Contestación de La Fiscalía Federal

Case: 22-1421 Document: 00117917903 Page: 1 Date Filed: 09/06/2022 Entry ID: 6518146
No. 22-1421
United States Court of Appeals

for the First Circuit
____________________
UNITED STATES,
APPELLEE,
v.
RAFAEL PINA-NIEVES,
DEFENDANT-APPELLANT
____________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF PUERTO RICO, D. CT. NO. 3:20-CR-258 (HON. FRANCISCO BESOSA)
____________________
ANSWERING BRIEF FOR THE UNITED STATES

____________________
W. STEPHEN MULDROW KENNETH A. POLITE, JR.

United States Attorney Assistant Attorney General
District of Puerto Rico
LISA H. MILLER
MARIANA E. BAUZÁ-ALMONTE Deputy Assistant Attorney General
Assistant United States Attorney
Appellate Chief KEVIN BARBER
District of Puerto Rico U.S. Department of Justice
Criminal Division, Appellate Section
GREGORY CONNER 950 Pennsylvania Avenue, N.W.
Assistant United States Attorney Washington, DC 20530
District of Puerto Rico (202) 616-2417
[email protected]
TABLE OF CONTENTS
TABLE OF CONTENTS ....................................................................................... i
TABLE OF AUTHORITIES .............................................................................. iv
STATEMENT OF JURISDICTION ...................................................................1
STATEMENT OF THE ISSUES ........................................................................1
STATEMENT OF THE CASE ............................................................................2
I. Procedural History ............................................................................ 2
II. Factual Background .......................................................................... 2
A. Recovery Of Firearms And Ammunition At Pina’s

House......................................................................................... 2
B. Trial Proceedings ..................................................................... 6
III. Rulings Under Review ...................................................................... 8
SUMMARY OF ARGUMENT ..............................................................................8
ARGUMENT .........................................................................................................12
I. THE DISTRICT COURT PROPERLY ADMITTED

THE INCULPATORY STATEMENT IN PINA’S
MOTION TO DISMISS THE INDICTMENT ............................12
A. Background .............................................................................12
B. Standard Of Review................................................................16
C. The “Resigned To Prison” Statement Was

Admissible As A Party-Opponent Admission......................17
1. The Statement Satisfied Rule 801 And

Precedents Applying It To Attorney
Admissions ....................................................................17
i
2. Pina’s Objections To Applying Rule 801 Are

Meritless ........................................................................22
D. Any Error In Admitting The Statement Was

Harmless ..................................................................................29
1. The Government’s Case Against Pina Was

Overwhelming ...............................................................29
2. Pina’s Assertions Of Prejudice Are Meritless ..........33
II. ADMITTING THE STATEMENT FROM PINA’S

MOTION TO DISMISS DID NOT RAISE A SIXTH
AMENDMENT PROBLEM ..........................................................36
A. The Ineffective-Assistance Claim Should Not Be

Considered On Direct Review ...............................................36
B. Pina’s Sixth Amendment Rights Were Not Violated .........38
1. Attorney Rebollo Was Not An Unsworn

Witness Against Pina ...................................................41
2. There Was No Need For Rebollo To Testify ............43
3. Pina Cannot Show An Adverse Effect On

Rebollo’s Performance .................................................46
III. SUFFICIENT EVIDENCE SUPPORTED THE JURY’S

VERDICT ON THE MACHINEGUN CHARGE ......................47
A. Background .............................................................................47
C. The Evidence Established That Pina Knew The

Glock Was A Machinegun ......................................................48
ii
IV. THE DISTRICT COURT DID NOT ABUSE ITS

DISCRETION IN EXCLUDING THE MIAMI
REALTOR’S TESTIMONY ...........................................................52
A. Background .............................................................................52
C. Much Of Millman’s Testimony Would Have Been

Irrelevant .................................................................................54
D. The Remainder Of Millman’s Testimony Would Have

Been Cumulative .....................................................................56
E. Any Error In Excluding Millman’s Testimony Was

Harmless ..................................................................................59
CONCLUSION......................................................................................................61
iii
TABLE OF AUTHORITIES
Cases
Berger v. United States,

295 U.S. 78 (1935)..............................................................................................10
Black v. Cutter Labs.,

351 U.S. 292 (1956)............................................................................................59
Blackburn v. United Parcel Serv., Inc.,

179 F.3d 81 (3d Cir. 1999) ................................................................................24
Bourjaily v. United States,

483 U.S. 171 (1987)............................................................................................19
Brookover v. Mary Hitchcock Mem’l Hosp.,

893 F.2d 411 (1st Cir. 1990) .............................................................................24
Candelario Del Moral v. UBS Fin. Servs. Inc.,

699 F.3d 93 (1st Cir. 2012) ...............................................................................60
Cont’l Ore Co. v. Union Carbide & Carbon Corp.,

370 U.S. 690 (1962)............................................................................................55
Conway v. Electro Switch Corp.,

825 F.2d 593 (1st Cir. 1987) .............................................................................53
Cummings v. Standard Reg. Co.,

265 F.3d 56 (1st Cir. 2001) .........................................................................53, 55
Cuyler v. Sullivan,
446 U.S. 335 (1980)......................................................................................39, 40
DiBenedetto v. Hall,
272 F.3d 1 (1st Cir. 2001) .................................................................................54
Fonten Corp. v. Ocean Spray Cranberries, Inc.,

469 F.3d 18 (1st Cir. 2006) .........................................................................41, 43
iv
Gov’t of V.I. v. Zepp,

748 F.2d 125 (3d Cir. 1984) ........................................................................37, 42
Hamling v. United States,

418 U.S. 87 (1974)..............................................................................................56
In re Sealed Case,
105 F.3d 1460 (D.C. Cir. 1997).........................................................................35
Jewell v. Life Ins. Co. of N. Am.,

508 F.3d 1303 (10th Cir. 2007) .........................................................................58
Kirby v. Illinois,
406 U.S. 682 (1972)............................................................................................13
Liteky v. United States,

510 U.S. 540 (1994)............................................................................................60
Lopez-Nieves v. United States,

917 F.2d 645 (1st Cir. 1990) .............................................................................40
Mister v. Ne. Ill. Commuter R.R. Corp.,

571 F.3d 696 (7th Cir. 2009) .............................................................................24
Nevada v. Jackson,
569 U.S. 505 (2013)............................................................................................54
Oscanyan v. Arms Co.,

103 U.S. 261 (1880)......................................................................................17, 21
Paul Revere Variable Annuity Ins. Co. v. Zang,

248 F.3d 1 (1st Cir. 2001) .................................................................................28
Perez v. Volvo Car Corp.,

247 F.3d 303 (1st Cir. 2001) .............................................................................58
Pilgrim v. Trs. of Tufts Coll.,

118 F.3d 864 (1st Cir. 1997), abrogated on other grounds by Nat’l
R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) .................................24
v
Purgess v. Sharrock,
33 F.3d 134 (2d Cir. 1994) .................................................................... 20, 42, 43
Sexual Minorities Uganda v. Lively,

899 F.3d 24 (1st Cir. 2018) ...............................................................................59
Staples v. United States,

511 U.S. 600 (1994)................................................................................ 47, 48, 49
Tome v. United States,

513 U.S. 150 (1995)............................................................................................23
Totten v. Merkle,
137 F.3d 1172 (9th Cir. 1998) ...........................................................................17
United States v. Allen,

990 F.2d 667 (1st Cir. 1993) .............................................................................31
United States v. Angiulo,

897 F.2d 1169 (1st Cir. 1990) .....................................................................44, 45
United States v. Arnott,

758 F.3d 40 (1st Cir. 2014) ...............................................................................56
United States v. Arrington,

867 F.2d 122 (2d Cir. 1989) ..............................................................................20
United States v. Battinelli,

2 F. App’x 14 (1st Cir. 2001) ............................................................................32
United States v. Blood,

806 F.2d 1218 (4th Cir. 1986) ...........................................................................25
United States v. Cardona-Vicenty,

842 F.3d 766 (1st Cir. 2016) ................................................................. 38, 39, 40
United States v. Cody,

498 F.3d 582 (6th Cir. 2007) .............................................................................14
vi
United States v. Dalton,

960 F.2d 121 (10th Cir. 1992) ...........................................................................51
United States v. DeCologero,

530 F.3d 36 (1st Cir. 2012) ................................................................... 46, 47, 54
United States v. Doe,

860 F.2d 488 (1st Cir. 1988) .............................................................................36
United States v. Dunfee,

821 F.3d 120 (1st Cir. 2016) .............................................................................39
United States v. Ellison,

798 F.2d 1102 (7th Cir. 1986) ...........................................................................42
United States v. Garcia-Rodriguez,

215 F.3d 1312 (tbl.), 2000 WL 764896 (1st Cir. 2000) ...................................38
United States v. Giambro,

544 F.3d 26 (1st Cir. 2008) .........................................................................49, 50
United States v. Harris,

914 F.2d 927 (7th Cir. 1990) ................................................................. 16, 20, 28
United States v. Hernandez-Lebron,

23 F.3d 600 (1st Cir. 1994) ...............................................................................39
United States v. Jung,

473 F.3d 837 (7th Cir. 2007) ................................................................. 21, 32, 42
United States v. Kanodia,

943 F.3d 499 (1st Cir. 2019) ................................................................. 47, 48, 51
United States v. Kattar,

840 F.2d 118 (1st Cir. 1988) .............................................................................27
United States v. Kliti,

156 F.3d 150 (2d Cir. 1998) ..............................................................................45
vii
United States v. LaRouche Campaign,

695 F. Supp. 1290 (D. Mass. 1988) ..................................................................44
United States v. Laureano-Pérez,

797 F.3d 45 (1st Cir. 2015) ...............................................................................52
United States v. Locascio,

6 F.3d 924 (2d Cir. 2006) ............................................................................41, 42
United States v. Lombard,

72 F.3d 170 (1st Cir. 1995) ............................................................. 18, 19, 21, 32
United States v. Maldonado-García,

446 F.3d 227 (1st Cir. 2006) .............................................................................53
United States v. Maldonado-Peña,

4 F.4th 1 (1st Cir. 2021) ....................................................................................57
United States v. McDonough,

727 F.3d 143 (1st Cir. 2013) .............................................................................59
United States v. McKeon,

738 F.2d 26 (2d Cir. 1984) ....................................................................... passim
United States v. McLean,

409 F.3d 492 (1st Cir. 2005) .......................................................................31, 35
United States v. McPhail,

831 F.3d 1 (1st Cir. 2016) .................................................................................48
United States v. Michel,

446 F.3d 1122 (10th Cir. 2006) .........................................................................50
United States v. Miller,

911 F.3d 638 (1st Cir. 2018) .............................................................................37
United States v. Nersesian,

824 F.2d 1294 (2d Cir. 1987) ............................................................................30
viii
United States v. Newman,

49 F.3d 1 (1st Cir. 1995) ...................................................................................60
United States v. Nieves-Castaño,

480 F.3d 597 (1st Cir. 2007) ........................................................... 47, 48, 49, 50
United States v. O’Connor,

433 F.2d 752 (1st Cir. 1970) .............................................................................18
United States v. Pena,

24 F.4th 46 (1st Cir. 2022) ................................................................................54
United States v. Ponzo,

853 F.3d 558 (1st Cir. 2017) .............................................................................46
United States v. Portela,

167 F.3d 687 (1st Cir. 1999) .............................................................................30
United States v. Ridolfi,

768 F.3d 57 (1st Cir. 2014) ...............................................................................31
United States v. Rivera-Carrasquillo,

933 F.3d 33 (1st Cir. 2019) ...............................................................................29
United States v. Sabean,

885 F.3d 27 (1st Cir. 2018) .........................................................................56, 58
United States v. Shaw,

670 F.3d 360 (1st Cir. 2012) .......................................................................49, 50
United States v. Southland Corp.,

760 F.2d 1366 (2d Cir. 1985) ............................................................................24
United States v. Staveley,

43 F.4th 9 (1st Cir. 2022) ............................................................................36, 37
United States v. Tanco-Baez,

942 F.3d 7 (1st Cir. 2019) ..................................................................... 29, 34, 54
ix
United States v. Valencia,

826 F.2d 169 (2d Cir. 1987) .................................................................. 16, 19, 21
United States v. Velazquez-Fontanez,

6 F.4th 205 (1st Cir. 2021) ................................................................................16
United States v. Zavala Maldonado,

23 F.3d 4 (1st Cir. 1994) .............................................................................31, 34
Williams v. Union Carbide Corp.,

790 F.2d 552 (6th Cir. 1986) .............................................................................17
Statutes
18 U.S.C. § 922 ...................................................................................................2, 48
18 U.S.C. § 924 .........................................................................................................2
18 U.S.C. § 3231 .......................................................................................................1
26 U.S.C. § 5845 .....................................................................................................48
28 U.S.C. § 1291 .......................................................................................................1
Other Authorities
2 McCormick on Evidence (8th ed. 2022) .....................................................22, 24
Model Rules of Professional Conduct .................................................................45
Rules
Fed. R. Crim. P. 52 ................................................................................................29
Fed. R. Evid. 401....................................................................................................54
Fed. R. Evid. 403..............................................................................................27, 56
Fed. R. Evid. 413....................................................................................................19
x
Fed. R. Evid. 414....................................................................................................19
Fed. R. Evid. 415....................................................................................................19
Fed. R. Evid. 801........................................................................................... passim
xi
STATEMENT OF JURISDICTION
Defendant-appellant Rafael Pina-Nieves appeals a judgment in a crimi-
nal case in which he was convicted of firearms offenses. The district court (Be-
sosa, J.) had jurisdiction under 18 U.S.C. § 3231. The judgment was entered
on May 24, 2022. Addendum (Add.) 1. Pina filed a timely notice of appeal on
the same day. Appendix (App.) 1133. This Court has jurisdiction under 28
U.S.C. § 1291.
STATEMENT OF THE ISSUES
1. Whether the district court properly admitted at trial a statement
in Pina’s motion to dismiss the indictment tending to show consciousness of
guilt.
2. Whether the district court’s admission of the statement from
Pina’s motion to dismiss violated his Sixth Amendment right to effective assis-
tance of counsel.
3. Whether sufficient evidence supported the jury’s finding that Pina
knew that one of his firearms had the characteristics of a machinegun.
4. Whether the district court abused its discretion in excluding a
realtor’s testimony regarding Pina’s residency.
1
STATEMENT OF THE CASE
I. Procedural History
Following a jury trial, Pina was convicted on one count of possession of
a firearm and ammunition as a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2), and one count of possession of a machinegun, in vi-
olation of 18 U.S.C. §§ 922(o) and 924(a)(2). Add. 1. The district court sen-
tenced him to 41 months of imprisonment, to be followed by three years of
supervised release. Add. 2-3. Pina timely appealed, App. 1133, and moved for
bail, which this Court denied on July 18, 2022.
II. Factual Background
A. Recovery Of Firearms And Ammunition At Pina’s House
Pina is a well-known music producer and owner of several businesses in
Puerto Rico. App. 553-55, 820, 1105. He is also experienced with guns, having
been licensed beginning in 2008 as the owner of ten firearms. App. 682-83, 691-
93, 754. Pina’s firearms license was revoked in 2012, however, App. 682, 754-
55, and in 2015 he was convicted of bank fraud, a felony, App. 79 n.2, 453-54.
The felony conviction rendered him ineligible to possess firearms under fed-
eral law. 18 U.S.C. § 922(g)(1).
In 2020, Pina was under investigation by the FBI’s money-laundering
squad in Puerto Rico. App. 759-62. The FBI obtained a court order to wiretap
2
phone lines used by Pina and Joed Romero Soler, Pina’s employee. App. 347,
554-55, 760-62. On February 6, 2020, the FBI intercepted a call between Pina
and Romero during which they discussed making improvements to a house
Pina owned in Caguas Real, a gated community in Caguas, Puerto Rico, with
an eye toward renting or selling the property. App. 126, 795, 1112-14. Pina
mentioned wanting to store the house’s contents in a warehouse, “polish the
floors,” “fix the fish tank,” and give away a pool table, a treadmill, and perhaps
his children’s bunk beds. App. 1113-15; see also App. 1116-18 (discussing the
disposition of Pina’s bed, furniture, clothes, projector, etc.). Then came the fol-
lowing exchange:
Pina: And what do we do with the safe, motherfucker?

Romero: Bro, right. You have that there built-in. A whole
ordeal, right? No, man, leave it open.
Pina: Man, yes.
Romero: You know, and take out whatever you have…
and, if you have anything… and leave it open be-
hind there so that whoever moves in there will
use it. You know, tell Miguel to reset it. You
know, that, look…
Pina: Nah, nah, bro, I have money and I have all sorts
of things in there: my guns, rifles, bullets.
Romero: Well, exactly, have Miguel take out anything he
needs to take out. You know what you have in
there, right?
Pina: Yes, but no, no… I’m not giving that mother-
fucker anything.
3
Romero: Well, I don’t know… and… and… you know, and

the guns? Give them to Johnny.
Pina: No, because all of that is cuenta loca.
App. 1119. (Cuenta loca literally means “crazy account” and refers to some-
thing that is “off the books” or unregistered. App. 861, 1119.) Pina and Romero
then discussed the difficulty of storing the guns and ammunition in the house
in Ciudad Jardín, Puerto Rico, where Pina resided. App. 256, 1120-22.
The FBI executed a warrant to search Pina’s Caguas Real house on
April 1, 2020. App. 125-26. The house was just as Pina and Romero had de-
scribed it on the February 6 call: agents found a fish tank, bunk beds, a pool
table, a treadmill, and a projector, for example. App. 131, 228, 779-84. A check-
book belonging to Pina was found in the kitchen. App. 228-29. In the master
bedroom, behind a mirror, agents found a hidden room containing two loaded
pistols, 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’s name. App. 140-48, 164-68, 176; see also App.
140, 224-25 (magazine with ammunition found in master bedroom closet). An
agent noticed that one of the pistols, a Glock, had a modification on the back to
enable it to fire automatically. App. 155-56.
4
On the morning of the search, an employee at the company that had in-
stalled Pina’s home security system called him and said the alarm for “zone
25” of the Caguas Real house had been activated. App. 1098; Gov’t Ex. 79A, at
2. Pina asked whether the alarms for zones 24 or 26 had been tripped as well,
and the company said no. App. 1098; Gov’t Ex. 79A, at 2; see also App. 894
(testimony indicating zones 25 and 26 “pertained to the safe”). A neighborhood
patrolman called Pina and said there were “a bunch of FBI” at the house, to
which Pina replied, “Oh shit!” Gov’t Ex. 82A, at 2; see also App. 1098. Pina then
called several people, including Caguas Real security guards, asking them to
check on the house and report on the FBI’s presence. App. 1098; see, e.g., Gov’t
Ex. 83A, at 2 (asking a woman to “[p]ass by there to look and send me photos”
but “don’t stop”). The alarm company called Pina back and told him the “safety
box” had been opened and zone 26 had been activated. Gov’t Ex. 84A, at 1; see
also App. 1098.
After the search, an FBI gun expert examined the Glock and confirmed
that it had been modified at the rear with an external plate or “fin” that ena-
bled it “to continuously fire until the trigger is released or it runs out of am-
munition.” App. 467-68. A fingerprint specialist recovered Pina’s fingerprint
from a box of Winchester ammunition found in the hidden room. App. 216, 298-
5
300, 311. Investigators further found that the Glock and the other gun were
unregistered, App. 751, and that most of the ammunition was compatible with
one of those two firearms or one or more of the ten firearms that Pina was
previously registered to possess, App. 690-716. Pina continued to write checks
after the search that drew on the same account associated with the checkbook
found at the house. App. 660-64.
A federal grand jury indicted Pina on one count of possession of a fire-
arm and ammunition as a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1)
and 924(a)(2), and one count of possession of a machinegun, in violation of 18
U.S.C. §§ 922(o) and 924(a)(2). App. 30-32.
B. Trial Proceedings
On the first day of trial, the government asked the district court to take
judicial notice of a statement from Pina’s pretrial motion to dismiss the indict-
ment as evidence of consciousness of guilt. App. 112. The statement consisted
of the sentence: “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 tre-
mendous advantage to have in plea negotiations.” App. 36. The district court
had already ruled that the statement would be admissible as a party-opponent
6
admission under Federal Rule of Evidence 801. App. 86-88. The court read
the statement to the jury. App. 114-16.
The government proceeded with its case in chief, focusing on the physi-
cal evidence recovered from the Caguas Real house and the intercepted phone
calls. See, e.g., App. 145-78, 776-94. The defense conceded that Pina owned the
house in which the guns and ammunition were found, App. 342, 1032, and the
government called a number of witnesses to testify about the extent of Pina’s
control over the house, see, e.g., App. 445 (testimony that Pina paid off the
mortgage in 2019); App. 610, 619-20, 622-23 (Pina listing the Caguas Real
house as an address on loan forms in 2019); App. 553, 624-31, 669-71 (Pina pay-
ing the Caguas Real house’s utilities and other bills through 2020).
On cross-examination of government witnesses, the defense focused on
showing that Pina no longer lived in the Caguas Real house at the time of the
FBI search. See, e.g., App. 413-16 (discussing Pina’s Florida driver’s license
listing a Miami address); App. 430-32 (discussing Pina’s purchase of a mattress
in 2019 for delivery to the Ciudad Jardín house). The defense successfully re-
quested that the court take judicial notice and inform the jury of a “party ad-
mission” in an FBI agent’s affidavit showing that the FBI knew that Pina “cur-
rently resides at a residence in Ciudad Jardin.” App. 252, 256.
7
The jury returned a guilty verdict on each count of the indictment. App.
1101. The district court sentenced Pina to 41 months of imprisonment, to be
followed by three years of supervised release. Add. 2-3.
III. Rulings Under Review
On appeal, Pina challenges the district court’s admission of the state-
ment from his motion to dismiss the indictment, App. 86-88, 116; the suffi-
ciency of the evidence supporting the jury’s verdict on the machinegun-pos-
session charge, App. 1101; and the district court’s exclusion of Jordan Millman,
a Miami-area realtor, as a witness for the defense, App. 877, 880.
SUMMARY OF ARGUMENT
I. The district court properly admitted into evidence Pina’s statement
in his motion to dismiss that “the government learned” from an informant that
Pina “was resigned to the fact that he would have to spend time in prison.” The
statement was admissible as a party-opponent admission under a straightfor-
ward application of Federal Rule of Evidence 801(d)(2), which has been unan-
imously held to extend to pretrial statements made by attorneys for criminal
defendants. While this Court and others have suggested that Rule 801(d)(2)
should be applied with caution in this context, the statement here raises none
of the concerns that might call for excluding evidence that is subject to the
8
plain terms of the Rule. Pina does not identify a single case in which a court
reversed a conviction based on the improper admission of an attorney’s state-
ment under Rule 801(d)(2).
Although Pina presents an array of arguments for why the statement
was inadmissible, his overarching message is that the government acted im-
properly in obtaining and then using this statement against him as evidence of
consciousness of guilt. That is incorrect. The FBI learned that Pina felt re-
signed to going to prison through legitimate investigation, which he no longer
substantively disputes. On the eve of trial, Pina moved to dismiss the indict-
ment and chose to argue that the FBI’s use of the informant prejudiced him
because the government’s knowledge that he was resigned to going to prison
gave it an advantage in plea negotiations. That argument hinges on the inform-
ant’s report being true, for if Pina had not actually been resigned to conviction,
the information would not have given the government more leverage in nego-
tiations. And because a guilty defendant is at least somewhat more likely than
an innocent one to be resigned to going to prison, the government sought to
introduce the statement from the motion to dismiss at trial as a party-oppo-
nent admission. This was not unfair dealing; it was an exercise of the govern-
ment’s duty to “prosecute with earnestness and vigor.” Berger v. United
9
States, 295 U.S. 78, 88 (1935); see also ibid. (the prosecutor “may strike hard
blows,” just not “foul ones”). Pina himself used the same tactic later in the trial,
deploying an FBI affidavit against the government when it suited his strategic
purposes.
Even if the district court erred in admitting Pina’s statement from his
motion to dismiss, the error was harmless. Overwhelming evidence estab-
lished that Pina constructively possessed the firearms and ammunition recov-
ered from the hidden room at his house in Caguas Real—most notably the
February 6, 2020, phone call in which he explicitly identified the contraband
as his and deliberated about what to do with it. In light of that and the other
conclusive evidence of Pina’s guilt, the government’s limited use of the “re-
signed to prison” statement during closing arguments could not have made a
difference to the verdict.
II. Pina’s claim that admitting the statement violated his right to effec-
tive assistance of counsel is premature, given that he raises factual questions
that the trial record does not resolve, and is otherwise meritless. If Pina were
correct, admitting any criminal defense attorney’s statement against his client
under Rule 801(d)(2) would raise a Sixth Amendment issue, which is not the
case. Admitting the statement did not turn Pina’s attorney into any more of an
10
“unsworn witness” against him than any attorney whose statement is admitted
as a party-opponent admission. Pina’s attorney was able to explain to the jury
his view of the statement without needing to take the stand himself.
III. Pina’s challenge to the sufficiency of the evidence underlying his
conviction for possessing a machinegun is unpersuasive. He argues that there
was insufficient evidence to find that he knew that the Glock pistol had the
characteristics of a machinegun. But a rational jury could easily have con-
cluded otherwise, given that the Glock could fire automatically by virtue of an
externally visible modification; that Pina was experienced with firearms; and
that he was familiar with this particular firearm, which he stored in a hidden
room in a house he owned.
IV. The district court acted within its discretion in excluding the testi-
mony of defense witness Jordan Millman, a Miami realtor. Much of Millman’s
testimony would have been irrelevant, and the rest would have been cumula-
tive. Regardless, even if the district court should have allowed Millman’s tes-
timony, any such error was harmless in light of the overwhelming evidence of
Pina’s guilt—particularly because Millman’s testimony concerned an issue,
Pina’s residency in locations other than the house where the contraband was
found, that the government did not dispute at trial.
11
ARGUMENT
I. THE DISTRICT COURT PROPERLY ADMITTED THE

INCULPATORY STATEMENT IN PINA’S MOTION TO
DISMISS THE INDICTMENT
A. Background
Days before his trial began, Pina moved to dismiss the indictment alleg-
ing “government misconduct.” App. 33-41, 89. The motion stated that a recent
discovery disclosure revealed that “the government placed an informant inside
Mr. Pina-Nieves’ defense camp” in alleged violation of the Sixth Amendment.
App. 34-36. Pina described a report in which the informant told the FBI about
a meeting Pina had on his new yacht, during which he “prepared his family
and associates for the likelihood of his serving time in prison and handed down
his responsibilities to his associates.” App. 36. In claiming that the govern-
ment’s use of the informant harmed him, Pina argued that “[ j]ust 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.” Ibid.; see also App. 37 (“This makes the plea negotiations which
have taken place to date, and any that could have taken place in the future, a
complete sham.”).
12
In response, the government stated that the informant had not reported
any confidential communications between Pina and his attorneys. App. 51; see
also App. 69 (clarifying that the informant was never in contact with Pina after
the indictment); Kirby v. Illinois, 406 U.S. 682, 688 (1972) (plurality opinion)
(Sixth Amendment right to counsel “attaches only at or after the time that
adversary judicial proceedings have been initiated”). The government de-
fended the propriety of the informant’s post-indictment report by noting that
Pina had considered engaging in wrongdoing after being indicted, including
by “looking for an individual who will claim ownership of the firearms and am-
munition” and considering paying a police officer “to run the serial numbers
of the guns in order to see if they are registered to anyone or reported stolen.”
App. 51-52 (emphasis removed).
The government stated its intention to introduce at trial, as a party-op-
ponent admission indicating consciousness of guilt, Pina’s statement in his mo-
tion to dismiss about his being resigned to going to prison. App. 54-56. After
all, Pina’s argument that the informant had prejudiced him was only valid if it
was in fact true that Pina was “resigned” to going to prison; otherwise, the
government would have been laboring under a misimpression during plea ne-
13
gotiations, which would not be an advantage. See App. 54-55 & n.3. And alt-
hough being resigned to going to prison is not conclusive evidence of guilt—as
the district court instructed the jury, App. 969-70—it is relevant, since an in-
nocent defendant is at least somewhat more likely than a guilty one to be con-
fident about avoiding conviction. See United States v. Cody, 498 F.3d 582, 591
(6th Cir. 2007); App. 55.
The district court denied Pina’s motion to dismiss. App. 78-88. The court
accepted the government’s representation that the informant had not been in
contact with Pina or his attorneys after the indictment. App. 82-83. And the
court held that the statement in Pina’s motion to dismiss would be admissible
under Federal Rule of Evidence 801, though it added that Pina would be free
to argue at trial that being “resigned” to going to prison was consistent with
his claim of innocence in light of the high conviction rate in federal criminal
cases. App. 86-88.
As noted above, on the first day of trial, the district court admitted the
statement via judicial notice and read it to the jury. App. 116. Pina’s counsel
claimed that doing so would raise an ineffective-assistance-of-counsel issue,
App. 115, 117, but never sought disqualification or withdrawal as counsel. At
the end of trial, the district court specifically instructed the jury in connection
14
with the statement. It explained that “[i]f you believe that [Pina] was resigned
to spend time in prison,” then that “may indicate that he thought he was
guilty.” App. 969. “On the other hand,” the court said, “sometimes an innocent
person may resign him or herself to spend time in prison for some other rea-
son.” App. 969-70. In its closing argument, the government argued that the
statement was “evidence of consciousness of guilt” but acknowledged that the
jury would decide “how much weight” to give it. App. 987.
Anticipating the defense’s discussion of the statement in its closing, the
government requested that the court restrict defense counsel from discussing
the amount of prison time Pina might face in order to improperly invite the
jury’s sympathy. App. 999-1000. The court agreed and instructed defense
counsel that he could argue that the statement “is not consciousness of guilt”
but could not discuss potential punishment. App. 1001-03. Defense counsel was
nonetheless able to explain his view of the statement. App. 1049-51. Toward
the end of his closing argument, counsel told the jury that the statement was
“a legal argument I was making in a motion.” App. 1049. He argued that the
statement showed merely “that Mr. Pina is a human being,” not that he was
conscious of his guilt, because “going up against the Feds is tough.” App. 1050.
15
Counsel added that Pina had ultimately “picked himself up” and decided to
“fight” the charges at trial. Ibid.; see also App. 1051.
On appeal, Pina argues that the statement from his motion to dismiss
was not admissible under Federal Rule of Evidence 801. Opening Brief (Br.)
11-29. This claim is incorrect, and Pina has not identified any case in which a
conviction was reversed on these grounds.
B. Standard Of Review
This Court generally reviews evidentiary rulings for abuse of discretion.
United States v. Velazquez-Fontanez, 6 F.4th 205, 219 (1st Cir. 2021). Appel-
late review is particularly deferential, however, “in determining the applica-
tion of Rule 801(d)(2) to statements of an attorney offered by the prosecutor
against a criminal defendant.” United States v. Valencia, 826 F.2d 169, 173 (2d
Cir. 1987) (“the trial judge must be accorded considerable discretion”); accord
United States v. Harris, 914 F.2d 927, 932 (7th Cir. 1990) (emphasizing the
trial judge’s “close proximity to the parties involved”).
16
C. The “Resigned To Prison” Statement Was Admissible As A

Party-Opponent Admission
1. The Statement Satisfied Rule 801 And Precedents

Applying It To Attorney Admissions
There is a long tradition of admitting statements by attorneys as evi-
dence against their clients. See Oscanyan v. Arms Co., 103 U.S. 261, 263-64
(1880). The general rule, rooted in the adversary process and the agency rela-
tionship between attorney and client, is that statements “made by an attorney
concerning a matter within his employment may be admissible against the
party retaining the attorney.” United States v. McKeon, 738 F.2d 26, 30 (2d
Cir. 1984) (internal quotation marks omitted); accord Totten v. Merkle, 137
F.3d 1172, 1176 (9th Cir. 1998); Williams v. Union Carbide Corp., 790 F.2d
552, 555-56 (6th Cir. 1986); see also McKeon, 738 F.2d at 31 (analogizing to the
admissibility of superseded pleadings as party-opponent admissions in civil lit-
igation). The modern mechanism for admitting such statements into evidence
is Federal Rule of Evidence 801(d)(2)(C) or (D), which provide that a party-
opponent’s out-of-court statement is not hearsay if it “was made by a person
whom the party authorized to make a statement on the subject” or “was made
17
by the party’s agent or employee on a matter within the scope of that relation-
ship and while it existed.” See United States v. Lombard, 72 F.3d 170, 189 n.25
(1st Cir. 1995).
Both of those provisions are on point here. Rule 801(d)(2)(C) applies be-
cause the statement was made by Pina’s attorneys, whom he authorized to file
the motion to dismiss the indictment. See infra p. 22. Rule 801(d)(2)(D) equally
applies because Pina’s attorneys made the statement in their capacity as his
agents and employees. As the district court explained, App. 86-87, there is no
indication whatsoever that Pina’s attorneys were not “authorized” or exceeded
the scope of their agency or employment in filing the motion to dismiss the
indictment and including the “resigned to prison” statement.
This Court has held that attorney statements are admissible as party-
opponent admissions, even in the criminal context, without applying any spe-
cial caution or limitations. See United States v. O’Connor, 433 F.2d 752, 755-
56 (1970). On the other hand, the Court more recently suggested in dictum
that when attorney statements are admitted against a criminal defendant, the
facial applicability of Rule 801(d)(2)(C) or (D) is not the end of the story. In
Lombard, the Court favorably cited a Second Circuit precedent that “urg[ed]
18
caution in admitting such statements in [the] criminal context to avoid infring-
ing [the] defendant’s right against self-incrimination, the right to counsel of
the defendant’s choice [i.e., insofar as admission of such a statement might re-
quire counsel to be disqualified], and the right to effective assistance of coun-
sel.” 72 F.3d at 189 n.25 (citing Valencia, 826 F.2d at 172-73); see also id. at
189 (deeming harmless any error in admitting the relevant statement).
The level of caution required cannot be much, in any event, because
courts lack authority to engraft additional requirements or heightened stand-
ards onto the Rules of Evidence. See, e.g., Bourjaily v. United States, 483 U.S.
171, 178-79 (1987). The Rules speak clearly when they create exceptions to
their default provisions, e.g., Fed. R. Evid. 413-415, and there is no special pro-
vision in Rule 801(d)(2) for admissions by criminal-defense attorneys. Yet
given the facts of Lombard, one can see why the Court there may have favored
a cautious approach. The party-opponent admission at issue was a statement
by a defendant’s counsel at a sidebar conference that the defendant was “pre-
pared to testify that he believed” his co-conspirator had previously been in
prison. Lombard, 72 F.3d at 189. That statement—an attorney’s anticipation
of his client’s testimony about the client’s beliefs—presents much more cause
for concern than the written, considered, backward-looking statement at issue
19
here. Cf. Purgess v. Sharrock, 33 F.3d 134, 144 (2d Cir. 1994) (holding that an
attorney’s prior statement “in a legal brief filed with the court subject to the
penalty of sanctions” was admissible under Rule 801(d)(2)).
Nor does the statement from Pina’s motion to dismiss raise the specific
constitutional concerns identified in Lombard. Pina’s privilege against self-in-
crimination was not implicated because he made the statement voluntarily
through his attorneys, and admitting the statement did not compel him to take
the stand to rebut it. Like “any damaging piece of evidence,” the statement
required Pina “to present a competing explanation to the jury,” but that does
not raise a self-incrimination issue. Harris, 914 F.2d at 931; see also App. 1049-
51 (defense counsel offering his explanation of the statement to the jury). Ad-
mitting the statement did not violate Pina’s right to counsel, either, for the
reasons explained in Part II below.1
1
The Second Circuit in McKeon imposed special substantive and proce-
dural requirements for admitting an attorney’s previous argument to a jury as
a party-opponent admission. 738 F.2d at 33. For the reasons discussed
throughout this Part, the statement here satisfied most or all of those substan-
tive limitations. At any rate, the Second Circuit has limited this aspect of
McKeon to the jury-argument context and clarified that in general, there are
no “special procedures to be followed, or balancings to be performed[,] as a
prerequisite to the evidentiary use of a defendant’s counsel’s out-of-court
statements.” United States v. Arrington, 867 F.2d 122, 128 (2d Cir. 1989).
20
Whether or not special caution should be applied in this context, see
Lombard, 72 F.3d at 189 n.25, the statement at issue was suitable for introduc-
tion as a party-opponent admission. Unlike the attorney statement excluded
in Valencia, for instance, the statement here appeared in a written pleading
authorized by Pina, leaving no “dispute as to precisely what was said,” and it
suggested consciousness of guilt directly, not obliquely. 826 F.2d at 173; cf. id.
at 171-73 (explaining that Valencia involved an attorney’s allegedly incon-
sistent exculpatory statement made without the client’s authorization during
informal plea negotiations); United States v. Jung, 473 F.3d 837, 842 (7th Cir.
2007) (holding inadmissible attorney statements made more than five years
before trial in order “to notify victims about the situation”). The statement did
not “consume substantial time” at trial (see infra Part I-D); did not invite the
jury to draw unfair inferences, given the district court’s instruction (App. 969-
70); and did not “deter counsel from vigorous and legitimate advocacy” during
a trial that Pina himself describes as “hotly contested” (Br. 26). McKeon, 738
F.2d at 32. Importantly, Pina’s counsel had and took the opportunity to explain
the statement to the jury and minimize its significance, App. 1049-51, without
impairing Pina’s rights as a defendant. See ibid.; see also Oscanyan, 103 U.S.
at 264 (a party whose statement has been admitted into evidence “should be
21
allowed to explain and qualify it”). The statement from the motion to dismiss
was admissible as a party-opponent admission.
2. Pina’s Objections To Applying Rule 801 Are Meritless
Pina presents a battery of arguments to the contrary, all of which are
mistaken.
Applicability of Rule 801(d)(2)(C). Pina musters hardly any textual
argument against applying Rule 801(d)(2)(C) or (D). See Br. 21-29. He claims
only that subparagraph (C) does not apply because “[t]here is nothing to indi-
cate that Pina authorized counsel” to make a statement on his expectations
about prison. Br. 27. That is wrong. Pina’s attorneys represented to the court
that he had authorized them to file the motion to dismiss the indictment, which
surely includes the motion’s contents. App. 33 (Pina moving to dismiss the in-
dictment “through his undersigned counsel”); App. 41 (attorneys’ signatures);
see also 2 McCormick on Evidence § 257 (8th ed. 2022) (“The dominant posi-
tion … is that pleadings shown to have been prepared or filed by counsel em-
ployed by the party are prima facie regarded as authorized by the client and
are entitled to be received as admissions.”). It is also highly doubtful as a prac-
tical matter that Pina’s attorneys would have filed such an important last-mi-
nute motion without consulting him. Even if Pina were right that authority
22
was lacking, moreover, the statement would remain admissible under Rule
801(d)(2)(D).
Hearsay. Pina argues that the statement from the motion to dismiss
was “inadmissible hearsay” (and “double hearsay”) because it relied on what
the FBI had been told by the informant, who had been told about the meeting
on Pina’s yacht by someone else. Br. 24 & n.16. This contention is incorrect
because Rule 801(d)(2) categorically defines party-opponent admissions as
nonhearsay, and it does not matter that the party-opponent has made the rel-
evant statement without personal knowledge. (Rule 805, which governs the
admissibility of “[h]earsay within hearsay,” thus has no role to play here.) As
the Advisory Committee on the Federal Rules of Evidence explained:
No guarantee of trustworthiness is required in the

case of an admission. The freedom which admissions
have enjoyed from technical demands of searching for
an assurance of trustworthiness in some against-inter-
est circumstance, and from the restrictive influences
of the opinion rule and the rule requiring firsthand
knowledge, when taken with the apparently prevalent
satisfaction with the results, calls for generous treat-
ment of this avenue to admissibility.
Fed. R. Evid. 801, adv. comm. note; see Tome v. United States, 513 U.S. 150,
160 (1995) (plurality opinion) (noting the Supreme Court’s reliance on these
“well-considered Notes as a useful guide in ascertaining the meaning of the
23
Rules”); 2 McCormick on Evidence § 255 (explaining that “most admissions
possess greater reliability than the general run of hearsay, even when not
based on firsthand observation”).
It is thus well settled in this Court and others that a party-opponent ad-
mission remains nonhearsay even if it is based on hearsay. See, e.g., Pilgrim
v. Trs. of Tufts Coll., 118 F.3d 864, 869-70 (1st Cir. 1997) (deeming “a collection
of multi-level hearsay statements” admissible as party-opponent admissions),
abrogated on other grounds by Nat’l R.R. Passenger Corp. v. Morgan, 536
U.S. 101 (2002); Brookover v. Mary Hitchcock Mem’l Hosp., 893 F.2d 411, 415-
18 (1st Cir. 1990); Mister v. Ne. Ill. Commuter R.R. Corp., 571 F.3d 696, 698-
99 (7th Cir. 2009); Blackburn v. United Parcel Serv., Inc., 179 F.3d 81, 96 (3d
Cir. 1999) (“Admissions by a party-opponent need not be based on personal
knowledge to be admitted under Rule 801(d)(2). Therefore, we need not be
concerned here that the basis for [the party’s] statement is likely hearsay[.]”
(citation omitted)); United States v. Southland Corp., 760 F.2d 1366, 1376 n.4
(2d Cir. 1985) (denying that “the author of the admission [must] have personal
knowledge, apparently meaning knowledge from non-hearsay sources”).2
2
Relatedly, Pina is incorrect in suggesting that the “resigned to prison”
statement merely “repeat[ed] or paraphras[ed] what an FBI report said that
an informant had told the government.” Br. 24. While the statement relied on
24
Clear and Unambiguous Fact. Pina argues that a statement must be
one of “‘clear and unambiguous’ fact” to be admissible under Rule 801(d)(2)(C)
and (D). Br. 25. But the Rule does not say anything like that. Fed. R. Evid.
801(a) (defining “[s]tatement”). The “clear and unambiguous” language de-
rives from a descriptive portion of McKeon, which did not impose this as a
requirement for admissibility. Br. 25 (citing United States v. Blood, 806 F.2d
1218, 1221 (4th Cir. 1986), which cites McKeon, 738 F.2d at 30).3 McKeon itself
upheld the admission of an attorney’s prior argument to a jury and required
only that the argument have “involve[d] an assertion of fact.” 738 F.2d at 33.
Even if “clear and unambiguous fact” were a requirement under Rule
801(d)(2), there is nothing unclear or ambiguous about the statement from the
motion to dismiss, which described it as a “fact that the government learned
that the defendant was resigned to the fact that he would have to spend time
the FBI report, it described that information in its own words and used the
information to make an argument about prejudice that depended on the infor-
mation’s being accurate. See supra pp. 13-14.
3
Insofar as Blood imposed a “clear and unambiguous admission” re-
quirement, it did so in dictum. In Blood “there was no admission of any kind,”
let alone a clear and unambiguous one, where the relevant party had made
“inadvertent use” of a single word. 806 F.2d at 1221 & n.2.
25
in prison.” App. 36 (emphasis added). Pina argues that this was based on hear-
say and thus unreliable, Br. 25, but a statement can be clear despite resting on
hearsay, and as discussed above, “[n]o guarantee of trustworthiness is re-
quired in the case of an admission.” Fed. R. Evid. 801, adv. comm. note. Pina
further claims that the statement, “read as a whole and in context,” was “ar-
gument by counsel, not a statement of fact.” Br. 26. As just noted, though, the
statement on its face was one of “fact” about what the government had learned
about Pina’s state of mind. App. 36. The statement was embedded within a
legal argument—about the prejudice to Pina from the government’s use of an
informant, App. 36-37—but that is presumably true of many or most party-
opponent admissions by attorneys and does not render the statement itself
nonfactual.
Chilling Effect. Pina argues that admitting statements like the one at
issue would “have profound implications for the defense function,” enabling
the government to “pounce[]” whenever the defense makes “the wrong choice
of words” or uses “inartful phrasing.” Br. 28. He posits, for example, that “this
issue would never have arisen” if counsel had “simply added the word ‘alleg-
edly’” to the statement. Br. 15.
26
For starters, adding “allegedly” would not have changed anything.
Pina’s prejudice argument in his motion to dismiss only worked if it was actu-
ally true (not just “alleged”) that Pina was resigned to going to prison, because
otherwise the government would not have had any extra advantage in plea ne-
gotiations. See supra pp. 13-14. So admitting the statement from the motion to
dismiss did not somehow punish Pina’s attorneys for a slip of the pen. In addi-
tion, if admitting an attorney’s statement is unfairly prejudicial—suppose the
attorney misspoke in a way that the jury may find overly significant—the
Rules provide a means to address that risk. See Fed. R. Evid. 403.
Admitting statements like this one poses no greater threat to defense
attorneys than it does to prosecutors or any other lawyers. Party-opponent
statements are admissible in both directions. See United States v. Kattar, 840
F.2d 118, 131 (1st Cir. 1988) (holding that documents filed by the Department
of Justice in other litigation were admissible against the government under
Rule 801(d)(2)). In this very case, in fact, Pina had a statement from an FBI
agent’s affidavit admitted against the government in the same manner that the
district court admitted the statement from Pina’s motion to dismiss, App. 252,
256, and his counsel highlighted it during his closing argument, App. 1033. As
27
the Seventh Circuit explained in Harris, the mere “fact that a lawyer’s unsuc-
cessful maneuver might be used against his client,” as Pina’s last-minute mo-
tion to dismiss the indictment was used against him, “will not unduly chill le-
gitimate advocacy.” 914 F.2d at 932. The record here, which depicts a vigorous
(if unsuccessful) defense, belies Pina’s concerns.
Far from impairing legitimate advocacy, admitting party-opponent
statements made by attorneys promotes it. To hold such statements inadmis-
sible would “invite abuse and sharp practice”—here, by enabling counsel to
state that their client was resigned to going to prison when useful, in a pretrial
motion, yet deny the same fact at trial without consequence. McKeon, 738 F.2d
at 31. Excluding such statements “would also weaken confidence in the justice
system itself by denying the function of trials as truth-seeking proceedings.”
Ibid. It is axiomatic that “parties must live with the consequences of freely
made, calculated decisions reached for strategic reasons in the course of liti-
gation.” Paul Revere Variable Annuity Ins. Co. v. Zang, 248 F.3d 1, 8 (1st Cir.
2001); accord Harris, 914 F.2d at 931-32. Nothing about the district court’s
treatment of the statement from Pina’s motion to dismiss was unfair or threat-
ening to the legitimate advocacy of defense attorneys.
28
D. Any Error In Admitting The Statement Was Harmless
In the event the district court did err in admitting the statement, its er-
ror was harmless. Fed. R. Crim. P. 52(a). “Nonconstitutional errors are harm-
less” if this Court can say “with fair assurance” that the errors did not “sub-
stantially sway” the verdict. United States v. Rivera-Carrasquillo, 933 F.3d
33, 46-47 (1st Cir. 2019) (internal quotation marks omitted). The Court can say
so here, because the other evidence presented at trial conclusively and inde-
pendently established that Pina possessed firearms and ammunition as a con-
victed felon and possessed a machinegun.
1. The Government’s Case Against Pina Was

Overwhelming
The government’s theory required it to prove that Pina constructively
possessed the firearms and ammunition found at the Caguas Real house—that
is, that he had the “power and intention at a given time of exercising dominion
and control over [the guns and ammunition] either directly or through others.”
United States v. Tanco-Baez, 942 F.3d 7, 25 (1st Cir. 2019) (internal quotation
marks omitted). The government established this with overwhelming evi-
dence, the most inculpatory of which was the intercepted February 6 phone
call in which Pina explicitly claimed possession of the firearms and ammunition
in the hidden room in the Caguas Real house. App. 1119 (“I have money and I
29
have all sorts of things in there: my guns, rifles, bullets.”).4 There was no evi-
dence that anything material changed between February 6 and April 1, when
the FBI searched the house and found the guns and ammunition, along with,
among other things, an ammunition box bearing Pina’s fingerprint and a cer-
tificate bearing his name.5 App. 140-48, 164, 298-300, 311. As the search was
going on, Pina behaved in a manner that reinforced his dominion and control
over the house and the contraband in particular—asking his alarm company
specifically about the alarms pertaining to the hidden room and safe, respond-
ing with dismay when he learned the FBI was at the house, and calling a num-
ber of other people to ask them to check on the house surreptitiously. App.
1098; Gov’t Exs. 79A, 82A, 83A, 84A.
Furthermore, Pina’s ownership and control of the Caguas Real house
provided ample basis for the jury’s verdicts. See United States v. Ridolfi, 768
4
The fate of the “rifles” is unknown, but the FBI found a bayonet and
magazines for rifles in the hidden room. App. 167; see also App. 51.
5
In any event, Pina’s possession of the contraband in February was suf-
ficient to convict where the indictment used “[o]n or about April 1, 2020,” as
the relevant date. App. 30-31; see United States v. Portela, 167 F.3d 687, 698
n.7 (1st Cir. 1999); United States v. Nersesian, 824 F.2d 1294, 1323 (2d Cir.
1987).
30
F.3d 57, 62 (1st Cir. 2014) (“For constructive possession of a firearm in partic-
ular, the requisite knowledge and intention can be inferred from circum-
stances ‘such as a defendant’s control over the area where the contraband is
found[.]’” (quoting United States v. McLean, 409 F.3d 492, 501 (1st Cir.
2005))); United States v. Allen, 990 F.2d 667, 670 (1st Cir. 1993) (“Constructive
possession will support a conviction and can be established by circumstantial
evidence such as a defendant’s ownership or control over the premises in which
the contraband is hidden.”). That is especially true in this case, where the con-
traband was found not only in a house Pina owned and controlled, but in a
“specially accessible” “domain” within the house like the hidden, secured room
adjacent to the master bedroom. United States v. Zavala Maldonado, 23 F.3d
4, 7 (1st Cir. 1994).
The impact of the “resigned to prison” statement, by contrast, was lim-
ited. The district court’s judicial notice occupied one page of a trial transcript
spanning hundreds, App. 116, and the court carefully instructed the jury on
the statement’s potentially limited importance, App. 970 (“sometimes an inno-
cent person may resign him or herself to spend time in prison for some other
reason”). The government discussed the statement briefly during closing ar-
31
guments, even cautioning the jury against convicting “just based on” the state-
ment. App. 987, 1058-59, 1075; see also App. 1075 (“That’s not sufficient in and
of itself.”); United States v. Battinelli, 2 F. App’x 14, 16 (1st Cir. 2001) (un-
published) (testimony was harmless where “[t]here was an abundance of
[other] evidence” and “the government did not rely heavily on [the] testimony
in its closing argument”). That the government requested the statement to be
noticed at the start of trial (and correspondingly mentioned it first during clos-
ing arguments) reflects that it made sense to address it separately from the
government’s witnesses and physical evidence. If the government had saved it
for last, or introduced it at the heart of its case, Pina would probably have
found that equally objectionable. Cf. Br. 30 n.19 (“prosecutorial arguments in
the rebuttal context can be particularly damaging”).
Despite any “caution” that might be required in admitting attorney
statements as party-opponent admissions, they are not prejudicial for harm-
less-error purposes when other evidence “independently establishe[s]” the de-
fendant’s guilt. Lombard, 72 F.3d at 189 & n.25; see also Jung, 473 F.3d at 843.
That was the case here.
32
2. Pina’s Assertions Of Prejudice Are Meritless
Pina’s arguments to the contrary are unpersuasive. He stresses that the
government’s proof that he had “dominion and control over the [Caguas Real]
house” does not suffice to show that he had such control over the guns and
ammunition in particular. Br. 32. That is a straw man, since the evidence
clearly showed Pina exercising control over the house’s sundry contents, in-
cluding the contraband in the hidden room. E.g., App. 1113-19.
Pina hypothesizes that someone else—perhaps his employee Jose Mi-
guel—may have accessed the hidden room and planted the guns and ammuni-
tion there. Br. 33-34 (citing App. 904-20). But that theory is far too weak and
speculative to undercut Pina’s explicit statement on the February 6 call that
“my guns, rifles, bullets” were in the hidden room. App. 1119 (emphasis
added). All of the “unauthorized entries” at the house that Pina describes (Br.
34) were accounted for.6 And Pina kept Jose Miguel in his employ even after
Pina was indicted, App. 941-46, which would be a surprising decision if he be-
6
See App. 907-12 (Jose Miguel gave an alarm technician access), 915
(employee activated the alarm; “everything was in order”), 917-18 (“personnel
in the house”), 918-19 (Pina’s relative verified the alarm with his permission),
919 (Jose Miguel mistakenly activated the alarm himself), 920 (same).
33
lieved that Jose Miguel planted or allowed someone else to plant the contra-
band. Cf. Zavala Maldonado, 23 F.3d at 7 (“The location of drugs or firearms
in a defendant’s home or car is a common basis for attributing possession to
the defendant,” “even if the residence or room is shared by others.”).
Pina further claims (Br. 34-37) that the government’s case “virtually ig-
nored” the requirement, for constructive possession, that he had not only the
“power” but also the “intention” to exercise dominion and control over the fire-
arms and ammunition. Tanco-Baez, 942 F.3d at 25 (internal quotation marks
omitted). But Pina unambiguously exhibited such intention on the February 6
call. The whole point of the relevant portion of that conversation with Joed
Romero Soler was for Pina to discuss what he wanted to do with the items in
the Caguas Real house, which clearly included the guns and ammunition, be-
fore renting or selling it. App. 1119.
Pina proffers an interpretation of the wiretap transcript in which he “de-
cline[s]” to and “cannot” exercise dominion and control over the contraband,
noting his refusal on the call to give the contraband to “Miguel” and his state-
ment that “I can’t take it out either.” Br. 36-37; App. 1119-20. That interpreta-
tion is not realistic. Pina’s refusal to give the contraband to Miguel affirma-
tively demonstrates dominion and control over it, and the reason Pina couldn’t
34
“take it out” himself was that, as he explained to Romero, the Ciudad Jardín
house was not a suitable place to hide it, App. 1120-21—not that Pina lacked
the intention to exercise dominion and control. Constructive possession re-
quires “some action, some word, or some conduct that links the individual to
the contraband and indicates that he had some stake in it, some power over
it”—not that the individual intended to actively use or dispose of the contra-
band at a given time. McLean, 409 F.3d at 501 (quoting In re Sealed Case, 105
F.3d 1460, 1463 (D.C. Cir. 1997)).
The notion that the “resigned to prison” statement was “overwhelmingly
prejudicial” (Br. 30) is implausible. Pina never objected to the statement under
Federal Rule of Evidence 403, and as noted, the district court instructed the
jury to guide its use of the statement. App. 969-70. Pina accuses the govern-
ment of “mock[ing]” his attorneys about the statement and argues that by us-
ing the statement to “impeach” defense counsel’s closing argument, the gov-
ernment “improperly denigrat[ed] the defense and impugn[ed] the sincerity
and integrity of defense counsel.” Br. 30-31. Although the government did say,
“Thank you. More evidence of guilt,” in reference to the statement, App. 1059,
that fairly mild comment does not entitle Pina to reversal. Cf. United States v.
35
Doe, 860 F.2d 488, 492 (1st Cir. 1988) (finding harmless the prosecutor’s sar-
castic reference to four defendants as “four innocent bastards”). The govern-
ment’s use of the statement to undermine defense counsel’s closing argument
did not “denigrat[e]” or “impugn[]” the defense any more than a party’s use of
its opponent’s prior admission ever does. The district court’s admission of the
statement was harmless even if erroneous.
II. ADMITTING THE STATEMENT FROM PINA’S MOTION TO

DISMISS DID NOT RAISE A SIXTH AMENDMENT PROBLEM
Pina next claims that even if the statement from his motion to dismiss
were admissible under Rule 801, reading it to the jury deprived him of effec-
tive assistance of counsel in violation of the Sixth Amendment. Br. 38-50. This
claim is not properly before the Court and is meritless besides.
A. The Ineffective-Assistance Claim Should Not Be Considered

On Direct Review
This Court has repeatedly reaffirmed that claims of ineffective assis-
tance of trial counsel must almost always be raised on collateral review, not
direct appeal. See United States v. Staveley, 43 F.4th 9, 15 (1st Cir. 2022). The
only exception applies “in those rare instances when ‘the critical facts are not
genuinely in dispute and the record is sufficiently developed to allow reasoned
36
consideration.’” Id. at 16 (quoting United States v. Miller, 911 F.3d 638, 642
(1st Cir. 2018)).
Citing inapposite out-of-Circuit precedent, Pina seems to argue that the
usual rule does not apply here because he flagged the ineffective-assistance
issue for the district court. Br. 40 (citing Gov’t of V.I. v. Zepp, 748 F.2d 125,
134 (3d Cir. 1984)); see App. 114-15. That is not enough. Although raising inef-
fective assistance at trial may make it more likely that a sufficient record will
be developed to enable review on appeal, that did not happen here. Pina’s claim
focuses on the conduct of one of his attorneys, Francisco Rebollo-Casalduc,
and it raises a number of factual questions that the trial record does not an-
swer. Cf. Zepp, 748 F.2d at 133 (“we do have an adequate record and thus an
additional evidentiary hearing need not be conducted”). After Rebollo raised
an ineffective-assistance concern (in the most general of terms) on the first
day of trial, the district court said it was “not going to decide that now,” App.
115, and Rebollo never raised it again. Pina is therefore forced to speculate
about what Rebollo would have said on the stand had Pina “been able to call
Mr. Rebollo as a defense witness,” and about what “[o]ther counsel” would
have said during their hypothetical closing arguments in Rebollo’s stead. Br.
48-49. Nor does the record reveal why Rebollo did not withdraw as counsel if
37
he felt he was unethically serving as an “unsworn witness” against Pina, Br.
43-47, or whether Rebollo truly “had no choice” about how to frame his closing
argument, Br. 46. These are all fact-specific issues that could be explored in a
collateral proceeding but were not developed in the district court. See United
States v. Garcia-Rodriguez, 215 F.3d 1312 (tbl.), 2000 WL 764896, at *1 (1st
Cir. 2000) (per curiam) (unpublished) (withholding direct review of an ineffec-
tive-assistance claim because “the record is very scantily developed on the key
issues, the subsidiary facts are uncertain, and the parties’ briefs are redolent
with the familiar scents of speculation and surmise”). Pina therefore cannot
raise this claim on direct review.
B. Pina’s Sixth Amendment Rights Were Not Violated
In the event the Court disagrees and reviews Pina’s ineffective-assis-
tance claim on the merits, the Court should reject it. As just noted, Pina’s claim
rests on an alleged conflict of interest on the part of his attorney Francisco
Rebollo-Casalduc. An ineffective-assistance claim “premised on counsel’s al-
leged conflict of interest” is ultimately reviewed de novo. United States v. Car-
dona-Vicenty, 842 F.3d 766, 771 (1st Cir. 2016) (internal quotation marks omit-
ted).
38
“Under the Sixth Amendment, ‘a defendant has a right to conflict-free
representation.’” Cardona-Vicenty, 842 F.3d at 771 (quoting United States v.
Hernandez-Lebron, 23 F.3d 600, 603 (1st Cir. 1994)). The defendant’s right is
violated when “an actual conflict of interest adversely affect[s] his lawyer’s
performance.” Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). The trial court has
a duty of inquiry if it “knows or reasonably should know that a particular con-
flict exists.” Id. at 347. “[S]peculative or theoretical conflicts of interests,” how-
ever, do not trigger a duty of inquiry and cannot support a Sixth Amendment
claim. Cardona-Vicenty, 842 F.3d at 773.
Pina’s Sixth Amendment claim faces a steep uphill battle for one obvious
reason: Rebollo, the purportedly conflicted attorney, was only one of four at-
torneys who defended Pina at trial.7 “Where, as here, the defendant was rep-
resented by multiple attorneys, an ineffective assistance challenge is particu-
larly difficult to mount.” United States v. Dunfee, 821 F.3d 120, 128 (1st Cir.
2016) (per curiam); see also Lopez-Nieves v. United States, 917 F.2d 645, 647
7
For example, Attorney Maria A. Dominguez-Victoriano argued Pina’s
motion for judgment of acquittal, App. 852-55, 861-64, and conducted direct
and cross-examination of several witnesses, e.g., App. 370, 471, 867.
39
(1st Cir. 1990) (“the presence of a second attorney during the proceedings se-
riously undermines appellant’s claim of ineffective assistance of counsel”;
claim alleged conflicts of interest).
Had Rebollo been Pina’s only attorney, the Sixth Amendment claim
would fail anyway. The district court did not neglect its duty of inquiry, see
Sullivan, 446 U.S. at 347, because there was no actual or potential conflict of
interest to inquire about. 8 See Cardona-Vicenty, 842 F.3d at 773. In Pina’s
view, Rebollo had a conflict of interest in two ways: first, introducing the state-
ment from the motion to dismiss made him an “unsworn witness” against his
client, Br. 43-47; and second, he was conflicted between either continuing to
serve as Pina’s counsel or taking the stand as a witness to explain why the
statement did not evince consciousness of guilt, Br. 47-49. Neither theory es-
tablishes a conflict.
8
No authority supports Pina’s suggestion (Br. 16 n.10, 40) that the gov-
ernment’s tentative footnote in its surreply on the motion to dismiss the indict-
ment, App. 71 n.2 (stating that it was “collecting case law” on ineffective-assis-
tance issues), obliged the government or the court to take further action to
protect Pina’s right to counsel.
40
1. Attorney Rebollo Was Not An Unsworn Witness

Against Pina
Dubbing Rebollo as an “unsworn witness” does not establish a conflict
of interest. If it did, a Sixth Amendment issue would arise every time a defense
attorney’s statement is admitted against his client as a party-opponent admis-
sion, which is not correct. See supra Part I-C-1. The statement from Pina’s
motion to dismiss was admitted as a party-opponent admission under Rule
801(d)(2) because Pina’s attorneys were speaking on his behalf, not as wit-
nesses against him.
Even under an “expansive Second Circuit rule” that this Court has not
adopted, disqualifying an attorney under the unsworn-witness rule—much
less finding a Sixth Amendment violation—“is a ‘drastic remedy,’ reserved for
cases where the attorney has ‘entangled himself to an extraordinary degree’
with his client.” Fonten Corp. v. Ocean Spray Cranberries, Inc., 469 F.3d 18,
23 (1st Cir. 2006) (quoting United States v. Locascio, 6 F.3d 924, 934 (2d Cir.
2006)). “Overturning a verdict or ordering a new trial based on an unsworn
witness issue is at least as drastic.” Ibid. There is no authority for taking such
an extraordinary step when the attorney’s only involvement, as here, is filing
a pretrial motion on his client’s behalf. An attorney cannot credibly claim, as
Rebollo suggested (App. 115), that he is serving as an unsworn witness against
41
his client, yet decline to request disqualification or withdrawal from the repre-
sentation. See Purgess, 33 F.3d at 144 (“To state the argument is to refute it.”).
The cases Pina cites in support of his unsworn-witness theory (Br. 43-
45) provide him no help. Jung involved no Sixth Amendment claim, nor any
evidence that the defendant even authorized the attorney to make the relevant
statement. 473 F.3d at 841-42 & n.2. McKeon did not involve a Sixth Amend-
ment claim either, and held that the attorney statement was “properly admit-
ted.” 738 F.2d at 33. The attorneys in United States v. Ellison, 798 F.2d 1102
(7th Cir. 1986), Zepp, and Locascio were deeply and personally entangled in
their clients’ cases in ways that do not compare to Rebollo’s role. See Ellison,
798 F.2d at 1104, 1106-07 (defense counsel testified against his client and de-
nied the client’s accusations of malpractice, all while representing him at the
same hearing); Zepp, 748 F.2d at 128, 136-37 (defense counsel was present and
possibly criminally involved when the defendant allegedly destroyed evidence,
and counsel made a stipulation adverse to the defendant); Locascio, 6 F.3d at
933-34 (similar).
Pina complains that the introduction of the “resigned to prison” state-
ment at trial put Rebollo’s credibility at stake, such that he could not argue
42
that Pina was never actually resigned to going to prison. Br. 44, 46-47.9 It is
not at all clear that Rebollo was barred from arguing that the statement was
inaccurate—he never tried. Cf. Purgess, 33 F.3d at 143-44 (attorney who made
the party-opponent admission stipulated that she “now states that the state-
ment is incorrect”). Regardless, the challenge that Rebollo faced in reckoning
with the statement was far from “‘extraordinary,’” Fonten Corp., 469 F.3d at
23; it was no different from the predicament of any attorney whose statement
has been admitted against his client under Rule 801(d)(2). This kind of diffi-
culty has never been held to be a conflict of interest precluding effective assis-
tance of counsel.
2. There Was No Need For Rebollo To Testify
Pina’s second theory is that Rebollo was conflicted between continuing
to serve as Pina’s counsel or testifying for the defense. Br. 47-49. He points to
the “advocate-witness rule,” which “generally ‘bars an attorney from appear-
ing as both an advocate and a witness in the same litigation.’” United States v.
9
Pina also claims that Rebollo was “precluded from arguing” that inno-
cent people are sometimes resigned to going to prison. Br. 46 n.27. That asser-
tion is contradicted by the record. App. 1050 (Rebollo stating in closing: “I’ve
represented people like this in Federal Court for many years, and going
against, going up against the Feds is tough. … [O]f course [Pina’s] going to be
worried.”).
43
Angiulo, 897 F.2d 1169, 1194 (1st Cir. 1990) (quoting United States v. La-
Rouche Campaign, 695 F. Supp. 1290, 1315 (D. Mass. 1988)). If Rebollo had
testified, Pina says, he could have explained:
[1] that he wrote the statement in a motion to dismiss

the charges against Pina, [2] that he was not repeating
something that Pina had said but was instead refer-
ring to something that the government reportedly had
been told (as he was already on record as having said),
[3] that these were his words and not Pina’s, and [4]
that it was his statement, made in arguing the motion,
and not Pina’s.
Br. 48.
This purported conflict of interest is illusory. The jury heard all of the
information block-quoted above, without Rebollo having to take the stand as a
witness. The first, third, and fourth items on Pina’s list of topics are all the
same thing—Rebollo, not Pina, wrote the statement as part of an argument in
the motion to dismiss. This was stated in the judicial notice, App. 116, and Re-
bollo made the same point emphatically during closing argument, App. 1049
(“[T]he government made much of a statement I wrote in a motion,” “a legal
argument I was making in a motion[.] … I wrote that motion. I wrote that
motion.”). The second point, that the statement referred to “something that
the government reportedly had been told,” Br. 48, is communicated by the
statement itself: “Just the fact that the government learned that the defendant
44
was resigned to the fact that he would have to spend time in prison is a tre-
mendous advantage to have in plea negotiations.” App. 36. By Pina’s own ac-
count, then, there was no need for Rebollo to testify. Cf. United States v. Kliti,
156 F.3d 150, 155 (2d Cir. 1998) (ineffective-assistance inquiry is required
“whenever a defendant would forgo important testimony by his attorney be-
cause of his attorney’s continued representation of him” (emphasis added)).
Even if Rebollo had needed to testify on these matters, he may well
could have. While the advocate-witness rule “generally” bars lawyers from ap-
pearing as both advocate and witness, Angiulo, 897 F.2d at 1194, that is not
always the case. Model Rule of Professional Conduct 3.7(a)(1), for instance,
permits attorneys to testify if “the testimony relates to an uncontested issue,”
which describes the issues about which, according to Pina, Rebollo could have
testified. Failing that, there is no reason why another one of Pina’s four trial
attorneys—all of whom signed the motion to dismiss the indictment, App. 41—
could not have testified on these matters, even if that required their disquali-
fication from further service on the trial team. Rebollo did not face a choice
between continuing to serve as Pina’s lawyer and taking the stand. There was
no advocate-witness conflict of interest.
45
3. Pina Cannot Show An Adverse Effect On Rebollo’s

Performance
Even supposing Pina could establish a conflict of interest, he could not
show that the conflict adversely affected Rebollo’s performance. See United
States v. Ponzo, 853 F.3d 558, 575 (1st Cir. 2017). Pina concedes that this re-
quirement applies here, yet he offers only conclusory statements, not substan-
tive argument, that Rebollo’s alleged conflicts adversely affected his perfor-
mance. See Br. 39, 50. Pina could not make that showing. As discussed above,
the purported unsworn-witness conflict rests on speculation about how the
jury perceived Rebollo and what Rebollo felt free to argue during his closing
statement. Br. 46-47; see United States v. DeCologero, 530 F.3d 36, 77 (1st Cir.
2012) (“Showing an adverse effect … requires more than mere speculation[.]”).
Pina suggests that Rebollo could not effectively deal with the statement at trial
given his role in writing it, Br. 46-47, but it is just as likely (if not moreso) that
Rebollo’s involvement enabled him to explain the statement more convincingly
to the jury. See App. 1049 (Rebollo repeating, “I wrote that motion.”). As for
the purported advocate-witness conflict, there is no indication that Rebollo’s
decision not to seek to testify (or have another of the defense attorneys testify)
was “the manifestation of divided loyalties” rather than a legitimate strategic
46
decision. DeCologero, 530 F.3d at 77. So even if the Sixth Amendment claim
were properly before the Court, it would fail on the merits.
III. SUFFICIENT EVIDENCE SUPPORTED THE JURY’S VERDICT

ON THE MACHINEGUN CHARGE
Pina argues (Br. 50-53) that the government adduced insufficient evi-
dence to sustain his conviction for possession of a machinegun. His argument
lacks merit.
A. Background
At the conclusion of the government’s case, Pina moved for judgment of
acquittal on the machinegun-possession count. App. 854-55. He argued that
there was insufficient evidence to show he knew that the relevant weapon, the
Glock pistol, “had the characteristics that brought it within the statutory def-
inition of a machinegun.” United States v. Nieves-Castaño, 480 F.3d 597, 599
(1st Cir. 2007) (quoting Staples v. United States, 511 U.S. 600, 602 (1994)). The
government opposed the motion, App. 856-61, 864-65, and the district court
denied it, App. 865.
This Court’s reviews the sufficiency of the evidence supporting a jury
verdict de novo. See United States v. Kanodia, 943 F.3d 499, 505-06 (1st Cir.
2019). In undertaking this review, the Court views “the trial evidence in the
47
light most favorable to [the] jury’s verdict,” and “[o]ut of deference to the
jury’s role, [will] only upset jury verdicts where ‘no rational jury could have
found the defendant guilty beyond a reasonable doubt.’” Ibid. (quoting United
States v. McPhail, 831 F.3d 1, 5 (1st Cir. 2016)).
C. The Evidence Established That Pina Knew The Glock Was A

Machinegun
Pina does not dispute that the Glock pistol was a machinegun; he con-
tests only that any rational jury could have found that he knew it was a ma-
chinegun. Federal law defines a “machinegun” in pertinent part as “any
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 func-
tion of the trigger.” 26 U.S.C. § 5845(b). To sustain a conviction for ma-
chinegun possession under 18 U.S.C. § 922(o), the government must prove the
defendant knew that the relevant firearm “had the characteristics that
brought it within the statutory definition of a machinegun.” Nieves-Castaño,
480 F.3d at 599 (quoting Staples, 511 U.S. at 602). In Staples, the Supreme
Court made clear that such “knowledge can be inferred from circumstantial
evidence.” 511 U.S. at 615 n.11.
48
The jury could have readily inferred that Pina knew that the Glock was
a machinegun, i.e., capable of firing automatically. First, the Glock had “exter-
nal indications signaling” that it was a machinegun. Staples, 511 U.S. at 615
n.11. Undisputed testimony established that the gun had been modified to fire
automatically using an external plate or “fin” that was visible to an observer.
App. 155-56, 467-68. This Court, relying on Staples, has found it critical in sim-
ilar cases that the defendant’s firearm fell within the relevant statutory defi-
nition by virtue of an external characteristic. See United States v. Shaw, 670
F.3d 360, 365 (1st Cir. 2012); United States v. Giambro, 544 F.3d 26, 30 (1st
Cir. 2008); cf. Nieves-Castaño, 480 F.3d at 601-02 (setting aside a conviction
where the only indication that “the weapon had been altered to make it fully
automatic” was a small hole).
That is not all. The jury also heard evidence establishing that Pina was
experienced with guns: he had previously been licensed to possess ten fire-
arms, and the hidden room in the Caguas Real house contained not just the
two guns but also a number of other items suggesting familiarity with firearms
(e.g., ammunition, a holster, a bayonet). App. 146, 164-68, 682-83. A defendant’s
experience with firearms is another form of circumstantial evidence that the
49
Court has given great weight as indicative of knowledge of a firearm’s charac-
teristics. See Shaw, 670 F.3d at 365; Giambro, 544 F.3d at 30; cf. Nieves-
Castaño, 480 F.3d at 601 (“Importantly, there was no evidence that [defend-
ant] had any expertise in firearms.”).
Pina’s only counterargument is that “[t]here was no evidence that Pina
ever set eyes on the [Glock], much less examined it or fired it.” Br. 51. That
claim blinks reality. The jury, in finding Pina guilty on both counts of the in-
dictment, necessarily found that Pina possessed the firearms in the Caguas
Real house, including the Glock, App. 1101—a finding that Pina does not chal-
lenge on appeal. Proof of constructive possession, to be sure, does not always
equate to proof of knowledge of the firearm’s characteristics: in Nieves-
Castaño, for instance, there was enough evidence to show the defendant pos-
sessed an AK-47, but not enough that she knew the AK-47 had been modified
to fire automatically. 480 F.3d at 600-02. The evidence established only that
the defendant had stored a golf bag containing the gun at the owner’s request
and had looked in the bag once and seen the rifle; that fleeting encounter was
not enough to establish the defendant’s familiarity with the gun and its char-
acteristics. See ibid.; see also United States v. Michel, 446 F.3d 1122, 1131
(10th Cir. 2006) (similar).
50
Unlike in Nieves-Castaño, ample evidence supported the jury’s conclu-
sion that Pina was familiar with the Glock pistol and had knowledge of its char-
acteristics. Pina’s constructive possession was not fleeting or transitory, and
the evidence affirmatively established his familiarity with the gun. On the Feb-
ruary 6 phone call with Romero, for example, he referred to “my guns,” which
the jury could reasonably have inferred included the Glock. App. 1119. He de-
scribed the guns as “cuenta loca,” i.e., unregistered, which is consistent with
the Glock’s status as a machinegun, ibid., insofar as machineguns can no
longer be registered under federal law, see United States v. Dalton, 960 F.2d
121, 125 (10th Cir. 1992). The Glock was stored with other contraband in a hid-
den room attached to the master bedroom in a house Pina owned and con-
trolled. App. 146.
In short, the evidence showed that the Glock had been externally modi-
fied to function as a machinegun, that the Glock belonged to Pina, that he kept
it in a secret and secure hiding place, and that he was well familiar with fire-
arms. From this, the jury could reasonably have inferred that he knew the
Glock was a machinegun. See Kanodia, 943 F.3d at 505-06. This Court has up-
held convictions in similar cases involving less compelling circumstantial evi-
51
dence that the defendant knew that contraband in his possession had the char-
acteristics that rendered it illegal. See, e.g., United States v. Laureano-Pérez,
797 F.3d 45, 74-76 (1st Cir. 2015). The jury’s verdict on the machinegun count
should be affirmed.
IV. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN

EXCLUDING THE MIAMI REALTOR’S TESTIMONY
Pina lastly claims that the district court abused its discretion in exclud-
ing the testimony of defense witness Jordan Millman, a Miami-area realtor.
Br. 53-59. This argument, too, is unavailing.
A. Background
Millman began by testifying about a 2010 transaction in which Pina
rented an apartment in Miami. App. 869-71. When defense counsel moved to
admit certain documents related to the lease into evidence, the government
objected to Millman’s testimony on relevance grounds. App. 871-73. The de-
fense argued that the testimony regarding Pina’s transactions in residential
real estate in Miami would be relevant to the extent of Pina’s control over the
contraband found in the Caguas Real house. See App. 876. The district court
sustained the government’s relevance objection, excused Millman, and struck
his testimony. App. 877, 880. After the court excused Millman, Pina made a
52
proffer that Millman would have testified about Pina’s real-estate activities in
the Miami area beginning in 2010:
[Millman] would have testified that in 2010, he as-

sisted 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 Aven-
tura, 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.
App. 879-80.
“A district court’s decision to admit or exclude evidence is ordinarily re-
viewed for abuse of discretion.” United States v. Maldonado-García, 446 F.3d
227, 231 (1st Cir. 2006). “[D]istrict courts enjoy wide latitude in passing upon
the relevancy of evidence,” id. at 231-32, and their judgments on such matters
are reversible in “exceptional cases” only, Cummings v. Standard Reg. Co.,
265 F.3d 56, 63 (1st Cir. 2001) (quoting Conway v. Electro Switch Corp., 825
F.2d 593, 597 (1st Cir. 1987)).
Pina initially frames his argument as a constitutional claim arising under
his right to present a complete defense, before switching gears and arguing
the point as a standard evidentiary issue. See Br. 53-59. The Constitution
53
“guarantees criminal defendants a meaningful opportunity to present a com-
plete defense.” Nevada v. Jackson, 569 U.S. 505, 509 (2013) (per curiam) (in-
ternal quotation marks omitted). There is no constitutional right to present
evidence that is properly excluded under valid rules of evidence, however, see
United States v. Pena, 24 F.4th 46, 67 (1st Cir. 2022), and the Supreme Court
has reserved the complete-defense doctrine for “egregious situations,”
DiBenedetto v. Hall, 272 F.3d 1, 8 (1st Cir. 2001), not garden-variety eviden-
tiary claims like Pina’s. See also Jackson, 569 U.S. at 509. The same abuse-of-
discretion standard of review applies to the constitutional and rules-based ver-
sions of this claim. See DeCologero, 530 F.3d at 72-74. We therefore focus on
Pina’s claim that the district court erred under the Federal Rules of Evidence
in excluding Millman.
C. Much Of Millman’s Testimony Would Have Been Irrelevant
Evidence is relevant if it makes any fact of consequence to the case
“more or less probable than it would be without the evidence.” Fed. R. Evid.
401. Here, the key question was whether Pina constructively possessed fire-
arms and ammunition on or about April 1, 2020, App. 30-32 (indictment), i.e.,
whether he had the power and intention to exercise dominion and control over
the guns and ammunition near that date. See Tanco-Baez, 942 F.3d at 25. The
54
point of Millman’s testimony was to show that Pina “spent time in Miami and
actually had a residence in Miami,” making it less likely that he had dominion
and control over the contraband in the Caguas Real house. App. 875. Per the
proffer, Millman would have testified about Pina’s real-estate transactions and
residency in Miami beginning in 2010 and ending in 2021. App. 879-80.
The problem for Pina is that his residential status as many as 10 years
preceding April 2020, and up to a year after the indictment, has hardly any-
thing to do with his residential status on or about April 1, 2020, which is what
mattered. Pina acknowledges as much in his opening brief, explaining that
“[w]ith respect to the two weapons at issue, the relevant period was consider-
ably more limited than from 2010 on.” Br. 57 n.30. It is well established that a
trial court may “set a reasonable cut-off date, evidence before which point is
to be considered too remote to have sufficient probative value to justify bur-
dening the record with it.” Cont’l Ore Co. v. Union Carbide & Carbon Corp.,
370 U.S. 690, 710 (1962). It was therefore within the district court’s broad dis-
cretion to exclude Millman’s testimony regarding Pina’s residency dating to
several years, and as much as a decade, before the relevant date, as well as
after the indictment. See Cummings, 265 F.3d at 64.
55
D. The Remainder Of Millman’s Testimony Would Have Been

Cumulative
As to Millman’s proffered testimony concerning Pina’s residential status
in the years immediately preceding April 2020, the district court’s decision was
correct because that testimony was cumulative of other evidence. See Fed. R.
Evid. 403; United States v. Sabean, 885 F.3d 27, 40 (1st Cir. 2018) (“Trial
courts enjoy ‘considerable latitude’ to exclude evidence that is ‘admittedly rel-
evant’ but also ‘cumulative.’” (quoting Hamling v. United States, 418 U.S. 87,
127 (1974))). Although the district court’s decision to exclude all of Millman’s
testimony rested on relevance grounds, App. 877, this Court is “not wed to the
district court’s reasoning but, rather, may affirm its [evidentiary] rulings on
any basis apparent in the record.” United States v. Arnott, 758 F.3d 40, 43 (1st
Cir. 2014). Here, the record makes clear that the remainder of Millman’s tes-
timony was properly excluded as cumulative of evidence that had already been
introduced. Fed. R. Evid. 403.
Millman’s testimony about Pina’s residences in the years immediately
preceding April 2020 was likely relevant insofar as it would have shown that
Pina resided during the pertinent time period in places other than the Caguas
Real house, including sometimes in Miami (making it marginally less likely
that he had the power and intention to exercise dominion and control over the
56
firearms at Caguas Real). See App. 879-80. But by the time Pina called Mill-
man to testify, those facts had already been thoroughly established by other
evidence. The court admitted evidence showing, for example, that Pina had a
Florida driver’s license listing a Miami address, which he used in a transaction
in December 2018, App. 413-16; that he had ordered a mattress for delivery to
Ciudad Jardín, App. 430-32; and that he owned the Ciudad Jardín house, App.
952-53; Def. Ex. N-1 (property registration). Pina also introduced an affidavit
confirming that the FBI knew he lived in Ciudad Jardín when he was in Puerto
Rico. App. 252, 256. Millman’s testimony would have reaffirmed what the jury
had already learned and what the government conceded, App. 1068—that Pina
resided in places other than Caguas Real, including in Miami. See United
States v. Maldonado-Peña, 4 F.4th 1, 26 (1st Cir. 2021) (evidence was cumula-
tive because the party seeking it would not “have gained anything substantial”
from its production, other evidence having already made the same point).
Pina himself confirmed that Millman’s testimony would have been cu-
mulative. In his closing argument, Pina’s counsel correctly stated that the de-
fense had “established that [Pina] lived somewhere else,” namely Ciudad
Jardín and Miami, and observed that Pina’s Florida driver’s license indicated
57
that he spent “significant time” there. App. 1033. He explained that the de-
fense had established this through “the best source,” the FBI agent who
signed the judicially noticed affidavit. Ibid. He then reviewed the various other
pieces of evidence that showed Pina did not reside at Caguas Real—the mat-
tress delivery, the property registration for Pina’s Ciudad Jardín house, and
the decorations in the children’s rooms at the Caguas Real house indicating
that they no longer lived there. App. 1034-35. Pina is therefore wrong to assert
(Br. 4) that the exclusion of Millman’s testimony “eliminated an entirely valid
line of defense.”
Millman’s testimony would not have been “identical to [this] previous
evidence,” of course, but it would have been “of the same general substance,
related to the same fact or point, and of little additional probative value.” Jew-
ell v. Life Ins. Co. of N. Am., 508 F.3d 1303, 1314 (10th Cir. 2007); see also
Perez v. Volvo Car Corp., 247 F.3d 303, 318 (1st Cir. 2001) (evidence that pro-
vided “more detail on some points” remained “essentially cumulative”). That
makes it cumulative, Jewell, 508 F.3d at 1314, so it fell within the district
court’s discretion to exclude it. Sabean, 885 F.3d at 40. That the court’s deci-
sion may have rested in small part on the wrong rule of evidence provides no
basis for reversal. Cf. Sexual Minorities Uganda v. Lively, 899 F.3d 24, 29 (1st
58
Cir. 2018) (this Court reviews “judgments, not statements in opinions” (quot-
ing Black v. Cutter Labs., 351 U.S. 292, 297 (1956))).
E. Any Error In Excluding Millman’s Testimony Was Harmless
Even if the district court should have permitted Millman to testify, its
error was harmless for much the same reason stated above (pp. 29-36): the
evidence of Pina’s guilt was overwhelming, and the impact of excluding Mill-
man’s testimony was minor compared to the evidence of guilt.10 Even the part
of Millman’s testimony that may have been relevant was cumulative on a point
of no dispute—i.e., that Pina had residential ties to Miami in the relevant time
period. The government established that Pina controlled the Caguas Real
house and its contents, but it openly conceded that Pina did not live at that
house. See, e.g., App. 1068 (prosecutor stating in closing, “[H]e wasn’t living at
that house at the time. … Nobody’s saying that he’s living there.”); cf. App. 990
(arguing that the evidence showed Pina’s Caguas Real house was not “for oth-
10
This renders the exclusion of Millman’s testimony harmless regard-
less of whether the standard for constitutional or nonconstitutional error ap-
plies. See United States v. McDonough, 727 F.3d 143, 157 (1st Cir. 2013) (con-
stitutional errors reviewed for harmlessness “beyond a reasonable doubt”;
others reviewed for “fair assurance … that the judgment was not substantially
swayed” (internal quotation marks omitted)).
59
ers to control”). That Pina sometimes lived in Miami specifically was unim-
portant—indeed, he demonstrated his possession of the contraband through
phone calls that he could have placed from anywhere. Any error in excluding
Millman was particularly harmless. See United States v. Newman, 49 F.3d 1,
5 (1st Cir. 1995) (holding harmless the exclusion of evidence that went to a
point “the government never disputed”).
* * *
Pina also requests that the Court consider, in the event of a remand,
reassigning the case to a different judge without the previous judge’s “en-
trenched negative views.” Br. 60. That assertion lacks a clear basis. Even if
Pina could show that the judge exhibited hostility toward the defense—rather
than appropriate firmness in managing the trial—“reassignment to another
judge on remand is for the rare and exceptional case,” and hostile remarks are
ordinarily not enough. Candelario Del Moral v. UBS Fin. Servs. Inc., 699 F.3d
93, 106-07 (1st Cir. 2012); see also Liteky v. United States, 510 U.S. 540, 555-
56 (1994). Furthermore, given that the judge became familiar with the case
over the course of a trial and sentencing, this case cannot be reassigned with-
out a significant sacrifice of judicial resources.
60
CONCLUSION
For the foregoing reasons, this Court should affirm the judgment of the
district court.
September 6, 2022 Respectfully submitted,
W. STEPHEN MULDROW KENNETH A. POLITE, JR.

United States Attorney Assistant Attorney General
District of Puerto Rico
LISA H. MILLER
MARIANA E. BAUZÁ-ALMONTE Deputy Assistant Attorney General
Assistant United States Attorney
Appellate Chief s/ Kevin Barber
District of Puerto Rico KEVIN BARBER
U.S. Department of Justice
GREGORY CONNER Criminal Division, Appellate Section
Assistant United States Attorney 950 Pennsylvania Avenue, N.W.
District of Puerto Rico Washington, DC 20530
(202) 616-2417
[email protected]
61
CERTIFICATE OF SERVICE
I hereby certify that on September 6, 2022, I electronically filed the fore-
going Answering Brief for the United States with the Clerk of the Court of the
U.S. Court of Appeals for the First Circuit using the appellate CM/ECF sys-
tem.
I certify that all participants in the case are registered CM/ECF users,
and that service will be accomplished by the appellate CM/ECF system.
S/Kevin Barber
Kevin Barber
CERTIFICATE OF COMPLIANCE
1. This brief complies with the type-volume limitation of Federal
Rule of Appellate Procedure 32(a)(7)(B) because it contains 12,999 words (ex-
cluding the parts of the brief exempted by Rule 32(f )).
2. This brief complies with the typeface requirements of Federal
Rule of Appellate Procedure 32(a)(5) and the type-style requirements of Rule
32(a)(6) because it has been prepared in a proportionally spaced, 14-point serif
typeface using Microsoft Word.
S/Kevin Barber
Kevin Barber

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Case: 22-1421 Document: 00117917903 Page: 1 Date Filed: 09/06/2022 Entry ID: 6518146

United States Court of Appeals

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

ANSWERING BRIEF FOR THE UNITED STATES

W. STEPHEN MULDROW KENNETH A. POLITE, JR.

TABLE OF CONTENTS ....................................................................................... i

TABLE OF AUTHORITIES .............................................................................. iv

STATEMENT OF JURISDICTION ...................................................................1

STATEMENT OF THE ISSUES ........................................................................1

STATEMENT OF THE CASE ............................................................................2

I. Procedural History ............................................................................ 2

II. Factual Background .......................................................................... 2

A. Recovery Of Firearms And Ammunition At Pina’s

B. Trial Proceedings ..................................................................... 6

III. Rulings Under Review ...................................................................... 8

SUMMARY OF ARGUMENT ..............................................................................8

I. THE DISTRICT COURT PROPERLY ADMITTED

C. The “Resigned To Prison” Statement Was

1. The Statement Satisfied Rule 801 And

2. Pina’s Objections To Applying Rule 801 Are

D. Any Error In Admitting The Statement Was

1. The Government’s Case Against Pina Was

2. Pina’s Assertions Of Prejudice Are Meritless ..........33

II. ADMITTING THE STATEMENT FROM PINA’S

A. The Ineffective-Assistance Claim Should Not Be

B. Pina’s Sixth Amendment Rights Were Not Violated .........38

1. Attorney Rebollo Was Not An Unsworn

2. There Was No Need For Rebollo To Testify ............43

3. Pina Cannot Show An Adverse Effect On

III. SUFFICIENT EVIDENCE SUPPORTED THE JURY’S

C. The Evidence Established That Pina Knew The

IV. THE DISTRICT COURT DID NOT ABUSE ITS

C. Much Of Millman’s Testimony Would Have Been

D. The Remainder Of Millman’s Testimony Would Have

E. Any Error In Excluding Millman’s Testimony Was

Berger v. United States,

Black v. Cutter Labs.,

Blackburn v. United Parcel Serv., Inc.,

Bourjaily v. United States,

Brookover v. Mary Hitchcock Mem’l Hosp.,

Candelario Del Moral v. UBS Fin. Servs. Inc.,

Cont’l Ore Co. v. Union Carbide & Carbon Corp.,

Conway v. Electro Switch Corp.,

Cummings v. Standard Reg. Co.,

Fonten Corp. v. Ocean Spray Cranberries, Inc.,

Gov’t of V.I. v. Zepp,

Hamling v. United States,

Jewell v. Life Ins. Co. of N. Am.,

Liteky v. United States,

Lopez-Nieves v. United States,

Mister v. Ne. Ill. Commuter R.R. Corp.,

Oscanyan v. Arms Co.,

Paul Revere Variable Annuity Ins. Co. v. Zang,

Perez v. Volvo Car Corp.,

Pilgrim v. Trs. of Tufts Coll.,

Sexual Minorities Uganda v. Lively,

Staples v. United States,