States v. Velazquez-Fontanez, 6 F.4th
205, 219 (1st Cir. 2021). But, although we are persuaded that the
District Court did make the two asserted errors, they do not
require that we overturn the conviction because we agree with the
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government that the errors were harmless as to that conviction.
See United States v. Piper, 298 F.3d 47, 56 (1st Cir. 2002). And
that is so, we add, even if we were to consider their cumulative
effect.
A.
We begin with the claimed error that implicates Rule
801. We will first set forth the relevant facts. We will then
explain why we conclude that there was error.
1.
Three days before the first day of trial, Pina-Nieves
filed a motion to dismiss the indictment. Pina-Nieves's trial
counsel, Francisco Rebollo-Casalduc, signed and filed the motion.
The motion argued that the government had violated
Pina-Nieves's Sixth Amendment right to counsel by engaging in
prosecutorial misconduct, including by placing an informant in the
defense camp who reported to the government "the content and
substance of the confidential communications between Mr.
Pina-Nieves and his attorneys." The motion further argued that
the information reported included Pina-Nieves's "personal
evaluation of plea offers and counter offers and [Pina-Nieves's]
thoughts on potential defense trial strategies." And, the motion
contended, the government's alleged misconduct prejudiced
Pina-Nieves because the information that the government received
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had caused federal prosecutors to harden their plea-bargaining
position such that the "bottom line . . . involved time in prison."
At one point, the motion stated the following:
As Exhibit 1 reflects, on October 2, 2020, the
government informant, whose name is blacked
out in the report, informed case agent Justin
Turner that "Pina had a meeting with his
attorneys, after having received evidence form
[sic] the U.S. Attorney's Office associated
with his pending charges and trial. As a
result, Pina gathered his family and
associates on his new yacht to discuss the
case. Pina was advised by his attorneys he
will most likely have to spend time in prison,
as a result of the charges. Pina's attorneys
will reach out to the U.S. Attorney's Office
in the near future to broker a plea agreement.
During the meeting on the yacht, Pina prepared
his family and associates for the likelihood
of his serving time in prison and handed down
his responsibilities to his associates on how
to run the business in his absence." Just the
fact that the government learned that the
defendant was resigned to the fact that he
would have to spend time in prison is a
tremendous advantage to have in plea
negotiations. Indeed, the clients the
undersigned counsel represents typically
would not accept a plea offer involving a
prison sentence under any circumstances, and
that is a tremendous advantage to have in plea
negotiations. Here, Mr. Pina-Nieves lost that
advantage, and any upper hand or leverage, in
his plea negotiations, on account of the
government's violation of his sacred right to
confidential attorney-client communications.
With this advantage, the government could
adjust its negotiation strategy, knowing it
could always maintain a string [sic] hand and
a bottom line which involved time in prison.
This makes the plea negotiations which have
taken place to date, and any that could have
taken place in the future, a complete sham.
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(Emphasis added).
The government opposed the motion. But, in doing so,
the government notified Pina-Nieves that it intended to admit into
evidence pursuant to Rule 801(d)(2)(C) and Rule 801(d)(2)(D) the
sentence from the motion's above-quoted passage that we have
underlined: "Just the fact that the government learned that the
defendant was resigned to the fact that he would have to spend
time in prison is a tremendous advantage to have in plea
negotiations."
Rule 801(d)(2) provides in relevant part that a
statement is not hearsay if it is "offered against an opposing
party and: . . . (C) was made by a person whom the party authorized
to make a statement on the subject; [or] (D) was made by the
party's agent or employee on a matter within the scope of that
relationship and while it existed." Rule 801(a) defines a
"statement" as "a person's oral assertion, written assertion, or
nonverbal conduct, if the person intended it as an assertion."
Pina-Nieves opposed the admission into evidence of the
sentence in question on the ground that it did not fall within
either Rule 801(d)(2)(C) or Rule 801(d)(2)(D) and was not otherwise
admissible. The District Court disagreed after concluding that,
"[a]s defense counsel, Rebollo is authorized to represent Pina
before the Court. Rebollo's statements are, thus, attributable to
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Pina." United States v. Pina-Nieves, 575 F. Supp. 3d 270, 275
(D.P.R. 2021).
Pina-Nieves continued to object at trial to the
admission of the sentence in question on the ground that it did
not fall within either Rule 801(d)(2)(C) or Rule 801(d)(2)(D), but
to no avail. In addition, Pina-Nieves objected to the government's
request on the first day of trial that the District Court take
"judicial notice" of the sentence in the motion to dismiss. The
District Court nonetheless instructed the jury, prior to the
calling of any witnesses, as follows:
Judicial notice is taken that on December 11,
2021, counsel for Defendant Rafael Pina-Nieves
made the following statement in a motion filed
in the Electronic Docket and Case Management
System in this court, at Entry Number 168, as
follows: Quote:
Just the fact that the government learned that
the defendant was resigned to the fact that he
would have to spend time in prison is a
tremendous advantage to have in plea
negotiations.
This judicially-noticed fact can be so
accurately and readily determined that it
cannot be reasonably disputed. You may,
therefore, reasonably treat this fact as
proven, even though no evidence has been
presented on this point.
As with any fact, however, the final decision
whether to -- whether or not to accept it is
for you to make. You are not required to agree
with me.
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At the close of evidence, and over Pina-Nieves's
objection, the District Court repeated this instruction almost
verbatim. The government then began its closing argument by
quoting the sentence at issue and arguing that it was "evidence of
consciousness of guilt." The government also included the sentence
in large text in a PowerPoint presentation it used during closing
argument and rebuttal. During its rebuttal, the government
revisited the sentence at issue, calling it "incriminating
evidence coming also from the defense camp." Then, after quoting
the sentence once more, the government stated: "That wasn't a
witness that we brought to testify something the defendant told
that witness. No. No. No. That was the defense attorneys in
black and white, in a motion. Two words come to mind from our
behalf: Thank you. More evidence of guilt."
2.
The government contends that the "just the fact that"
sentence is a "written assertion," see Rule 801(a), and so a
"statement" within the meaning of Rule 801(d)(2)(C) and
801(d)(2)(D). That is so, the government contends, because the
sentence makes a legal argument about why the government's alleged
misconduct would be prejudicial that has "embedded" within it an
assertion of fact about Pina-Nieves's state of mind.
The government goes on to contend that the sentence
qualifies as an admissible statement under those subsections of
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Rule 801(d)(2). That is so, according to the government, because
the assertion of fact that the sentence makes about Pina-Nieves's
state of mind is attributable to Pina-Nieves himself, given that
Pina-Nieves's counsel, Rebollo-Casalduc, filed the motion that
contains the sentence.
But, the introductory phrase "just the fact that" in the
sentence at issue is most naturally read to be merely the
colloquial means by which the beginning of the sentence conveys
the consequence that is then spelled out in the remainder of that
sentence. So understood, the sentence is most naturally read
merely to be making a legal argument about the prejudice that would
follow if the government had "learned" a certain fact about
Pina-Nieves's state of mind through alleged misconduct, rather
than to be making such a legal argument while also asserting that
the government had learned of any fact about Pina-Nieves's state
of mind.
The government does point out that the motion to dismiss
the indictment argues that the government's misconduct prejudiced
Pina-Nieves by enabling the government to obtain access to
information about Pina-Nieves's state of mind and that this access
to that information in turn gave the government an "extra advantage
in plea negotiations." The government goes on to contend that it
could have obtained that "extra advantage" only if Pina-Nieves
was, in fact, resigned to spend time in prison. Thus, the
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government argues, the sentence in question, when read in the
context of the motion as a whole, must be read to be impliedly
making the factual assertion that Pina-Nieves was so resigned and
not merely to be making the legal argument that the government's
misconduct would be prejudicial if the government had learned that
Pina-Nieves had that state of mind.
We must focus, however, on what the sentence that was
admitted into evidence pursuant to Rule 801 itself says. It is
that sentence -- and that sentence alone -- that was deemed to
qualify as a "statement" admissible under Rule 801. Yet, with
that focus in mind, we conclude that the government's "reading is
not compelled by the language of the [sentence]," Harrington v.
City of Nashua, 610 F.3d 24, 31 (1st Cir. 2010).
True, the sentence appears as part of the motion's
broader argument about how the government's asserted misconduct is
prejudicial. But, the sentence does not make an assertion about
what Pina-Nieves's state of mind was or even a representation that
the government had learned of his state of mind. It explains how
prejudice could flow from the government having "learned" such a
"fact" without thereby itself asserting that the government had
learned any such fact.
Nor need the sentence have made any such factual
assertion to have advanced the broader prejudice argument that the
motion to dismiss the indictment makes. In context, the sentence
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served the useful function of spelling out how the government's
knowledge of a fact about Pina-Nieves's state of mind with respect
to being resigned to spend time in prison could have hurt
Pina-Nieves in plea negotiations insofar as the government had
such knowledge.
Thus, the government fails to demonstrate that the
sentence in question included an assertion of fact about
Pina-Nieves's state of mind within the legal argument that it was
making about prejudice. See id. Accordingly, we agree with
Pina-Nieves that the District Court abused its discretion in
admitting the sentence in question pursuant to Rule 801. See Gill
v. Maciejewski, 546 F.3d 557, 563 (8th Cir. 2008) (counsel's
statements during a criminal trial not admissible under Fed. R.
Evid. 801(d)(2)(C) or (D) where opposing party took "unwarranted
liberties with the context of the statement"); United States v.
Blood, 806 F.2d 1218, 1221 (4th Cir. 1986).
B.
We now turn to the claimed error by the District Court
that implicates Rule 401. It concerns the District Court's
exclusion of the testimony of Pina-Nieves's realtor in Miami,
Florida, Jordan Millman. We first lay out the pertinent facts.
We then explain why we conclude that there was error.
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1.
On the sixth day of trial, Millman testified that he met
Pina-Nieves at the end of 2010, when Pina-Nieves was looking at
apartments in Miami, and that Millman had personal knowledge of
Pina-Nieves living in Miami in 2010 because Millman lived in the
same building. The government then objected to Millman's
testimony, pursuant to Federal Rule of Evidence 401, which provides
that "[e]vidence is relevant if: (a) it has any tendency to make
a fact more or less probable than it would be without the evidence;
and (b) the fact is of consequence in determining the action."
The District Court struck the testimony from Millman
that he had already provided and barred the remainder. Pina-Nieves
subsequently made the following offer of proof to no avail:
[Millman] would have testified that in 2010,
he assisted Mr. Pina in renting an apartment
at the Epic, that he lived in that apartment
through 2013. That in 2013, that apartment
was sold, and he moved to Aventura, and that
in 2016, he assisted Mr. Pina in starting to
-- towards the end of 2016, in starting to
look for properties to buy, that he purchased
an apartment in 2019. He has personal
knowledge that he lived there, and that he
sold that apartment in 2021 and bought a house
in north Miami.
2.
Our standard of review for a Rule 401 ruling by a
district court is quite deferential, given the trial judge's
closeness to the record. See Bielunas v. F/V Misty Dawn, Inc.,
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621 F.3d 72, 76 (1st Cir. 2010). Nonetheless, "[r]elevancy is a
very low threshold . . . . And 'the evidence need not definitively
resolve a key issue in the case,' but rather 'need only move the
inquiry forward to some degree.'" United States v. Cruz-Ramos,
987 F.3d 27, 42 (1st Cir. 2021) (quoting Bielunas, 621 F.3d at
76).
Pina-Nieves no doubt could have been clearer in
explaining to the District Court how the testimony from his realtor
would have advanced his defense. Nonetheless, we are persuaded
that the excluded Millman testimony crossed the low threshold for
relevance that Rule 401 establishes.
According to Pina-Nieves's proffer, Millman would have
testified that he had "personal knowledge" that Pina-Nieves
"lived" in the Miami apartment that he purchased in 2019 and that
he did not sell that apartment until 2021. That testimony was
relevant to Pina-Nieves's contention that he was so distant from
the Caguas Real house that he could not have either intended to
exercise dominion and control over the weapons in question or known
of the characteristics of the modified Glock pistol that made it
a machinegun.
Millman's testimony also provided support for finding
that Pina-Nieves had residences outside of Puerto Rico from prior
to the time that the modified Glock pistol had first been purchased
in Ohio in 2016 through the time he is alleged to have
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constructively possessed the weapon. In that respect, too, then,
Millman's testimony would have "move[d] the inquiry forward to
some degree" by bolstering Pina-Nieves's contention that he was
sufficiently removed from the goings-on at the Caguas Real property
on or about April 1, 2020 that he lacked both the intent to exercise
dominion and control over the weapons found there at that time and
the knowledge of the characteristics of the modified Glock pistol
that made it a machinegun.
C.
We turn, then, to the government's arguments that each
of the errors was harmless. And, that is, the government contends,
even if we account for their cumulative effect. See United States
v. Sepulveda, 15 F.3d 1161, 1195-96 (1st Cir. 1993). For the
reasons we will next explain, we agree with the government.
To prove that Pina-Nieves was guilty of the § 922(g)(1)
charge, the government was required to prove beyond a reasonable
doubt that Pina-Nieves was a felon who possessed firearms or
ammunition on or about April 1, 2020. Pina-Nieves stipulated that
he became a felon in 2015. Thus, the only element in dispute is
the possession element, which the government contends is satisfied
solely due to the evidence in the record that it contends shows
that Pina-Nieves constructively possessed firearms or ammunition
at the time specified in the underlying charge.
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To show such constructive possession, the government was
required to prove beyond a reasonable doubt that, on or about April
1, 2020, Pina-Nieves knowingly had the power and intention of
exercising dominion and control over firearms or ammunition. See
United States v. Tanco-Baez, 942 F.3d 7, 25 (1st Cir. 2019). And
to so prove, the record, as a whole, "must contain evidence of
'some action, some word, or some conduct that links the individual
to the [firearm] and indicates that he had some stake in it, some
power over it.'" Ridolfi, 768 F.3d at 62 (alteration in original)
(quoting United States v. McLean, 409 F.3d 492, 501 (1st Cir.
2005)).
The wrongly admitted Rule 801 evidence was plainly
highly prejudicial with respect to any disputed element and thus
with respect to the possession element. See United States v.
Canty, 37 F.4th 775, 792 (1st Cir. 2022). Indeed, the government
emphasized that evidence in its closing argument and rebuttal and
described it as "incriminating," while also stating that it came
from the "defense camp."
In addition, the Millman testimony was relevant to the
question of Pina-Nieves's constructive possession of the firearms
and ammunition in question as of the date set forth in the
underlying charge. And, while the government contends that the
Millman testimony was merely cumulative of other evidence that
showed that "Pina resided during the pertinent time period in
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places other than the Caguas Real house," it would have added,
with respect to Pina-Nieves's connection to the Miami apartment,
Millman's "personal knowledge that [Pina-Nieves] lived there" from
2010 through 2021. That testimony also would have provided, as
Pina-Nieves contends, details about "Pina's more recent
acquisitions of property, and residence in, Miami" while the
"development of Millman's relationship with Pina over time would
have provided important background regarding how Millman and Pina
became sufficiently close friends that Millman was in a position
to have personal knowledge of how much time Pina spent in Miami."
Nonetheless, the question we must answer in assessing
harmless error is not merely whether the two errors, either alone
or in combination, had some prejudicial effect as to the possession
element, as they surely did. The question is whether the
government has met its burden to show that it is "highly probable"
that the errors, even if considered in combination, did not affect
the guilty verdict on the § 922(g)(1) charge. See Piper, 298 F.3d
at 56; Sepulveda, 15 F.3d at 1195-96. And, in answering that
question, we cannot ignore the strength of the evidence of guilt
with respect to the conviction at issue, see Sepulveda, 15 F.3d at
1196, which we conclude is overwhelming as to Pina-Nieves's
constructive possession.
Pina-Nieves does argue -- based on the "outsized stress"
that the government placed on the wrongly admitted "just the fact
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that" sentence -- that the Rule 801 error was not harmless because
"the government knew full well the devastating impact the evidence
would have upon the jury's ability to fairly weigh the evidence
against Pina." Pina-Nieves nowhere disputes in his briefing to
us, however, the government's contention that he could be convicted
on the charged § 922(g)(1) offense based on his having
constructively possessed firearms or ammunition on February 6,
2020. And that is significant because, as Pina-Nieves admits, the
transcript of the February 6 phone call shows that he referred in
that call, which concerned what was in the Caguas Real house, to
"my guns" -- or, as he concedes in his briefing, "pistols" -- as
well as ammunition being there.
To be sure, Pina-Nieves contends that the transcript
does not show -- let alone overwhelmingly -- that he had the intent
to exercise dominion and control over any such weapons. He argues
that the transcript shows, in fact, the opposite, as he contends
that it shows that he "declin[ed] to exercise dominion and control"
over the guns and bullets to which he referred on the phone call
and "even indicat[ed] that he cannot exercise dominion and control
over them." Thus, on his telling, the transcript of the February
6 call shows him "rejecting every suggestion of what might be done
with the weapons and ammunition and deferring any decision until
he returned to Puerto Rico at some unspecified time in the future."
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But, the transcript of the February 6 phone call shows
that the call took place in the context of Pina-Nieves deciding
how to prepare the Caguas Real house that he owned to be rented or
sold by deciding what items he intended to store in a warehouse,
what items he intended to give away, what items he intended to
keep with the Caguas Real house, and what items he intended to
keep for himself either at the Caguas Real house or his second
house in Puerto Rico, where all parties agree that Pina-Nieves
actually lived when in Puerto Rico. And, according to the
transcript, Pina-Nieves not only first raised the issue of the
"safe" and later told the other party to the call, Romero-Soler,
what the "safe" contained but also left no doubt it contained guns
and bullets that were his, as he described the "safe" as
containing: "my guns, rifles, bullets" (emphasis added).
Moreover, and crucially, the transcript does not just
show that Pina-Nieves understood the weapons and ammunition to
which he referred to be his own. It also shows that when
Romero-Soler suggested that Pina-Nieves "have Miguel take out
anything he needs to take out," then "reset [the keypad on the
hidden room's door]" and "leave [the door] open behind there so
that whoever moves in there will use it," Pina-Nieves responded
emphatically in the negative. Because prohibiting action is as
much an exercise of dominion and control as allowing action, the
transcript therefore shows that Pina-Nieves claimed on February 6,
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2020 that guns and ammunition that were located in a private area
of the house that he owned were his own, that on that date an
associate of his had sought out his direction about what to do
with those guns and that ammunition, and that he had responded to
that associate's request for that direction by giving it in no
uncertain terms.
We thus do not see how the transcript may be read other
than to show that Pina-Nieves had "some stake in" the firearms and
ammunition he called "my" guns and bullets as of February 6, 2020,
see Ridolfi, 768 F.3d at 62, a date that Pina-Nieves does not
dispute is "on or about April 1, 2020." Accordingly, the
government has met its burden to show harmless error because the
overwhelming nature of the evidence of Pina-Nieves's constructive
possession of weapons and ammunition "on or about April 1, 2020"
makes it "highly probable" that the evidentiary errors did not
affect the verdict of guilt on the § 922(g)(1) charge. See Piper,
298 F.3d at 56–58.1
1 Pina-Nieves does argue that the exclusion of the Millman
evidence deprived him under the U.S. Constitution of his Fifth and
Sixth Amendment rights to mount a defense and that the admission
of the "just the fact that" sentence from his motion to dismiss
deprived him under the U.S. Constitution of his Sixth Amendment
right to conflict-free counsel. But, we need not address those
challenges in any detail because each fails for the same reasons
that we conclude that the Rule 801 and Rule 401 errors are
harmless: the evidence of guilt concerning the only disputed
element of this conviction is overwhelming. See United States v.
Cardona-Vicenty, 842 F.3d 766, 772 (1st Cir. 2016); United States
v. Pizarro, 772 F.3d 284, 287 (1st Cir. 2014).
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IV.
Pina-Nieves's § 922(g)(1) conviction is affirmed, while his
§ 922(o) conviction is reversed.
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