United States Court of Appeals For the First Circuit

No. 22-1421

UNITED STATES OF AMERICA,

Appellee,

v.

RAFAEL PINA-NIEVES,

Defendant, Appellant.

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

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Barron, Chief Judge, Lynch, Circuit Judge, and Kelley, District Judge.*

Martin G. Weinberg, with whom Kimberly Homan was on brief, for appellant. Kevin Barber, United States Department of Justice, with whom W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, Gregory Conner, Assistant United States Attorney, Kenneth A. Polite, Jr., Assistant Attorney General, and Lisa H. Miller, Deputy Assistant Attorney General, were on brief, for appellee.

* Of the District of Massachusetts, sitting by designation. January 30, 2023

- 2 - BARRON, Chief Judge. Rafael Pina-Nieves challenges his

2021 convictions in the United States District Court for the

District of Puerto Rico for, respectively, possessing firearms and

ammunition as a felon in violation of

(g)(1) and

possessing a machinegun in violation of

(o). We

affirm the former conviction but reverse the latter because it is

not supported by sufficient evidence.

I.

In 2015, Pina-Nieves, a music producer and business

owner, pleaded guilty in the District of Puerto Rico to one count

of bank fraud, a felony, in violation of

and 2.

That conviction made it a federal offense under § 922(g)(1) for

Pina-Nieves to possess a firearm or ammunition.

In 2020, the Federal Bureau of Investigation ("FBI"),

while investigating a money-laundering operation, obtained a court

order to wiretap phone lines at a gas station in Puerto Rico that

Pina-Nieves owned. Through the wiretap, the FBI intercepted a

telephone call on February 6 of that year between Pina-Nieves and

one of his employees, Joed Romero-Soler. The call concerned

renovating a house that Pina-Nieves owned in Caguas Real, a gated

community in Caguas, Puerto Rico, so that the house could be rented

or sold.

- 3 - The following exchange occurred during the call, which

took place in Spanish, according to the transcript that sets forth

the official translation:

Pina-Nieves: And what do we do with the safe, motherfucker?

Romero-Soler: Bro, right. You have that there built-in. A whole ordeal, right? No, man, leave it open.

Pina-Nieves: Man, yes.

Romero-Soler: You know, and take out whatever you have . . . and, if you have anything . . . and leave it open behind there so that whoever moves in there will use it. You know, tell Miguel to reset it. You know, that, look . . .

Pina-Nieves: Nah, nah, bro, I have money and I have all sorts of things in there: my guns, rifles, bullets.

Romero-Soler: Well, exactly, have Miguel take out anything he needs to take out. You know what you have in there, right?

Pina-Nieves: Yes, but no, no . . . I'm not giving that motherfucker anything.

Romero-Soler: Well, I don't know . . . and . . . and . . . you know, and the guns? Give them to Johnny.

Pina-Nieves: No, because all of that is [unregistered].

Romero-Soler: Nah, I'll wait until you get here. I mean, yes, yes, when you get here . . . I mean, it's alright. Anyway. . . . Um, yes, when you come, well . . . you know, take out whatever you need to take out and all that and . . . and that's it.

- 4 - Pina-Nieves: No, but the thing is I can't take it out either. That . . . well, yes. . . . The thing is I don't have . . . I would have to put . . . I would have to put a safe somewhere that's not . . . you know, here, in this house, it can't be done, because there's no space. This is really small.

FBI agents executed a warrant to search the Caguas Real

house on April 1, 2020. The search revealed a hidden door and

keypad behind a full-length, floor-to-ceiling mirror, estimated to

be "eight to 10 feet" wide, in the master bedroom. The door led

to a hidden room that contained one Smith & Wesson pistol, one

Glock pistol, multiple boxes of ammunition, various firearm

magazines, a bayonet, a holster, a satellite phone, and a safe

holding more than $135,000 and €10,000 in cash and a certificate

bearing Pina-Nieves's name. The Glock pistol had been modified to

fire fully automatically with a single pull of the trigger.

A grand jury indicted Pina-Nieves in the District of

Puerto Rico on August 13, 2020 on two counts. Count One charged

Pina-Nieves with violating

(g)(1), which makes it

"unlawful for any person . . . who has been convicted in any court

of, a crime punishable by imprisonment for a term exceeding one

year . . . to . . . possess in or affecting commerce, any firearm

or ammunition." Count Two charged him with violating

(o), which makes it "unlawful for any person to transfer or

possess a machinegun." A "machinegun" under § 922(o) is "any

- 5 - weapon which shoots, is designed to shoot, or can be readily

restored to shoot, automatically more than one shot, without manual

reloading, by a single function of the trigger." United States v.

Nieves-Castaño,

, 599 (1st Cir. 2007) (quoting

(b)).

Pina-Nieves was convicted on both counts after a brief

trial and sentenced to 41 months' imprisonment. This appeal

followed.

II.

We start with Pina-Nieves's contention that his § 922(o)

conviction must be reversed because it is not supported by

sufficient evidence. To convict Pina-Nieves of the § 922(o)

charge, the government was required to prove beyond a reasonable

doubt that: (1) he knowingly possessed a machinegun on or about

April 1, 2020; and (2) he had knowledge that the firearm had the

characteristics that brought it within the statutory definition of

a machinegun under § 922(o) (though not that he knew that those

characteristics made the weapon a machinegun). See Staples v.

United States,

(1994); Nieves-Castaño, 480 F.3d

at 599.

Pina-Nieves's sufficiency challenge focuses solely on

what the record shows regarding whether he knew the machinegun

that he was convicted of possessing at the relevant time -- namely,

the modified Glock pistol that the FBI agents found on April 1,

- 6 - 2020 in the hidden room of his Caguas Real house's master bedroom

-- had the characteristics that made it a machinegun under

§ 922(o). To succeed on this challenge, Pina-Nieves must show

that no rational juror could find beyond a reasonable doubt that

Pina-Nieves knew that the modified Glock pistol had those

characteristics. Jackson v. Virginia,

(1979)

("[T]he critical inquiry on review of the sufficiency of the

evidence to support a criminal conviction must be not simply to

determine whether the jury was properly instructed, but to

determine whether the record evidence could reasonably support a

finding of guilt beyond a reasonable doubt."). Our review is de

novo, although we must review the evidence in the light most

favorable to the verdict. United States v. Kanodia,

(1st Cir. 2019).

A.

Pina-Nieves contends that the record shows that the

evidence was not sufficient because the government failed to

present any direct or circumstantial evidence that could support

a reasonable inference that Pina-Nieves had "ever set eyes on the

[modified Glock pistol], much less examined it or fired it." He

notes, for example, that the government did not introduce evidence

that his fingerprints were found on the gun. He adds that the

record contains no evidence that he was the one who purchased the

gun, which the record shows was bought in 2016 in Ohio. He notes,

- 7 - too, that the record contains no evidence to indicate that the gun

had been modified to make it a machinegun at the time that it was

purchased.

Pina-Nieves goes on to contend that these features of

the record take on particular significance due to the absence of

any evidence that, although Pina-Nieves owned the Caguas Real house

"on or about April 1, 2020," he lived at that residence during

that time. Indeed, he notes, there is substantial evidence to

show that he was living at that time either elsewhere in Puerto

Rico or in Florida, as well as evidence that others had access to

both the house and the area where the gun in question was found

during the search on April 1, 2020. Moreover, Pina-Nieves points

out, there is no direct evidence in the record of his having been

present in the Caguas Real house at any time after the Glock pistol

was purchased in Ohio in 2016.

Pina-Nieves winds up his sufficiency challenge by

emphasizing that there is no evidence in the record -- direct or

circumstantial -- as to when, from the time of the weapon's

purchase in Ohio in 2016 to its discovery in his Caguas Real house

on April 1, 2020, it had been modified to be a machinegun. In

consequence, although Pina-Nieves does not dispute that the gun in

question is a machinegun under § 922(o) or that it was found in

his Caguas Real house on April 1, 2020, he contends that, given

that there is no evidence to indicate that he was at that house on

- 8 - that date, the mere presence of that gun in that house on that

date cannot suffice to permit the reasonable inference that he

knew that the gun had the characteristics of being able to fire

automatically.

B.

To counter Pina-Nieves's argument, the government

emphasizes that it may make its case about his knowledge of the

characteristics of the weapon in question based on circumstantial

evidence. See United States v. Ridolfi,

(1st Cir.

2014). It then contends that the record suffices to show that

Pina-Nieves constructively possessed the firearms found in his

Caguas Real house on April 1, 2020, that one of those guns was a

modified Glock pistol that qualifies as a machinegun under

§ 922(o), that the external modification that made the Glock pistol

fully automatic was visible, that Pina-Nieves was acquainted with

a range of weapons and firearms, and that the machinegun in

question was found not just in a house that Pina-Nieves owned but

in a hidden room attached to the master bedroom in that house.

Moreover, the government points to what Pina-Nieves was

heard saying during the intercepted February 6 call. Here the

government notes that, in addition to what Pina-Nieves concedes in

his briefing to us was his reference to "pistols" during that call,

the transcript of the phone call shows that he referred on it to

"my guns" being "unregistered." The government contends that the

- 9 - description of the guns being "unregistered" is significant

because machineguns cannot be registered under federal law. Thus,

the government argues, that description provides support for the

inference, when the evidence is considered as a whole, that

Pina-Nieves knew that one of the guns to which he was referring at

that time had the characteristics of a machinegun.

C.

The evidence certainly suffices to tie Pina-Nieves to

the modified Glock pistol found in his house on April 1, 2020. In

fact, Pina-Nieves does not dispute on appeal that the evidence

suffices to show that he was in constructive possession of that

firearm as of that date. But, we have made clear that a juror may

not reasonably infer merely from the fact that one constructively

possesses a machinegun that the defendant knows what he must under

§ 922(o) about the characteristics of that weapon. See

Nieves-Castaño, 480 F.3d at 599-600.

Moreover, although Pina-Nieves does concede in his

briefing to us that he referred on the February 6, 2020 call to

"pistols," this limited description of those weapons is not direct

evidence that he knew that either weapon had the characteristics

of a machinegun. In addition, his reference on that call to "my

guns" being "unregistered" fails to assist the government in

fending off the sufficiency challenge, because his prior felony

conviction equally could explain why he could not register a

- 10 - firearm. Indeed, we note that the April 1, 2020 search that turned

up the modified Glock pistol at Pina-Nieves's Caguas Real house

discovered two pistols, not one, and yet only one of them qualified

as a machinegun under § 922(o).

Of course, we cannot look at each piece of evidence in

isolation. United States v. Ortiz,

(1st Cir.

1992). But, even when we consider the evidence as a whole, we are

persuaded by Pina-Nieves's argument that the government's theory

of sufficiency impermissibly depends either on speculative

inferential leaps or the stacking of inference upon inference.

See United States v. Guzman-Ortiz,

(1st Cir.

2020).

To conclude that Pina-Nieves not only was in possession

of a machinegun "on or about April 1, 2020" but also knew that the

machinegun could fire fully automatically, a juror would have to

infer that Pina-Nieves had either seen it for long enough to become

familiar with the characteristics of it that made it a machinegun

or had been told at some point that it had those characteristics

even though he had never seen it.

But, as we have explained, there is no evidence in the

record that shows when the Glock pistol was modified, reports

anyone having told Pina-Nieves that the weapon had been so

modified, or places Pina-Nieves at his Caguas Real house at any

time after the Glock pistol's 2016 purchase in Ohio. Moreover,

- 11 - there is evidence that he was living elsewhere from at least 2010

on, as well as evidence that others were in the house during that

time with access to the area where the gun was found. Thus, while

Pina-Nieves does not dispute that the evidence suffices to show

that he constructively possessed the weapon within the relevant

time frame and that it was found in a house that he owned during

that same time frame, we do not see how a rational juror could

make the requisite inference that Pina-Nieves knew that this weapon

had the characteristics of a machinegun other than by engaging in

just the kind of speculation or inference-stacking that cannot

suffice to support a conviction.

D.

The government does contend that our precedent requires

that we conclude otherwise by pointing to our decisions in United

States v. Laureano-Pérez,

(1st Cir. 2015), United

States v. Shaw,

(1st Cir. 2012), and United States v.

Giambro,

(1st Cir. 2008). But, we do not agree.

In Shaw, the government presented evidence that the

defendant had recently handled the gun in question.

(the defendant fired the modified gun and "deftly" unloaded

it). And, in Giambro, the government presented evidence that the

defendant had seen the gun and was therefore familiar with the

obvious "external indications signaling the nature of the weapon."

- 12 -

-31 (quoting Nieves-Castaño, 480 F.3d at 601). There

is no such evidence in the record here.

Moreover, the record in Laureano-Pérez also is not like

the record here. In that case, one of the defendants, Jeffrey

Cummings-Ávila, argued that the evidence did not suffice to support

his § 922(o) conviction because the evidence did not suffice to

establish beyond a reasonable doubt that he knew that the pistols

that had been found in a closed red and black bag during a search

of his apartment had the characteristics of a machinegun -- even

though the evidence did suffice to show that each of the pistols

found in that bag did have those characteristics. See

Laureano-Pérez,

. The defendant contended that was

so because "the government provided no evidence that

[Cummings-Ávila] opened up the bag or was told what the bag

contained."

.

We held, however, that "the cumulation" of four

different strands of "circumstantial evidence" present in the

record in that case was "just enough to sustain" the conviction.

. First, we pointed to the evidence that Cummings-Ávila

"often stored guns and drugs" for a large, armed drug organization.

. Second, we explained that the evidence of

Cummings-Ávila's role in the organization indicated that he was

"trusted by his co-conspirators," which mattered because

"positions of trust often come with increased access to

- 13 - information."

Third, we pointed to the evidence that

Cummings-Ávila was "close" to the organization's leader, as we

concluded that a rational juror could conclude from this evidence

of their closeness that the leader "would have confided in

[Cummings-Ávila] regarding the details of the bag" that was found

in his apartment that contained the machineguns.

.

Finally, we pointed to testimony of a witness having seen

Cummings-Ávila firing .40- or .45-caliber pistols that had been

modified to fire automatically shortly before Cummings-Ávila was

given the bag in question.

.

There is no circumstantial evidence of the requisite

knowledge in the record before us here that is like the evidence

that we held was sufficient in Laureano-Pérez, a case that we

deemed to be "close,"

. For example, there is no witness

testimony that Pina-Nieves had at any time (let alone in close

proximity to the period from February 6, 2020 to April 1, 2020)

handled a pistol that had been modified to be a machinegun or

learned that a weapon that was his had been so modified. Moreover,

there is no evidence that Pina-Nieves often stored guns for a

criminal organization, much less evidence that he was sufficiently

close to the leader of such an organization that he would have

been informed of the details of the weapons he stored.

And, while the record shows a machinegun was found in a

house Pina-Nieves owned, no evidence places him in that house at

- 14 - a time when the machinegun was known to have been in its modified

state. In fact, as we have noted, substantial evidence indicates

that Pina-Nieves was not living there in the years leading up to

the weapon's discovery in that house and that others had access to

it in full.

Our conclusion that the evidence is not sufficient also

aligns with the out-of-circuit precedent that the defendant cites.

See United States v. Rogers,

(11th Cir. 1996)

(reversing the defendant's § 922(o) conviction "[b]ecause the

Government did not introduce any evidence showing that [the

defendant] was aware that [the modified pistol in question] had

been altered to operate as a fully automatic weapon," even though

the pistol was discovered in a black bag beneath the driver's side

seat of the defendant's truck, the defendant had been driving the

truck at the time, the defendant "correctly identified" the pistol

during an interview with a special agent from the Bureau of

Alcohol, Tobacco, and Firearms, and the pistol had been

manufactured as a semi-automatic weapon); United States v. Michel,

(10th Cir. 2006) (reversing the defendant's

conviction for possession of an unregistered sawed-off firearm

that also lacked a serial number in violation of

(d) and 5861(i) because "the government presented absolutely

no evidence that [the defendant] ever observed or handled" the gun

in question and thus could not support the "inferential leap"

- 15 - required for the jury to find that he had knowledge of the gun's

characteristics).

In fact, the government does not attempt to address

Rogers and contends that Michel's reasoning has no application to

this case for reasons that we find unpersuasive. The government

contends that Michel has little bearing here because it establishes

merely that a "fleeting encounter was not enough to establish the

defendant's familiarity with the gun and its characteristics."

But, Michel focused on the brief nature of the defendant's

encounter with the weapon there to explain why there was not

sufficient evidence to prove beyond a reasonable doubt that the

defendant was familiar with the characteristics of that weapon

that made it a sawed-off firearm. See Michel,

-

32. And here, given all the evidentiary gaps that we have

described, a juror could no more reasonably infer from the nature

of Pina-Nieves's tie to the weapon in question that it was beyond

a reasonable doubt that he had seen the modifications that had

transformed it into a machinegun than a juror could have in Michel.

E.

In sum, even though the government has sufficiently

proved Pina-Nieves's constructive possession of the modified Glock

pistol on or about April 1, 2020, based on the circumstantial

evidence that is in the record, the government was required to

prove more to secure this conviction. And Pina-Nieves has

- 16 - persuasively made the case that the government failed to do so

because it failed to identify any evidence in the record that could

support a finding beyond a reasonable doubt that he knew as of the

relevant time that the modified Glock pistol found had been so

modified. See Nieves-Castaño, 480 F.3d at 602. Thus, we conclude

that Pina-Nieves's § 922(o) conviction must be reversed.

III.

Pina-Nieves separately contends that both his § 922(o)

conviction and his § 922(g)(1) conviction must be vacated due to

trial errors. The first claimed error concerns the District

Court's decision to admit certain evidence pursuant to Federal

Rule of Evidence 801(d)(2)(C) and (D). The second claimed error

concerns the District Court's decision to exclude certain evidence

on relevancy grounds pursuant to Federal Rule of Evidence 401.

We need not address Pina-Nieves's contention that his

§ 922(o) conviction must be vacated due to these asserted trial

errors because it must be reversed on sufficiency grounds. We do,

however, need to address his contention that these claimed trial

errors require that we vacate his § 922(g)(1) conviction. Our

review is for abuse of discretion because Pina-Nieves asserted

each error below. See United States v. Velazquez-Fontanez,

(1st Cir. 2021). But, although we are persuaded that the

District Court did make the two asserted errors, they do not

require that we overturn the conviction because we agree with the

- 17 - government that the errors were harmless as to that conviction.

See United States v. Piper,

(1st Cir. 2002). And

that is so, we add, even if we were to consider their cumulative

effect.

A.

We begin with the claimed error that implicates Rule

801. We will first set forth the relevant facts. We will then

explain why we conclude that there was error.

1.

Three days before the first day of trial, Pina-Nieves

filed a motion to dismiss the indictment. Pina-Nieves's trial

counsel, Francisco Rebollo-Casalduc, signed and filed the motion.

The motion argued that the government had violated

Pina-Nieves's Sixth Amendment right to counsel by engaging in

prosecutorial misconduct, including by placing an informant in the

defense camp who reported to the government "the content and

substance of the confidential communications between Mr.

Pina-Nieves and his attorneys." The motion further argued that

the information reported included Pina-Nieves's "personal

evaluation of plea offers and counter offers and [Pina-Nieves's]

thoughts on potential defense trial strategies." And, the motion

contended, the government's alleged misconduct prejudiced

Pina-Nieves because the information that the government received

- 18 - had caused federal prosecutors to harden their plea-bargaining

position such that the "bottom line . . . involved time in prison."

At one point, the motion stated the following:

As Exhibit 1 reflects, on October 2, 2020, the government informant, whose name is blacked out in the report, informed case agent Justin Turner that "Pina had a meeting with his attorneys, after having received evidence form [sic] the U.S. Attorney's Office associated with his pending charges and trial. As a result, Pina gathered his family and associates on his new yacht to discuss the case. Pina was advised by his attorneys he will most likely have to spend time in prison, as a result of the charges. Pina's attorneys will reach out to the U.S. Attorney's Office in the near future to broker a plea agreement. During the meeting on the yacht, Pina prepared his family and associates for the likelihood of his serving time in prison and handed down his responsibilities to his associates on how to run the business in his absence." Just the fact that the government learned that the defendant was resigned to the fact that he would have to spend time in prison is a tremendous advantage to have in plea negotiations. Indeed, the clients the undersigned counsel represents typically would not accept a plea offer involving a prison sentence under any circumstances, and that is a tremendous advantage to have in plea negotiations. Here, Mr. Pina-Nieves lost that advantage, and any upper hand or leverage, in his plea negotiations, on account of the government's violation of his sacred right to confidential attorney-client communications. With this advantage, the government could adjust its negotiation strategy, knowing it could always maintain a string [sic] hand and a bottom line which involved time in prison. This makes the plea negotiations which have taken place to date, and any that could have taken place in the future, a complete sham.

- 19 - (Emphasis added).

The government opposed the motion. But, in doing so,

the government notified Pina-Nieves that it intended to admit into

evidence pursuant to Rule 801(d)(2)(C) and Rule 801(d)(2)(D) the

sentence from the motion's above-quoted passage that we have

underlined: "Just the fact that the government learned that the

defendant was resigned to the fact that he would have to spend

time in prison is a tremendous advantage to have in plea

negotiations."

Rule 801(d)(2) provides in relevant part that a

statement is not hearsay if it is "offered against an opposing

party and: . . . (C) was made by a person whom the party authorized

to make a statement on the subject; [or] (D) was made by the

party's agent or employee on a matter within the scope of that

relationship and while it existed." Rule 801(a) defines a

"statement" as "a person's oral assertion, written assertion, or

nonverbal conduct, if the person intended it as an assertion."

Pina-Nieves opposed the admission into evidence of the

sentence in question on the ground that it did not fall within

either Rule 801(d)(2)(C) or Rule 801(d)(2)(D) and was not otherwise

admissible. The District Court disagreed after concluding that,

"[a]s defense counsel, Rebollo is authorized to represent Pina

before the Court. Rebollo's statements are, thus, attributable to

- 20 - Pina." United States v. Pina-Nieves,

, 275

(D.P.R. 2021).

Pina-Nieves continued to object at trial to the

admission of the sentence in question on the ground that it did

not fall within either Rule 801(d)(2)(C) or Rule 801(d)(2)(D), but

to no avail. In addition, Pina-Nieves objected to the government's

request on the first day of trial that the District Court take

"judicial notice" of the sentence in the motion to dismiss. The

District Court nonetheless instructed the jury, prior to the

calling of any witnesses, as follows:

Judicial notice is taken that on December 11, 2021, counsel for Defendant Rafael Pina-Nieves made the following statement in a motion filed in the Electronic Docket and Case Management System in this court, at Entry Number 168, as follows: Quote:

Just the fact that the government learned that the defendant was resigned to the fact that he would have to spend time in prison is a tremendous advantage to have in plea negotiations.

This judicially-noticed fact can be so accurately and readily determined that it cannot be reasonably disputed. You may, therefore, reasonably treat this fact as proven, even though no evidence has been presented on this point.

As with any fact, however, the final decision whether to -- whether or not to accept it is for you to make. You are not required to agree with me.

- 21 - At the close of evidence, and over Pina-Nieves's

objection, the District Court repeated this instruction almost

verbatim. The government then began its closing argument by

quoting the sentence at issue and arguing that it was "evidence of

consciousness of guilt." The government also included the sentence

in large text in a PowerPoint presentation it used during closing

argument and rebuttal. During its rebuttal, the government

revisited the sentence at issue, calling it "incriminating

evidence coming also from the defense camp." Then, after quoting

the sentence once more, the government stated: "That wasn't a

witness that we brought to testify something the defendant told

that witness. No. No. No. That was the defense attorneys in

black and white, in a motion. Two words come to mind from our

behalf: Thank you. More evidence of guilt."

2.

The government contends that the "just the fact that"

sentence is a "written assertion," see Rule 801(a), and so a

"statement" within the meaning of Rule 801(d)(2)(C) and

801(d)(2)(D). That is so, the government contends, because the

sentence makes a legal argument about why the government's alleged

misconduct would be prejudicial that has "embedded" within it an

assertion of fact about Pina-Nieves's state of mind.

The government goes on to contend that the sentence

qualifies as an admissible statement under those subsections of

- 22 - Rule 801(d)(2). That is so, according to the government, because

the assertion of fact that the sentence makes about Pina-Nieves's

state of mind is attributable to Pina-Nieves himself, given that

Pina-Nieves's counsel, Rebollo-Casalduc, filed the motion that

contains the sentence.

But, the introductory phrase "just the fact that" in the

sentence at issue is most naturally read to be merely the

colloquial means by which the beginning of the sentence conveys

the consequence that is then spelled out in the remainder of that

sentence. So understood, the sentence is most naturally read

merely to be making a legal argument about the prejudice that would

follow if the government had "learned" a certain fact about

Pina-Nieves's state of mind through alleged misconduct, rather

than to be making such a legal argument while also asserting that

the government had learned of any fact about Pina-Nieves's state

of mind.

The government does point out that the motion to dismiss

the indictment argues that the government's misconduct prejudiced

Pina-Nieves by enabling the government to obtain access to

information about Pina-Nieves's state of mind and that this access

to that information in turn gave the government an "extra advantage

in plea negotiations." The government goes on to contend that it

could have obtained that "extra advantage" only if Pina-Nieves

was, in fact, resigned to spend time in prison. Thus, the

- 23 - government argues, the sentence in question, when read in the

context of the motion as a whole, must be read to be impliedly

making the factual assertion that Pina-Nieves was so resigned and

not merely to be making the legal argument that the government's

misconduct would be prejudicial if the government had learned that

Pina-Nieves had that state of mind.

We must focus, however, on what the sentence that was

admitted into evidence pursuant to Rule 801 itself says. It is

that sentence -- and that sentence alone -- that was deemed to

qualify as a "statement" admissible under Rule 801. Yet, with

that focus in mind, we conclude that the government's "reading is

not compelled by the language of the [sentence]," Harrington v.

City of Nashua,

(1st Cir. 2010).

True, the sentence appears as part of the motion's

broader argument about how the government's asserted misconduct is

prejudicial. But, the sentence does not make an assertion about

what Pina-Nieves's state of mind was or even a representation that

the government had learned of his state of mind. It explains how

prejudice could flow from the government having "learned" such a

"fact" without thereby itself asserting that the government had

learned any such fact.

Nor need the sentence have made any such factual

assertion to have advanced the broader prejudice argument that the

motion to dismiss the indictment makes. In context, the sentence

- 24 - served the useful function of spelling out how the government's

knowledge of a fact about Pina-Nieves's state of mind with respect

to being resigned to spend time in prison could have hurt

Pina-Nieves in plea negotiations insofar as the government had

such knowledge.

Thus, the government fails to demonstrate that the

sentence in question included an assertion of fact about

Pina-Nieves's state of mind within the legal argument that it was

making about prejudice. See

Accordingly, we agree with

Pina-Nieves that the District Court abused its discretion in

admitting the sentence in question pursuant to Rule 801. See Gill

v. Maciejewski,

(8th Cir. 2008) (counsel's

statements during a criminal trial not admissible under Fed. R.

Evid. 801(d)(2)(C) or (D) where opposing party took "unwarranted

liberties with the context of the statement"); United States v.

Blood,

(4th Cir. 1986).

B.

We now turn to the claimed error by the District Court

that implicates Rule 401. It concerns the District Court's

exclusion of the testimony of Pina-Nieves's realtor in Miami,

Florida, Jordan Millman. We first lay out the pertinent facts.

We then explain why we conclude that there was error.

- 25 - 1.

On the sixth day of trial, Millman testified that he met

Pina-Nieves at the end of 2010, when Pina-Nieves was looking at

apartments in Miami, and that Millman had personal knowledge of

Pina-Nieves living in Miami in 2010 because Millman lived in the

same building. The government then objected to Millman's

testimony, pursuant to Federal Rule of Evidence 401, which provides

that "[e]vidence is relevant if: (a) it has any tendency to make

a fact more or less probable than it would be without the evidence;

and (b) the fact is of consequence in determining the action."

The District Court struck the testimony from Millman

that he had already provided and barred the remainder. Pina-Nieves

subsequently made the following offer of proof to no avail:

[Millman] would have testified that in 2010, he assisted Mr. Pina in renting an apartment at the Epic, that he lived in that apartment through 2013. That in 2013, that apartment was sold, and he moved to Aventura, and that in 2016, he assisted Mr. Pina in starting to -- towards the end of 2016, in starting to look for properties to buy, that he purchased an apartment in 2019. He has personal knowledge that he lived there, and that he sold that apartment in 2021 and bought a house in north Miami.

2.

Our standard of review for a Rule 401 ruling by a

district court is quite deferential, given the trial judge's

closeness to the record. See Bielunas v. F/V Misty Dawn, Inc.,

- 26 -

(1st Cir. 2010). Nonetheless, "[r]elevancy is a

very low threshold . . . . And 'the evidence need not definitively

resolve a key issue in the case,' but rather 'need only move the

inquiry forward to some degree.'" United States v. Cruz-Ramos,

(1st Cir. 2021) (quoting Bielunas,

).

Pina-Nieves no doubt could have been clearer in

explaining to the District Court how the testimony from his realtor

would have advanced his defense. Nonetheless, we are persuaded

that the excluded Millman testimony crossed the low threshold for

relevance that Rule 401 establishes.

According to Pina-Nieves's proffer, Millman would have

testified that he had "personal knowledge" that Pina-Nieves

"lived" in the Miami apartment that he purchased in 2019 and that

he did not sell that apartment until 2021. That testimony was

relevant to Pina-Nieves's contention that he was so distant from

the Caguas Real house that he could not have either intended to

exercise dominion and control over the weapons in question or known

of the characteristics of the modified Glock pistol that made it

a machinegun.

Millman's testimony also provided support for finding

that Pina-Nieves had residences outside of Puerto Rico from prior

to the time that the modified Glock pistol had first been purchased

in Ohio in 2016 through the time he is alleged to have

- 27 - constructively possessed the weapon. In that respect, too, then,

Millman's testimony would have "move[d] the inquiry forward to

some degree" by bolstering Pina-Nieves's contention that he was

sufficiently removed from the goings-on at the Caguas Real property

on or about April 1, 2020 that he lacked both the intent to exercise

dominion and control over the weapons found there at that time and

the knowledge of the characteristics of the modified Glock pistol

that made it a machinegun.

C.

We turn, then, to the government's arguments that each

of the errors was harmless. And, that is, the government contends,

even if we account for their cumulative effect. See United States

v. Sepulveda,

(1st Cir. 1993). For the

reasons we will next explain, we agree with the government.

To prove that Pina-Nieves was guilty of the § 922(g)(1)

charge, the government was required to prove beyond a reasonable

doubt that Pina-Nieves was a felon who possessed firearms or

ammunition on or about April 1, 2020. Pina-Nieves stipulated that

he became a felon in 2015. Thus, the only element in dispute is

the possession element, which the government contends is satisfied

solely due to the evidence in the record that it contends shows

that Pina-Nieves constructively possessed firearms or ammunition

at the time specified in the underlying charge.

- 28 - To show such constructive possession, the government was

required to prove beyond a reasonable doubt that, on or about April

1, 2020, Pina-Nieves knowingly had the power and intention of

exercising dominion and control over firearms or ammunition. See

United States v. Tanco-Baez,

(1st Cir. 2019). And

to so prove, the record, as a whole, "must contain evidence of

'some action, some word, or some conduct that links the individual

to the [firearm] and indicates that he had some stake in it, some

power over it.'" Ridolfi,

(alteration in original)

(quoting United States v. McLean,

(1st Cir.

2005)).

The wrongly admitted Rule 801 evidence was plainly

highly prejudicial with respect to any disputed element and thus

with respect to the possession element. See United States v.

Canty,

(1st Cir. 2022). Indeed, the government

emphasized that evidence in its closing argument and rebuttal and

described it as "incriminating," while also stating that it came

from the "defense camp."

In addition, the Millman testimony was relevant to the

question of Pina-Nieves's constructive possession of the firearms

and ammunition in question as of the date set forth in the

underlying charge. And, while the government contends that the

Millman testimony was merely cumulative of other evidence that

showed that "Pina resided during the pertinent time period in

- 29 - places other than the Caguas Real house," it would have added,

with respect to Pina-Nieves's connection to the Miami apartment,

Millman's "personal knowledge that [Pina-Nieves] lived there" from

2010 through 2021. That testimony also would have provided, as

Pina-Nieves contends, details about "Pina's more recent

acquisitions of property, and residence in, Miami" while the

"development of Millman's relationship with Pina over time would

have provided important background regarding how Millman and Pina

became sufficiently close friends that Millman was in a position

to have personal knowledge of how much time Pina spent in Miami."

Nonetheless, the question we must answer in assessing

harmless error is not merely whether the two errors, either alone

or in combination, had some prejudicial effect as to the possession

element, as they surely did. The question is whether the

government has met its burden to show that it is "highly probable"

that the errors, even if considered in combination, did not affect

the guilty verdict on the § 922(g)(1) charge. See Piper,

; Sepulveda,

. And, in answering that

question, we cannot ignore the strength of the evidence of guilt

with respect to the conviction at issue, see Sepulveda,

, which we conclude is overwhelming as to Pina-Nieves's

constructive possession.

Pina-Nieves does argue -- based on the "outsized stress"

that the government placed on the wrongly admitted "just the fact

- 30 - that" sentence -- that the Rule 801 error was not harmless because

"the government knew full well the devastating impact the evidence

would have upon the jury's ability to fairly weigh the evidence

against Pina." Pina-Nieves nowhere disputes in his briefing to

us, however, the government's contention that he could be convicted

on the charged § 922(g)(1) offense based on his having

constructively possessed firearms or ammunition on February 6,

2020. And that is significant because, as Pina-Nieves admits, the

transcript of the February 6 phone call shows that he referred in

that call, which concerned what was in the Caguas Real house, to

"my guns" -- or, as he concedes in his briefing, "pistols" -- as

well as ammunition being there.

To be sure, Pina-Nieves contends that the transcript

does not show -- let alone overwhelmingly -- that he had the intent

to exercise dominion and control over any such weapons. He argues

that the transcript shows, in fact, the opposite, as he contends

that it shows that he "declin[ed] to exercise dominion and control"

over the guns and bullets to which he referred on the phone call

and "even indicat[ed] that he cannot exercise dominion and control

over them." Thus, on his telling, the transcript of the February

6 call shows him "rejecting every suggestion of what might be done

with the weapons and ammunition and deferring any decision until

he returned to Puerto Rico at some unspecified time in the future."

- 31 - But, the transcript of the February 6 phone call shows

that the call took place in the context of Pina-Nieves deciding

how to prepare the Caguas Real house that he owned to be rented or

sold by deciding what items he intended to store in a warehouse,

what items he intended to give away, what items he intended to

keep with the Caguas Real house, and what items he intended to

keep for himself either at the Caguas Real house or his second

house in Puerto Rico, where all parties agree that Pina-Nieves

actually lived when in Puerto Rico. And, according to the

transcript, Pina-Nieves not only first raised the issue of the

"safe" and later told the other party to the call, Romero-Soler,

what the "safe" contained but also left no doubt it contained guns

and bullets that were his, as he described the "safe" as

containing: "my guns, rifles, bullets" (emphasis added).

Moreover, and crucially, the transcript does not just

show that Pina-Nieves understood the weapons and ammunition to

which he referred to be his own. It also shows that when

Romero-Soler suggested that Pina-Nieves "have Miguel take out

anything he needs to take out," then "reset [the keypad on the

hidden room's door]" and "leave [the door] open behind there so

that whoever moves in there will use it," Pina-Nieves responded

emphatically in the negative. Because prohibiting action is as

much an exercise of dominion and control as allowing action, the

transcript therefore shows that Pina-Nieves claimed on February 6,

- 32 - 2020 that guns and ammunition that were located in a private area

of the house that he owned were his own, that on that date an

associate of his had sought out his direction about what to do

with those guns and that ammunition, and that he had responded to

that associate's request for that direction by giving it in no

uncertain terms.

We thus do not see how the transcript may be read other

than to show that Pina-Nieves had "some stake in" the firearms and

ammunition he called "my" guns and bullets as of February 6, 2020,

see Ridolfi,

, a date that Pina-Nieves does not

dispute is "on or about April 1, 2020." Accordingly, the

government has met its burden to show harmless error because the

overwhelming nature of the evidence of Pina-Nieves's constructive

possession of weapons and ammunition "on or about April 1, 2020"

makes it "highly probable" that the evidentiary errors did not

affect the verdict of guilt on the § 922(g)(1) charge. See Piper,

298 F.3d at 56–58.1

1 Pina-Nieves does argue that the exclusion of the Millman evidence deprived him under the U.S. Constitution of his Fifth and Sixth Amendment rights to mount a defense and that the admission of the "just the fact that" sentence from his motion to dismiss deprived him under the U.S. Constitution of his Sixth Amendment right to conflict-free counsel. But, we need not address those challenges in any detail because each fails for the same reasons that we conclude that the Rule 801 and Rule 401 errors are harmless: the evidence of guilt concerning the only disputed element of this conviction is overwhelming. See United States v. Cardona-Vicenty,

(1st Cir. 2016); United States v. Pizarro,

(1st Cir. 2014).

- 33 - IV.

Pina-Nieves's § 922(g)(1) conviction is affirmed, while his

§ 922(o) conviction is reversed.

- 34 -