United States v. Perez-Couvertier ( 2020 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 16-2186
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    EDWIN G. PEREZ-CUBERTIER,
    Defendant, Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF PUERTO RICO
    [Hon. Jay A. García-Gregory, U.S. District Judge]
    Before
    Howard, Chief Judge,
    Lipez and Thompson, Circuit Judges.
    Julia Pamela Heit for appellant.
    John Patrick Taddei, Attorney, Criminal Division, Appellate
    Section, U.S. Department of Justice, with whom John P. Cronan,
    Acting Assistant Attorney General, Criminal Division, U.S.
    Department of Justice, Nina Goodman, Attorney, Appellate Section,
    Criminal Division, U.S. Department of Justice, Rosa Emilia
    Rodríguez-Vélez, United States Attorney, Mariana Bauzá-Almonte,
    Chief, Appellate Division, Assistant U.S. Attorney, Edward G.
    Veronda, Assistant U.S. Attorney, and Stuart J. Zander, Assistant
    U.S. Attorney, were on brief for appellee.
    May 7, 2020
    Per Curiam.   A jury convicted Edwin Perez-Cubertier
    ("Perez") of four counts of possessing with intent to distribute
    controlled substances in a protected area and conspiring to do the
    same.1    See 21 U.S.C. §§ 841(a)(1), 846, 860.   He now appeals his
    conviction, raising two evidentiary issues and a constitutional
    speedy trial claim.    Because we conclude that the district court
    did not plainly err with respect to any of Perez's challenges, we
    affirm.
    I.
    On appeal of a jury verdict, we recite the facts,
    consistent with record support, in the light most favorable to the
    jury's verdict.     See United States v. Lowe, 
    145 F.3d 45
    , 47-48
    (1st Cir. 1998).
    In June 2010, Perez was indicted for participating in a
    large drug conspiracy conducted from 2006 to June 2010.          The
    indictment alleged that Perez conspired with more than seventy
    others to possess with intent to distribute controlled substances
    within one thousand feet of a public housing facility and that he
    1 Appellant's name is spelled "Perez-Cubertier" on the cover
    page of his own brief and on the district court docket, although
    it is spelled "Perez-Couvertier" on his request for appointment of
    counsel on appeal and on the appellate docket and "Perez-
    Coubertier" at several points in the body of his brief. For the
    purposes of this opinion, we adopt the spelling of appellant's
    name reflected on the district court's docket.
    - 2 -
    committed four counts of possessing with intent to distribute
    controlled substances in the same area.
    Within two weeks after the grand jury indicted Perez, a
    cooperating witness notified Perez that he had been charged in the
    indictment.2       Perez did not contact any law enforcement officers
    and he did not hear from any law enforcement officers about the
    charges until he was arrested in New York in 2014.
    Before his trial, Perez filed a motion in limine seeking
    to exclude video evidence of the murders of two co-conspirators,
    "Shaggy" and "Papito," under Federal Rules of Evidence 404(b) and
    403.       The district court denied the motion.
    At Perez's trial, in which he was the sole defendant,
    the government presented evidence that, from 2006 to 2010, members
    of a drug trafficking organization called "La ONU" controlled drug
    transactions      at   the    San   Martin   Public   Housing   Project   ("San
    Martin") in San Juan, Puerto Rico.                According to government
    witnesses, Perez served as a La ONU drug-point owner in San Martin
    beginning in 2006.           Drug-point owners arranged for drugs to be
    supplied to runners for delivery to drug points where the drugs
    2
    Maria Lopez-Calderon, the cooperating witness, testified
    that she informed Perez of the charge against him sometime between
    the return of the indictment (on June 10, 2010) and her arrest (on
    June 14, 2010). In his reply brief, Perez challenges the veracity
    of Lopez-Calderon's testimony, but, as described infra note 9, the
    record does not support such a challenge.
    - 3 -
    were sold.      Witnesses testified that, as a drug-point owner, Perez
    attended members-only meetings of La ONU.              A drug ledger seized in
    2008 listed Perez by a nickname, "Gamito," and indicated that he
    had retrieved twenty dollars from one of La ONU's drug points.3
    Video       evidence   showed      Perez   speaking    with     members    of     the
    organization, including La ONU leaders Shaggy and Papito, near a
    drug point in San Martin in October 2008.              One cooperating witness
    testified that anyone attending the meeting shown in the video
    would have been a member of La ONU.
    Although the government did not charge Perez as an
    enforcer -- that is, a La ONU member tasked with "possess[ing],
    carry[ing], brandish[ing], us[ing], and discharg[ing] firearms to
    protect      the   leaders   and    members"    of    the   organization     --    it
    presented evidence showing that Perez carried firearms as a part
    of his role in the conspiracy.             Witnesses also testified that he
    was present during shootouts with rival drug organizations and
    dealers.
    Government     witnesses     testified    that,    in   late      2008,
    another drug-point owner killed Perez's brother, who had also been
    involved in La ONU.          Afterward, Perez told a co-conspirator that
    he "was going to go for a while."              In February 2009, Perez moved
    3
    Perez testified that the handwriting on the ledger did not
    say "Gamito," but because we recite the facts in the light most
    favorable to the jury's verdict, we adopt the description provided
    by the government witness. See 
    Lowe, 145 F.3d at 47-48
    .
    - 4 -
    to New York, purportedly due to both concerns for his own safety
    and the medical needs of his son, who suffers from cerebral palsy
    and Dandy Walker Syndrome.
    The government also presented evidence that, in June
    2009, a La ONU member murdered Shaggy and Papito at the request of
    a La ONU leader, "Pitufo," who had learned that Shaggy and Papito
    were planning to kill him.        The government attempted to introduce
    a video of the murders, but Perez, renewing his pretrial motion in
    limine,   objected   to   the    admission     of   the   video   but   not   the
    testimony about the murders.            The district court reversed its
    earlier ruling, prohibiting presentation of the video but allowing
    testimony regarding the murders.
    Perez   testified     in    his    defense     that    he    never
    participated in La ONU, let alone served as a drug-point owner.
    He admitted, however, that he had previously participated in a
    drug conspiracy in the years 2000 to 2001; his daughter and brother
    lived in San Martin during the relevant period; he knew about the
    drug conspiracy run by La ONU; his nickname was Gamito; and he was
    close friends with Shaggy and Papito, whom he knew to be leaders
    in La ONU.
    The jury returned a guilty verdict as to all five counts
    and Perez timely appealed. He now argues that, because he withdrew
    from the conspiracy at the end of 2008, the district court should
    have excluded evidence of the conspiracy's activities occurring
    - 5 -
    afterward or, alternatively, instructed the jury to ignore such
    evidence.   Further, he contends that the district court improperly
    admitted evidence of the murders as well as other evidence of La
    ONU members' violent acts, as such evidence was barred by Federal
    Rules of Evidence 404(b) and 403.       Finally, he asserts that the
    four-and-a-half-year delay between his June 2010 indictment and
    December 2014 arrest violated his Sixth Amendment right to a speedy
    trial.
    II.
    We first address Perez's claim that the district court
    should have excluded evidence of the conspiracy's activities after
    2008 or instructed the jury to ignore such evidence.      In essence,
    Perez asserts that, because he withdrew from the conspiracy "at
    least by the end of 2008," the post-2008 evidence was irrelevant
    as to the charges against him or, at least, "highly prejudicial."4
    Because Perez neither objected to the admission of the post-2008
    evidence    based   on   withdrawal,    nor   requested   a   limiting
    instruction,5 our review is for plain error.       See Fed. R. Evid.
    4 Perez does not identify a specific evidentiary rule in
    arguing that the post-2008 evidence was inadmissible or should
    have been accompanied by limiting instructions. Without deciding
    whether this omission waives the argument, we assume that Perez's
    claim concerns the requirements of Federal Rules of Evidence 402
    and 403, which provide for the exclusion of evidence when it is
    irrelevant or its probative value is "substantially outweighed"
    by, inter alia, the danger of unfair prejudice.
    5   Perez invokes the notion of withdrawal solely to support
    - 6 -
    103(e); United States v. Gomez, 
    255 F.3d 31
    , 37 (1st Cir. 2001).
    To establish plain error, Perez "must show '(1) that an error
    occurred (2) which was clear or obvious and which not only (3)
    affected    the   defendant's      substantial   rights,   but   also   (4)
    seriously impaired the fairness, integrity, or public reputation
    of judicial proceedings.'"         United States v. Williams, 
    717 F.3d 35
    , 42 (1st Cir. 2013) (quoting United States v. Duarte, 
    246 F.3d 56
    , 60 (1st Cir. 2001)).
    Perez has not met this standard. We may find plain error
    only if the record so clearly showed Perez's withdrawal from the
    conspiracy by 2008 that it was obvious error for the district court
    to allow the jury to consider, without limitation, evidence of the
    conspiracy's post-2008 criminal activity.              In support of his
    argument,   Perez   notes   that    the   government   offered   no   direct
    evidence that he engaged in the conspiracy after 2008, and, indeed,
    he left for New York in early 2009.
    But "[m]ere cessation of activity in furtherance of [a]
    conspiracy does not constitute withdrawal."             United States v.
    Ciresi, 
    697 F.3d 19
    , 27 (1st Cir. 2012) (first alteration in
    his evidentiary argument that the district court should have
    excluded the post-2008 evidence or instructed the jury to disregard
    it. He did not argue in the district court, and does not argue on
    appeal, that the evidence presented at trial was insufficient to
    support findings of guilt on the charges against him because he
    had withdrawn from the conspiracy.      We therefore address his
    argument solely as an evidentiary matter.
    - 7 -
    original) (quoting United States v. Juodakis, 
    834 F.2d 1099
    , 1102
    (1st Cir. 1987) (per curiam)).            To prove withdrawal, the defendant
    ordinarily       must    present      "evidence      that     [he]    confessed      his
    involvement in the conspiracy to the government or announced his
    withdrawal to his coconspirators."                United States v. George, 
    761 F.3d 42
    , 55 (1st Cir. 2014).             The record here, at best, suggests
    the "[m]ere cessation" of Perez's active participation in an
    ongoing conspiracy. 
    Ciresi, 697 F.3d at 27
    ; see also United States
    v. Munoz, 
    36 F.3d 1229
    , 1234 (1st Cir. 1994) (holding that lack of
    evidence    of    defendant's        activities      during    last    two   weeks    of
    conspiracy       did    not   demonstrate      withdrawal       from    conspiracy);
    
    George, 761 F.3d at 55-56
    (concluding that admission of co-
    conspirator's statement was not clear error because defendant's
    cessation    of    activity     on    behalf    of    conspiracy       "constitute[d]
    inaction rather than affirmative steps to distance himself from
    his prior involvement" (quoting United States v. Guevara, 
    706 F.3d 38
    , 46 n.9 (1st Cir. 2013))).
    Even if Perez's relocation to New York removed him from
    day-to-day collaboration with others involved in the conspiracy,
    there is no evidence that he communicated "to his co-conspirators
    that he ha[d] abandoned the [conspiracy] and its goals," 
    Juodakis, 834 F.2d at 1102
    .         In fact, Perez himself notes that some of his
    co-conspirators understood that his safety concerns, rather than
    a repudiation of the conspiracy, motivated the move.
    - 8 -
    In sum, given the absence of evidence showing that Perez
    had accomplished a withdrawal from the conspiracy, the district
    court's decision to admit the post-2008 evidence, and later not
    instruct the jury to ignore it, was not plain error.
    III.
    Perez next contends that the district court improperly
    admitted evidence of his co-conspirators' violent acts, which he
    claims was inadmissible under Rules 404(b) and 403.         According to
    Perez, the district court should have excluded the testimony
    related   to   Shaggy   and   Papito's    murders   as   well   as   a   co-
    conspirator's statement that, to join La ONU, potential members
    were required to kill someone.6
    6 Perez also purports to challenge the admission of "[o]ther
    prejudicial testimony" related to "enemy competitors coming into
    the projects that would be fired at or beaten up; that [two co-
    conspirators] gave orders to have their competitors killed; [and
    that] members of the organization would ride in cars and have
    shootouts with people who were their enemies when there were
    battles over the drug points," but he fails to discuss his
    objections to this evidence with any particularity.         Perez's
    cursory discussion of this evidence, coupled with his failure to
    identify relevant portions of the trial transcript, "'hamstrings'
    our ability to review the issues intelligently." González-Ríos v.
    Hewlett Packard PR Co., 
    749 F.3d 15
    , 20 (1st Cir. 2014) (alteration
    omitted) (quoting Reyes-Garcia v. Rodriguez & Del Valle, Inc., 
    82 F.3d 11
    , 15 (1st Cir. 1996)). We therefore do not reach Perez's
    challenge to the admission of the "[o]ther prejudicial testimony"
    his brief references. See United States v. Zannino, 
    895 F.2d 1
    ,
    17 (1st Cir. 1990) (noting "settled appellate rule that issues
    adverted to in a perfunctory manner, unaccompanied by some effort
    at developed argumentation, are deemed waived").
    - 9 -
    Perez forfeited his objection to the admission of the
    murder-related testimony and waived his objection to the admission
    of the co-conspirator's statement.                As for the murders of Shaggy
    and Papito, the record reveals that although Perez's counsel
    renewed her objection to the video of the murders, she did not
    object to testimony about the murders.                Indeed, in excluding the
    video, the district court stated, "I don't think [the government]
    need[s] the video . . . . [The witness] can testify--," at which
    point Perez's counsel interjected, "[t]hat they were killed and
    whatever on whatever date."             As for the testimony about having to
    kill someone to join La ONU, not only did Perez's counsel fail to
    object to the abbreviated testimony on direct examination, but she
    also re-elicited the testimony during her cross-examination, thus
    waiving any challenge to its admission.7                     See United States v.
    Reda,       
    787 F.3d 625
    ,   630   (1st   Cir.   2015)    ("In   this   circuit,
    7
    If Perez's counsel had elicited the testimony on cross-
    examination to undermine its veracity, we might have a different
    view about the waiver issue. Indeed, where unfavorable testimony
    is first elicited on direct examination, frequently that testimony
    will need to be brought up again on cross-examination to recast it
    in a more favorable light. However, that was not the case here.
    The mention of the requirement to kill someone on direct was cut
    off by the prosecutor, and the cross-examination testimony called
    greater attention to it. Specifically, when the prosecutor asked
    what aspiring drug-point owners had to do, Lopez-Calderon
    answered, "[D]ifferent things. If they had to have somebody
    killed--." The prosecutor did not explore the issue further, but
    Perez's counsel asked Lopez-Calderon on cross-examination whether
    one of the jobs a person would have to do to become a drug-point
    owner "would be to have somebody killed."           Lopez-Calderon
    responded, "[o]n occasions, yes."
    - 10 -
    'ordinarily, a party who elicits evidence would waive any claim
    that its admission was error.'" (alteration omitted) (quoting
    United States v. Harris, 
    660 F.3d 47
    , 52 (1st Cir. 2011)).       We
    accordingly limit our inquiry to whether the district court plainly
    erred in admitting the murder-related testimony. See United States
    v. Flemmi, 
    402 F.3d 79
    , 86 (1st Cir. 2005).
    The district court did not plainly err in admitting the
    murder-related testimony because neither Rule 404(b) nor Rule 403
    indisputably barred such evidence.       Rule 404(b) prohibits the
    admission of evidence of "crime[s], wrong[s], or other act[s]"
    offered to prove a person's character.     Fed. R. Evid. 404(b)(1).
    But the rule applies only "to evidence of other bad acts or
    crimes," not to evidence of the crime charged.     United States v.
    Arboleda, 
    929 F.2d 858
    , 866 (1st Cir. 1991).      Thus, in another
    drug conspiracy case, we upheld against a preserved challenge the
    admission of evidence of an uncharged murder committed by a co-
    conspirator.   See United States v. Ofray-Campos, 
    534 F.3d 1
    , 35
    (1st Cir. 2008).   There, we explained that, because the indictment
    charged the co-conspirator as "an enforcer" or "hit man" for the
    conspiracy, the evidence of the murder provided "direct proof of
    the means used to carry out the conspiracy," rather than proof of
    a distinct bad act falling within the ambit of Rule 404(b).
    Id. Other circuits
    have likewise upheld against preserved challenges
    the admission of evidence of violent conduct as direct proof of a
    - 11 -
    drug conspiracy.   See, e.g., United States v. McGill, 
    815 F.3d 846
    , 881-82 (D.C. Cir. 2016) (upholding the admission of evidence
    of uncharged assaults and attempted murder as direct proof of a
    narcotics distribution conspiracy, as the charged conspiracy's
    "broad scope" encompassed violent acts undertaken to, among other
    things, "enforc[e] internal discipline").
    There is, at best for Perez, "a reasonable dispute" as
    to whether the testimony about Shaggy and Papito's murders was
    direct evidence of the charged conspiracy, and that "devastates
    his position" on plain error review.    See United States v. Jones,
    
    748 F.3d 64
    , 70 (1st Cir. 2014).     Here, as in Ofray-Campos, the
    charged conspiracy's goal was drug distribution, but the alleged
    means by which members pursued that goal were violent.    According
    to the indictment, La ONU members "use[d] force, violence, and
    intimidation in order to . . . discipline members of their own
    drug trafficking organization."   In particular, leaders authorized
    disciplinary action and other members carried out those orders.
    Pitufo was a leader of La ONU at the time that he ordered the
    murders of Shaggy and Papito.8    As such, testimony about Pitufo's
    order and its execution could reasonably be viewed as offering
    8The indictment refers to two individuals nicknamed "Pitufo,"
    one labeled as a leader and the other as an enforcer. Although
    neither party makes clear which Pitufo killed Shaggy and Papito,
    Perez's briefing indicates that the Pitufo who ordered the murders
    was a leader at the time he ordered the murders.
    - 12 -
    "direct proof of the means used to carry out the conspiracy" and
    illustrating the conspiracy's internal systems of discipline.   See
    
    Ofray-Campos, 534 F.3d at 35
    ; see also 
    McGill, 815 F.3d at 881
    -
    82.   Rule 404(b) thus did not indisputably apply to, let alone
    bar, the testimony about Shaggy and Papito's murders, so the
    district court did not plainly err with respect to Rule 404(b) in
    admitting the testimony.
    Nor did the admission of the murder-related testimony
    constitute plain error under Rule 403, which permits courts to
    exclude relevant evidence if its probative value is substantially
    outweighed by, among other things, a danger of unfair prejudice.
    See Fed. R. Evid. 403.     Regardless of the standard of review, we
    review a district court's Rule 403 ruling "from the vista of a
    cold appellate record" and thus reverse such rulings "only rarely
    and in extraordinarily compelling circumstances."     United States
    v. Vázquez-Larrauri, 
    778 F.3d 276
    , 288 (1st Cir. 2015) (alteration
    omitted) (quoting United States v. Vizcarrondo-Casanova, 
    763 F.3d 89
    , 94 (1st Cir. 2014)); see also United States v. Rodriguez-
    Estrada, 
    877 F.2d 153
    , 156 (1st Cir. 1989) ("When all is said and
    done, the district court must be ceded considerable latitude in
    steadying the balance which Rule 403 demands.").
    No such circumstances are present here.    Concerns about
    unfair prejudice arise when evidence "invites the jury to render
    a verdict on an improper emotional basis" or when the evidence is
    - 13 -
    so "shocking or heinous" that it is "likely to inflame the jury."
    See United States v. Laureano-Pérez, 
    797 F.3d 45
    , 63 (1st Cir.
    2015) (quoting United States v. Varoudakis, 
    233 F.3d 113
    , 122 (1st
    Cir. 2000)).     The testimony challenged here does not approach this
    standard: the government aptly characterizes the testimony as
    lacking "any detail" regarding the murders.           Indeed, Perez neither
    contests this portrayal nor cites to the relevant portion of the
    transcript.     See United States v. Rivera Calderón, 
    578 F.3d 78
    , 98
    (1st Cir. 2009) (finding no error in admission of testimony
    describing uncharged murders "matter-of-factly, . . . leaving out
    graphic details" in a drug conspiracy trial); 
    Vázquez-Larrauri, 778 F.3d at 288-89
    (holding that district court did not plainly
    err or abuse its discretion in admitting testimony that was not
    "overly graphic" about an uncharged murder in a drug conspiracy
    case).   The district court thus did not plainly err under either
    Rule 404(b) or Rule 403 in admitting the testimony.
    IV.
    Last, Perez insists that the government violated his
    Sixth Amendment right to a speedy trial by arresting him five years
    after the grand jury indicted him.          The parties agree that Perez
    did not preserve this argument and that this court therefore
    reviews his claim for plain error.          We accordingly assume without
    deciding that our review is for plain error.                See, e.g., United
    States   v.    Mosteller,   
    741 F.3d 503
    ,   508   n.6   (4th   Cir.   2014)
    - 14 -
    (reviewing constitutional speedy-trial arguments raised for the
    first time on appeal for plain error).
    The Sixth Amendment guarantees that, "[i]n all criminal
    prosecutions, the accused shall enjoy the right to a speedy . . .
    trial."   U.S. Const. amend. VI.         In Barker v. Wingo, 
    407 U.S. 514
    (1972), the Supreme Court established a four-part balancing test
    to determine whether a defendant's constitutional speedy trial
    right has been abridged, requiring assessment of (1) whether delay
    before trial was unusually long; (2) whether the government or the
    defendant   is   more    to   blame   for   that   delay;    (3)   whether   the
    defendant timely asserted his right to a speedy trial; and (4)
    whether he suffered prejudice as a result of the delay.                      See
    Doggett v. United States, 
    505 U.S. 647
    , 651 (1992) (citing 
    Barker, 407 U.S. at 530
    ).       "These factors cannot be plugged into a formula
    that operates with scientific precision[,]" and instead "must be
    considered on a case-by-case basis 'together with such other
    circumstances as may be relevant.'"            United States v. Mala, 
    7 F.3d 1058
    , 1061 (1st Cir. 1993) (quoting 
    Barker, 407 U.S. at 533
    ).
    The district court did not plainly err in permitting the
    government's case to proceed despite the four-and-a-half-year
    delay between Perez's indictment and arrest.                The parties agree
    that the first factor -- the length of the delay -- favors Perez.
    See, e.g., United States v. Handa, 
    892 F.3d 95
    , 101-02 (1st Cir.
    2018) (noting that "[w]hile 'there is no bright-line time limit'"
    - 15 -
    applied in assessing speedy trial violations, "a 'delay of around
    one year is considered presumptively prejudicial'" (alterations
    omitted) (quoting United States v. Irizarry-Colón, 
    848 F.3d 61
    , 68
    (1st Cir. 2017)).
    We assume, favorably to Perez, that the second factor
    --   the    reason   for   the   delay   --   weighs   slightly    against     the
    government. Whereas deliberate delays designed to hamper a defense
    constitute      weighty     evidence     in    favor    of   the       defendant,
    prosecutorial negligence carries less weight in the speedy trial
    analysis.     See United States v. Johnson, 
    579 F.2d 122
    , 123 (1st
    Cir. 1978); cf. 
    Doggett, 505 U.S. at 652-53
    (weighing against the
    government its failure to make any serious efforts to locate
    defendant for six years, even if its "lethargy may have reflected
    no more than [the defendant's] relative unimportance in the world
    of   drug    trafficking").        Perez      has   presented     no   proof   of
    deliberateness in the government's conduct and the government has
    offered no explanation for the period of inactivity between the
    indictment and Perez's arrest.           We decline to decide which party
    bears the burden of persuasion on plain error review and similarly
    refrain from resolving whether silence coupled with a four-and-a-
    half-year delay establishes official negligence under the plain
    error standard.      Cf. 
    Barker, 407 U.S. at 531
    (in addressing speedy
    trial claim de novo, focusing on "the reason the government assigns
    to justify the delay").          Compare United States v. Mensah-Yawson,
    - 16 -
    489    F.    App'x     606,   610-11   (3d   Cir.    2012)    (placing     burden   of
    persuasion for second factor on government on plain error review),
    with United States v. Williams, 
    683 F. App'x 376
    , 384 (6th Cir.
    2017) (determining, on plain error review, that second factor
    favored neither party where "the record before [the court] [was]
    silent as to the reasons for the actual delay," "largely due to
    the fact that [the defendant] did not bring a speedy-trial claim
    at or before trial").             We instead assume, favorably to Perez,
    that this delay resulted from prosecutorial negligence, leading us
    to slightly favor Perez on the second factor.
    But the third factor -- whether the defendant asserted
    his speedy trial right -- significantly undermines Perez's claim.
    His failure to raise his Sixth Amendment claim at any point before
    this    appeal       is   "entitled     to   strong    evidentiary        weight"   in
    determining whether he has been deprived of his constitutional
    rights.      
    Barker, 407 U.S. at 531
    -32.            Although a defendant "has no
    duty to bring himself to trial" and does not waive his Sixth
    Amendment claim by not raising it in district court, he does have
    some responsibility to assert his speedy trial claim.                     See Look v.
    Amaral, 
    725 F.2d 4
    , 6-7 (1st Cir. 1984) (noting that, absent an
    inquiry by the defendant into "the status of the action against
    him,"       the    "circumstances      strongly     suggest   .   .   .    that   [the
    defendant] gambled with his right, hoping . . . that either his
    case would be overlooked or that, unreminded, the [government's]
    - 17 -
    delay would ripen into a period that would improve his chances for
    acquittal    on     [S]ixth   [A]mendment          grounds").      Here,   testimony
    adduced at trial indicates that Perez was aware of the charges
    against him as early as mid-2010,9 yet he apparently made no inquiry
    over the following years.             As such, the third factor counsels
    against finding that he was deprived of his speedy trial rights.
    The fourth factor -- prejudice to the defendant --
    similarly weighs against Perez.                "The prejudice prong seeks to
    protect     three       interests:    avoidance        of   oppressive      pretrial
    incarceration, minimizing anxiety and concern, and limiting the
    possibility that the defense will be impaired."                   United States v.
    Carpenter, 
    781 F.3d 599
    , 614 (1st Cir. 2015).                   "As a general rule,
    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";     however,    such
    9 As noted supra note 2, Perez challenges the veracity of this
    testimony in his reply brief, arguing that "[a] reading of
    Perez'[s] entire testimony reasonably establishes that he had no
    [] knowledge [of the charges]." This argument stands in direct
    tension with Perez's assertion that pre-arrest knowledge of the
    charges caused him anxiety that is cognizable under Barker's
    prejudice   prong.       Moreover,   we   disagree   with   Perez's
    characterization of the record. Perez never testified about the
    alleged conversation in which Lopez-Calderon informed him of the
    charges, and although he did testify that he lived his life openly
    in New York and was not hiding between the time of his indictment
    and arrest, that testimony in no way suggests that he was unaware
    of the charges against him. Thus, Lopez-Calderon's testimony that
    she informed Perez of the charges against him shortly after the
    indictment stands uncontested.
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    prejudice     may   sometimes   be   presumed    "[i]n   aggravated   cases,
    involving grossly excessive delay."           Rashad v. Walsh, 
    300 F.3d 27
    ,
    34 (1st Cir. 2002).
    Here, the only prejudice Perez has alleged is anxiety
    and fear concerning his arrest and the prospect that his arrest
    "would upend his life and that of his family."10          " A defendant must
    struggle to satisfy the prejudice prong after conviction, when two
    of   the    three   factors   relevant   to    the   prejudice   analysis   --
    excessive pre-trial incarceration and impairment of an effective
    defense -- are of little or no relevance."           
    Carpenter, 781 F.3d at 614
    .    Moreover, assertions of apprehension or agitation resulting
    from pre-trial knowledge of the pending charges are not enough;
    rather, the anxiety must become "undue pressure[]" more severe
    than the stress that "normally attends the initiation and pendency
    10
    Perez claims that "witnesses could have easily become
    unavailable to him, memories could have been impaired due to the
    passage of time or evidence can become unavailable." But, because
    we do not presume prejudice on plain error review of a Sixth
    Amendment claim, we conclude that such hypothetical damage to
    Perez's defense does not suffice. Cf. United States v. Olano, 
    507 U.S. 725
    , 739-41 (1993) (finding that defendants failed to meet
    their burden to show prejudice under the plain error test where
    they made "no specific showing" of harm).      The outcome of the
    speedy trial analysis is likewise unchanged by two arguments that
    Perez raises for the first time in his reply brief: that his young,
    disabled son will be harmed by Perez's imprisonment and that he
    might have been able to secure a plea deal if arrested promptly.
    Because these arguments made their debut in his reply brief, we
    deem them waived. See Sparkle Hill, Inc. v. Interstate Mat Corp.,
    
    788 F.3d 25
    , 29 (1st Cir. 2015) ("[W]e do not consider arguments
    for reversing a decision of a district court when the argument is
    not raised in a party's opening brief.").
    - 19 -
    of criminal charges."   United States v. Henson, 
    945 F.2d 430
    , 438
    (1st Cir. 1991).    While we do not doubt that Perez's fears were
    acute, he fails to offer any way in which they constituted an
    "undue pressure" or were more severe than the fears that are
    endemic to criminal prosecutions.     See 
    Carpenter, 781 F.3d at 615
    ("While [appellant] argues convincingly that he has suffered great
    stress throughout the proceedings, he does not demonstrate why his
    anxiety was greater than that suffered by many other defendants,
    other than that it continued longer.").     As such, the final factor
    of the speedy trial balancing test militates against reversal.
    Taken    together,   the   four   Barker   factors   do   not
    indisputably establish that the government violated Perez's Sixth
    Amendment speedy trial right.11      See United States v. Rice, 
    746 F.3d 1074
    , 1081-82 (D.C. Cir. 2014) (holding that failure to
    dismiss indictment was not plain error where only some of the
    Barker factors favored defendant).      The district court's failure
    to dismiss the indictment thus did not constitute plain error.12
    11 Perez invites us, in the alternative, to remand his case
    to the district court so that the factors discussed above "can
    fairly be explored." "[N]o decision cited to us" -- indeed, Perez
    cites none in the one sentence he dedicates to his request in his
    opening brief -- "and none of which we are aware, establishes a
    basis" for such an order. See Cheshire Med. Ctr. v. W.R. Grace &
    Co., 
    49 F.3d 26
    , 31 (1st Cir. 1995). We therefore decline his
    request.
    12Both with respect to his speedy trial claim and at various
    points in his evidentiary objections, Perez argues that his trial
    counsel's failure to raise those issues demonstrates that he
    - 20 -
    See 
    Jones, 748 F.3d at 70
    ("[A]n error open to reasonable dispute
    is not plain error.").
    V.
    For the foregoing reasons, we affirm Perez's conviction
    and sentence.   So ordered.
    received constitutionally ineffective assistance of counsel. His
    contentions regarding his attorney's deficiencies are far from
    clear, however.    Even if Perez articulated his argument more
    clearly, we would find no reason to review his claim here. As we
    recently reiterated:
    "We have held with a regularity bordering on
    the monotonous that fact-specific claims of
    ineffective assistance cannot make their debut
    on direct review of criminal convictions, but,
    rather, must originally be presented to, and
    acted upon by, the trial court." In adopting
    this prudential praxis, we have reasoned that
    "such claims typically require the resolution
    of factual issues that cannot efficaciously be
    addressed in the first instance by an
    appellate tribunal." . . . Unless "the
    critical facts are not genuinely in dispute
    and the record is sufficiently developed to
    allow reasoned consideration" of a claim of
    ineffective assistance, a criminal defendant
    who wishes to pursue such a claim must do so
    in a collateral proceeding.
    United States v. Santana-Dones, 
    920 F.3d 70
    , 82 (1st Cir. 2019)
    (internal citations omitted) (first quoting United States v. Mala,
    
    7 F.3d 1058
    , 1063 (1st Cir. 1993); then quoting United States v.
    Natanel, 
    938 F.2d 302
    , 309 (1st Cir. 1991)).          The limited
    development of this issue in Perez's brief, and his failure to
    point to specific portions of the record that support his
    ineffective assistance of counsel claim, result in inadequate
    detail to evaluate why his trial counsel made or did not make
    certain decisions.
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