United States Court of Appeals For the First Circuit

No. 21-1631

UNITED STATES OF AMERICA,

Appellee,

v.

ADILSON TEIXEIRA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Kayatta, Selya, and Gelpí, Circuit Judges.

Gregory M. Lipper and LeGrand Law PLLC on brief for appellant. Rachael S. Rollins, United States Attorney, and Randall E. Kromm, Assistant United States Attorney, on brief for appellee.

March 10, 2023 SELYA, Circuit Judge. This appeal poses a vexing

question as to the extent to which a judge may factor his personal

knowledge of a subject into the decisional calculus. Concluding,

as we do, that the court below did not stray into forbidden terrain

in this regard and that the record is otherwise free from

reversible error, we affirm the judgment below.

I

We briefly rehearse the relevant facts and travel of the

case. In November of 2016, defendant-appellant Adilson Teixeira

pleaded guilty to drug-trafficking and firearms charges. See

, 841(a)(1);

(g)(1). On February 2,

2017, the district court sentenced Teixeira to a forty-one-month

term of incarceration to be followed by a three-year term of

supervised release.

Teixeira served his prison sentence and was released in

April of 2019. His supervised release term proved to be

tumultuous: the first two years included a series of violations,

revocation hearings, and consequent modifications of the term.

The district court found that Teixeira had violated the conditions

of his supervised release by, among other things, associating with

persons involved in criminal activity, using a controlled

substance, and committing a crime (operating a motor vehicle with

a suspended license). The upshot was that Teixeira began serving

a new term of supervised release on March 19, 2021.

- 2 - Past proved to be prologue, and on July 1, 2021, a

preliminary revocation hearing was held before a magistrate judge

to address a new complement of alleged violations. The government

asserted that Teixeira had failed a drug test, had failed to

participate in a substance abuse counselling program, had

possessed a firearm, and had committed a crime by possessing a

firearm as a convicted felon. Following this hearing, the

magistrate judge ordered Teixeira detained.

The district court held a final revocation hearing on

August 10, 2021. Teixeira did not dispute the two drug-related

violations, conceding that he had failed a drug test and had failed

to take part in a drug counselling program. But he disputed the

charges that he had possessed a firearm.1

At the hearing, the government called a probation

officer, Julianne Robinson, as a witness. Robinson testified that

she had received two recordings of Snapchat videos2 from the

Taunton, Massachusetts police department, one depicting Teixeira

in a music studio holding what appeared to be a firearm and the

other depicting Teixeira driving a vehicle with what appeared to

1 The firearms offenses were classified as Grade A violations of supervised release, which are the most serious. See USSG §7B1.1(a)(1).

2 Snapchat is a social media app through which users can send or post images or videos that disappear either after a recipient views them or after a certain period of time has elapsed.

- 3 - be a firearm in his lap. In the second video, a man — later

identified as James Martin — was sitting in the front passenger

seat. Martin was a friend of Teixeira's who had a side business

involving the production of music videos.

The government then called special agent Patrick Briody,

a ten-year veteran of the Federal Bureau of Alcohol, Tobacco,

Firearms and Explosives. When asked about the music studio video,

Briody explained that he "saw what appeared to be possibly a Glock

pistol with an extended magazine in it, having the characteristics

of what I recognize to be a firearm." He said that the gun in the

video appeared to be a Glock 26 and expounded on the particular

characteristics of Glock 26 pistols. With respect to the vehicle

video, he testified that "[s]imilarly, . . . the item [seen on

Teixeira's lap] had characteristics consistent with what would be

a firearm." Briody went on to explain that, after reviewing the

videos, he interviewed Martin, who told him that the weapon

Teixeira was holding in the vehicle video was one of Martin's three

prop guns. Martin later provided Briody with two of his prop guns

but could not produce the third. Briody testified that the two

prop guns that Martin showed him were not the guns depicted in the

videos.

On cross examination, Briody was presented with two

photographs. Although it is not entirely clear from the record,

these photographs seem to have been photographs of Martin's third

- 4 - prop gun, with one of the photographs depicting the weapon with an

extended magazine. Briody examined the first photograph and stated

that he "would say that could be a firearm" but "it could be a

replica." It was, however, "definitely different" than the weapon

depicted in the music studio video and "would appear to be

different" than the weapon depicted in the vehicle video. He also

testified that the gun shown in the second photograph was

inconsistent with the characteristics of the guns depicted in the

videos.

To buttress its case, the government presented an

affidavit from Briody that had been executed in support of an

application for a warrant to search Teixeira's cellphone. Briody

testified that the search related to a separate investigation into

firearms trafficking between Ohio and Massachusetts. The

affidavit relied on electronic communications (text messages)

between Teixeira and an alleged co-conspirator, which appeared to

discuss the trafficking of firearms. The affidavit also included

the summary of an interview that Briody had conducted with a man

in Ohio labelled K.M., who the affidavit stated had admitted to

purchasing firearms in Ohio for resale by the co-conspirator in

Massachusetts. And in addition, the affidavit described the

- 5 - movement of funds by means of Cash App3 between Teixeira and the

co-conspirator and between Teixeira and K.M.

Teixeira's counsel objected to the admission of the

affidavit on the ground that it included "communications from text

messages from another phone from another gentleman who apparently

is a cooperator or a coconspirator" and "interviews with a

gentleman in Ohio who's not before the Court." In counsel's view,

the affidavit "contain[ed] hearsay evidence," and counsel

complained that he could not "cross-examine an affidavit. Under

Rule 32.1, I'm entitled to inquire into adverse witnesses." The

court responded that "[t]he confrontation clause doesn't apply in

a probation violation hearing," overruled the objection, and

admitted the affidavit. Although Teixeira's counsel cross-

examined Briody, he did not elicit any testimony from him

concerning the Ohio investigation.

In his defense, Teixeira called Martin, who testified

that he had produced the Snapchat videos. He asserted that the

guns depicted in the videos were props.

The district court concluded that the government had

shown by a preponderance of the evidence that at least one of the

weapons depicted in the videos was a real firearm and that,

3 Cash App is a mobile app for peer-to-peer money transfers.

- 6 - therefore, Teixeira had violated the conditions of his supervised

release:

I am convinced, and here I am relying principally on the agent's opinion, especially with respect to the Glock 26. Perhaps I shouldn't know this, but I am a firearm[s] owner, and I actually know these guns pretty well; and that is a Glock 26 in my judgment, at least by a preponderance of the evidence, as I understand my own opinion being corroborated and relying on the agent's testimony. I do credit it, and, therefore, I do find that there is a violation of conditions, and I'm going to revoke supervised release.

Having made this determination, the court sentenced

Teixeira to a two-year term of imprisonment. This timely appeal

followed.

II

A district court may revoke a term of supervised release

if the government proves by a preponderance of the evidence that

the releasee violated a release condition. See United States v.

Colón-Maldonado,

(1st Cir. 2020);

(e)(3). The Federal Rules of Evidence do not apply in

revocation proceedings, but the evidence presented must be

reliable. See United States v. Portalla,

(1st

Cir. 1993).

Teixeira's claims of error all relate to the district

court's determination that the government proved, by a

- 7 - preponderance of the evidence, that he possessed a firearm (in

violation of conditions of his supervised release). Teixeira

challenges the judge's reference to his (the judge's) knowledge of

firearms, the admission of the affidavit, and whether the violation

was shown by a preponderance of the evidence. We consider these

interrelated claims sequentially, mindful that the district

court's determination rested upon a finding that the videos showed

Teixeira handling one or more real firearms.

III

Teixeira's most loudly bruited claim is that the

district court's reference to its own familiarity with firearms

during its ruling at the conclusion of the revocation hearing was

in error. We divide our discussion of this claim into two parts.

A

Our starting point is the standard of review. Preserved

claims of error arising out of a judge's handling of revocation

proceedings are typically reviewed for abuse of discretion. See

United States v. Mulero-Díaz,

(1st Cir. 2016).

Here, however, the government insists that Teixeira's failure to

object to the district court's statements below relegates this

claim of error to plain error review.4 Teixeira responds that he

4 Review for plain error is a "heavy burden." United States v. Correia,

(1st Cir. 2022). Under that standard, the appellant must prove "(1) that an error occurred (2) which was clear or obvious and which not only (3) affected the defendant's

- 8 - had no meaningful opportunity to object to the district court's

statements, which were made at the conclusion of the revocation

hearing as part of the court's oral decision.

When a party fails to make a contemporaneous objection

below, a counterpart claim of error is ordinarily subject to plain

error review on appeal. See United States v. Franklin,

(1st Cir. 2022). But that rule is not absolute. If a

party did not have a fair opportunity to object to a particular

ruling below, a counterpart claim of error is not relegated to

plain error review. See, e.g., United States v. Mojica-Rivera,

(1st Cir. 2006); Fed. R. Crim. P. 51(b). For an

opportunity to object to be sufficient, it "must have arisen prior

to the trial court's entry of judgment." United States v.

Rodriguez,

(1st Cir. 2019). The "mere

possibility that an aggrieved party might be able to file a motion

for reconsideration is not the functional equivalent of the

opportunity to object."

In this instance, the district court did not refer to

its own knowledge of firearms until the conclusion of the hearing

when it was rendering a bench decision. Teixeira had no reason to

anticipate that such a statement would be forthcoming. And once

substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings." United States v. Duarte,

(1st Cir. 2001).

- 9 - its bench decision was announced, the court immediately shifted

gears and went on to a different phase of the proceeding (the

sentence to be imposed). The hearing ended soon thereafter.

Taking a practical view of the circumstances, we

conclude that Teixeira did not have a fair opportunity to object,

on the spot, to the judge's allusion to his personal knowledge of

firearms. When making his ruling that a violation had occurred,

the judge did not invite comments from the lawyers but, rather,

proceeded immediately to the separate question of the sentence to

be imposed. Interrupting a judge in mid-stride is risky business

for a lawyer, and Teixeira's counsel was caught between a rock and

a hard place. We hold, therefore, that Teixeira's claim of error

is not relegated to plain error review. Our review, instead, is

for abuse of discretion.

B

We turn next to the merits. We start by acknowledging

that a judge presiding over a revocation hearing must act in two

roles when deciding whether a violation has occurred: the judge

must be both an "unbiased neutral arbiter[]" and a factfinder.

United States v. Ayala-Vazquez,

(1st Cir. 2014).

In neither of these capacities is it permissible for a judge to

undertake his own extrajudicial investigation of the facts. A

judge may not, for example, unilaterally reach out to witnesses,

make an ex parte trip to view the scene of the dispute, or undertake

- 10 - his own fact-gathering outside of court. See Lillie v. United

States,

(10th Cir. 1992); see also State v.

Malone,

, 464-65 (Minn. 2021); State v. Baker,

(Mont. 1983). So, too — apart from facts susceptible

to judicial notice, see Fed. R. Evid. 201(b) — it is impermissible

for a judge to consider evidence that has not been introduced.

See United States v. Berber-Tinoco,

(9th Cir.

2007); Fox v. City of W. Palm Beach,

(5th

Cir. 1967); cf. Warger v. Shauers,

, 51-52 (2014)

(discussing types of knowledge that jury may not consider when

finding facts). If a judge oversteps these bounds, the judge, in

effect, impermissibly assumes the role either of a witness, see

United States v. Paiva,

(1st Cir. 1989), or of

an advocate.

The rule, though, is more easily stated than applied.

After all, it is always permissible for a judge, acting in his

capacity as a factfinder, to use his knowledge and experience to

assess the credibility of witnesses and to evaluate the evidence.

See Hersch v. United States,

(6th Cir. 1983).

But applying one's knowledge in assessing whether a fact is

adequately proven is not the same as introducing a new fact into

evidence. Just as jurors may permissibly rely on their knowledge

and experience to evaluate evidence, see United States v. Ortiz,

(1st Cir. 1992), so may a judge.

- 11 - Here, Teixeira labors to portray the district judge as

having strayed into forbidden terrain. He characterizes the

judge's statements as "relying on personal evidence" from

"personal observations about his own, private gun collection" and

"comparing his own firearms to the objects depicted in the

video[s]." Those actions, Teixeira complains, "flouted settled

limits on judges' ability to rely on their own evidence or

investigation."

We reject Teixeira's plaint. A judge, sitting as a

factfinder, is allowed — indeed, obliged — to bring to bear his

own knowledge and experience in evaluating the evidence admitted

in the case. See Hersch,

. There is nothing in

the record to suggest that the judge in this case exceeded the

bounds of that authority. Fairly read, the record belies

Teixeira's assertion that the judge relied upon "a specific

comparison based on evidence not shared with the parties." Nor is

there anything to suggest that the judge either conducted an

independent investigation into facts pertinent to the case or

introduced any new evidence into the decisional calculus. The

judge — in his own words — "rel[ied] principally on the agent's

opinion" in reaching the conclusion that at least one of the guns

was real. We find nothing amiss in the fact that the judge's

personal knowledge and experience informed his assessment of the

- 12 - evidence and — as the judge stated — "corroborated" his decision

to credit Briody's testimony.

Teixeira rejoins that our opinion in Chart House, Inc.

v. Bornstein,

(1st Cir. 1980), demands a contrary

result. We disagree.

In that case, the district court denied a preliminary

injunction sought by the holder of a registered service mark

seeking to enjoin another business's use of a similar name. See

. The court had been presented with detailed evidence

tending to show intent to sow confusion, but concluded summarily

that there was "little likelihood of confusion between the two

establishments."

We reversed, explaining that the district

court had failed to make any adequate or accurate findings as to

the evidence. See

.

At the same time, we "note[d] our concern" regarding the

judge's commentary during the hearing, in which he extemporized:

"I don't know how many times I drove by [the defendant's business],

and I was never tempted to stop — . . . . It struck me as one of

those selfcontained apartment units . . . ."

, 11 n.4

(alterations in original). We expressed our disapproval, stating

that for a trial court "to interject its personal evidentiary

observations is against basic principles" and that, in any event,

its personal conclusions contradicted the record evidence.

, 11 n.4.

- 13 - Teixeira argues that the district court's conduct in

this case rests on an even more porous foundation: the district

court's observations in Chart House, the argument goes, were at

least based on its perusal of public roads, rather than a private

collection of firearms. See

. Teixeira's argument,

however, glosses over a critical distinction between Chart House

and the case at hand. In Chart House, the court had gained specific

extrajudicial knowledge of the evidence by independent

investigation (driving by the defendant's business) and used that

information to assess the likelihood of confusion. See

Here,

by contrast, it is clear from the district judge's statements that

he undertook no independent investigation but, rather, simply

applied his previously acquired knowledge of a particular subject

to the case before him. Put another way, the judge did no more

than use his own background knowledge and experience to assess the

evidence introduced in the case. That was the judge's job, and we

discern no abuse of the district judge's discretion in his

statements regarding his knowledge of firearms.

IV

Teixeira next assails the admission of Briody's

affidavit, which incorporated text messages between Teixeira and

an alleged co-conspirator and a summary of Briody's interview with

K.M. Teixeira submits that the admission of the affidavit abridged

his rights of confrontation and due process. See U.S. Const.

- 14 - amends. V, VI. Relatedly, Teixeira asserts that the district court

abused its discretion in admitting the affidavit without

conducting the balancing required by Federal Rule of Criminal

Procedure 32.1(b)(2)(C). Had this balancing been conducted, he

submits, the affidavit would have been excluded.

A

We start with Teixeira's constitutional claims. His

principal plaint — that his right to confrontation was abridged —

implicates the Sixth Amendment. See U.S. Const. amend. VI.

Because the district court treated Teixeira's argument as

referring to the Sixth Amendment, we treat this claim as preserved.

Cf. United States v. Rivera-Berríos,

(1st Cir.

2020) (explaining that to preserve a claim of error, "[i]t is

enough if the objection is 'sufficiently specific to call the

district court's attention to the asserted error'" (quoting United

States v. Soto-Soto,

, 448 n.1 (1st Cir. 2017))). Our

review, therefore, is de novo. See United States v. Rondeau,

(1st Cir. 2005).

Even so, we need not linger long over Teixeira's claim.

The short answer to it is that a releasee does not have a Sixth

Amendment right to confront adverse witnesses during revocation

proceedings. See Franklin,

. Instead, a more

limited confrontation right applies during revocation proceedings

through the Federal Rules of Criminal Procedure. See Fed. R. Crim.

- 15 - P. 32.1(b)(2)(C); see also Rodriguez,

. Teixeira

invites us to reconsider this legal framework in light of the

Supreme Court's decision in Crawford v. Washington,

(2004). We decline this invitation. Given the special nature of

revocation proceedings, see, e.g., Rondeau,

, there

is no reason to think that a long line of precedents developed

over time should be discarded now. No other court has extended

Crawford to revocation proceedings, see, e.g., Rondeau,

, and we see no principled basis for us to blaze a new

trail.

Teixeira also hints at a Fifth Amendment claim for denial

of due process. See Morrissey v. Brewer,

(1972).

This claim, though mentioned, is undeveloped and unaccompanied by

pertinent authority. It is the "settled appellate rule that issues

adverted to in a perfunctory manner, unaccompanied by some effort

at developed argumentation, are deemed waived." United States v.

Zannino,

(1st Cir. 1990). So it is here.

B

This leaves Teixeira's claim under Federal Rule of

Criminal Procedure 32.1(b)(2)(C). In revocation proceedings,

releasees have a limited right of confrontation, see Rodriguez,

, under which a releasee does not have a right to

question a witness against him if "the court determines that the

interest of justice does not require the witness to appear," Fed.

- 16 - R. Crim. P. 32.1(b)(2)(C); see United States v. Fontanez,

(1st Cir. 2017). To determine whether the interests of

justice require a particular witness to appear, the court must

"balance 'the releasee's right to confront witnesses with the

government's good cause for denying confrontation.'" United

States v. Marino,

(1st Cir. 2016) (quoting Rondeau,

). In this process, the court should "weigh both

the apparent reliability of the hearsay evidence and the

government's proffered reason for not producing the declarant."

Rodriguez,

(quoting Fontanez,

).

Teixeira contends that the admission of the affidavit

transgressed the strictures of Rule 32.1. Because this contention

was made below, our review ordinarily would be for abuse of

discretion. See Rondeau,

. Under that multi-faceted

standard, "we examine the district court's legal conclusions de

novo, its findings of fact for clear error, and its judgment calls

with considerable deference." Franklin,

.

But here, there is a rub. The record makes manifest

that the district court did not explicitly undertake the balancing

that Rule 32.1(b)(2)(C) contemplates with regard to the statements

within Briody's affidavit. Teixeira maintains that the court's

failure explicitly to perform this balancing is reversible error

in itself. The government responds that the district court was

not required to subject the text messages to balancing because

- 17 - they are not hearsay and that the court's failure to undertake an

explicit balancing with respect to K.M.'s statements was in any

event harmless error. We address these two types of evidence

separately.

1

We first address the text messages between Teixeira and

the alleged co-conspirator. The government argues convincingly

that these text messages fall within either or both of two hearsay

exclusions: statements of a party opponent and/or statements not

offered for the truth of the matter asserted. See Fed. R. Evid.

801(d)(2)(A), (c)(2).

This court has not yet determined whether a third-party

statement that falls under a hearsay exclusion must be subjected

to Rule 32.1 balancing. But common sense instructs — and the few

cases to have considered the issue confirm — that a practice

crafted to evaluate the admissibility of hearsay evidence should

not be applied to evidence that is not hearsay. See, e.g., United

States v. Falls,

(7th Cir. 2020); cf. United

States v. Walter,

(1st Cir. 2006) (holding that

Confrontation Clause is not implicated in circumstances involving

non-hearsay evidence). We therefore hold that a third-party

statement that falls within a hearsay exclusion need not be

- 18 - subjected to Rule 32.1 balancing prior to its admission in a

revocation hearing.5

In the case at hand, the text messages from Teixeira are

not subject to balancing because they are statements of a party

opponent. See Fed. R. Evid. 801(d)(2)(A); see also Walter,

. The text messages of the alleged co-conspirator are

also exempt from balancing under Rule 32.1: those messages were

not offered for their truth but, rather, to provide context for

Teixeira's messages. As such, they are not hearsay evidence. See

United States v. Pena,

(1st Cir. 2022); see also

Fed. R. Evid. 801(c)(2).

That ends this aspect of the matter. We conclude that

the district court did not abuse its discretion by failing to

conduct an explicit Rule 32.1 balancing with respect to the text

messages.

5 We note that there is disagreement among the circuits as to whether a finding that a proffered statement falls within a hearsay exception — as opposed to an exclusion — renders Rule 32.1 balancing unnecessary. Compare Valdivia v. Schwarzenegger,

(9th Cir. 2010) (holding that Rule 32.1 balancing is required if statement falls within established hearsay exception), with United States v. Aspinall,

(2d Cir. 2004) (holding that Rule 32.1 balancing is "inapplicable" if statement falls within established hearsay exception), abrogated on other grounds by United States v. Booker,

(2005). We have not yet spoken to the issue, and we have no occasion to do so today.

- 19 - 2

We turn next to K.M.'s statements (included within the

affidavit), which the parties seem to agree were subject to Rule

32.1 balancing. To begin, we hold that the district court's

failure to make an explicit finding as to the balancing required

by Rule 32.1 is not per se reversible error. See United States v.

Aspinall,

(2d Cir. 2004), abrogated on other

grounds by United States v. Booker,

(2005); see also

Franklin,

. When — as in this case — the district

court fails to make an explicit finding with respect to Rule 32.1

balancing and admits the third-party statements anyway, we first

ask whether the record may fairly be read to show that the court

implicitly performed such a balancing. See Franklin,

. If the answer to that first question is in the affirmative,

we then review the decision to admit the statements under the

customary abuse-of-discretion standard. See Marino,

. But if the answer is in the negative, we must find error and

proceed to conduct a harmless-error analysis. See United States

v. Cintrón-Ortiz,

, 125 (1st Cir. 2022).

In this instance, it is not immediately apparent whether

the court below undertook an implicit Rule 32.1 balancing with

respect to K.M.'s statements. Here, however, we can leave that

question unresolved and assume, favorably to Teixeira, that the

court did not implicitly perform such a balancing. Even so — as

- 20 - we shall explain — its error was harmless. We thus turn directly

to that inquiry — an inquiry that requires us to "weigh both the

apparent reliability of the hearsay evidence and the government's

proffered reason for not producing the declarant." Rodriguez,

(quoting Fontanez,

).

To start, K.M.'s statements are characterized by

compelling indicia of reliability. Importantly, the statements

were given in the context of an interview with a federal agent and

implicated K.M. in illegal arms trafficking. The fact that the

statements were against K.M.'s interest is strongly suggestive of

their reliability. See United States v. Mosley,

(7th Cir. 2014). What is more, K.M.'s account is consistent with

the text messages about plans for obtaining firearms in Ohio for

resale in Massachusetts and the Cash App charges. Consistency of

the challenged statements with other evidence supports a finding

of reliability. See Fontanez,

; see also Rondeau,

.

Teixeira struggles to throw shade on the reliability of

K.M.'s statements. He claims, in a conclusory fashion, that search

warrant affidavits are "prone to error" and, thus, inherently

unreliable. This generalization, though, is of dubious force.

Shaming search warrant affidavits on a categorical basis is no

more persuasive than arguing, say, that all police officers are

liars or that all criminal defendants are inherently incredible

- 21 - witnesses. Each search warrant affidavit is distinctive and —

like any other affidavit — must be judged on its own merits.

Next, Teixeira points out that the Ohio investigation

never resulted in charges against him. We agree, generally, that

reliance on allegations of uncharged conduct cannot take the

government very far. Here, however, the government did not rely

on the mere fact of the investigation to imply that Teixeira was

guilty of arms trafficking. Rather, the government relied on the

communications described in the affidavit to show that Teixeira

was communicating with others about buying firearms, making it

more likely that the items depicted in the videos and photographs

were real guns. Seen in this light, those communications were

relevant, as circumstantial evidence, to the gravamen of the

revocation proceedings even though the investigation did not

result in substantive-offense charges against Teixeira. Whether

or not Teixeira's activities were unlawful was beside the point.

Of course, we also must examine the other component of

the balancing test: the government's reason or reasons for not

producing the declarant. See Rodriguez,

. Teixeira

notes that the government never expressly articulated any reason

for not producing K.M. But this is thin gruel: the reasons are

apparent.

First and foremost, the unchallenged evidence shows that

K.M. resides in Ohio. The logistical problems in hauling an Ohio

- 22 - resident to Massachusetts for a revocation hearing require no

elaboration. As we have said, "'the difficulty and expense of

procuring witnesses from perhaps thousands of miles away' is a

paradigmatic example of the type of situation that might call for

the admission of hearsay evidence at a revocation proceeding."

Marino,

(quoting Gagnon v. Scarpelli,

,

782 n.5 (1973)); see also Fontanez,

. Here,

moreover, there is a second equally obvious reason: the government

may well be reluctant to call as a witness in a revocation

proceeding a gun dealer who has been cooperating with it in an

arms-trafficking investigation.

The bottom line is that the evidence in the affidavit

was reliable and there were good reasons why the government did

not call K.M. to testify in person. Given these conclusions, we

hold — with a high degree of confidence — that the failure

explicitly to conduct the required Rule 32.1 balancing was, at

worst, harmless error. See United States v. Sasso,

,

29 (1st Cir. 2012) (explaining that — for trial errors that are

not of constitutional magnitude — the harmless-error standard

"allows a conviction to stand, error notwithstanding, as long as

it can be said 'with fair assurance, after pondering all that

happened without stripping the erroneous action from the whole,

that the judgment was not substantially swayed by the error'"

(quoting Kotteakos v. United States,

(1946))).

- 23 - C

We add a coda. Although we have upheld the revocation

order in this case despite the district court's failure to make

the explicit balancing determination that Rule 32.1(b)(2)(C)

contemplates, we do not gainsay the importance of such explicit

determinations. We urge the district courts — when presiding over

revocation proceedings — to take care to make explicit balancing

determinations.

V

Teixeira's final claim proceeds along two strands: that

the district court's factual findings were clearly erroneous and

that the government has not carried its burden of demonstrating

the firearms violation by a preponderance of the evidence. These

strands are inextricably intertwined, and we treat them as a single

claim of error.

We review a district court's decision to revoke

supervised release for abuse of discretion and the "underlying

finding of a violation of supervised release for clear error."

United States v. Wright,

(1st Cir. 2016). A

determination that a district court committed clear error requires

that, "on the whole of the record, we form a strong, unyielding

belief that a mistake has been made." Franklin,

(quoting United States v. Padilla-Galarza,

(1st

Cir. 2021)). In this review, we are constrained to interpret the

- 24 - evidence in the light most hospitable to the disputed finding and

to recognize that "credibility is largely a matter for the fact-

finder." United States v. Oquendo-Rivera,

(1st

Cir. 2009).

We discern no clear error in the district court's factual

findings. The court made pellucid that it was "relying principally

on the agent's opinion." In that testimony, Briody affirmed that

both weapons shown in the videos had characteristics that he

recognized as consistent with those of real firearms. Moreover,

he furnished detailed descriptions comparing the depicted firearms

with real firearms. The decision to credit Briody's testimony was

quintessentially a decision for the factfinder, see

and the

court did not clearly err in crediting Briody's testimony.

Teixeira suggests that the district court "misstated"

Briody's testimony with respect to whether the guns were real.

But any equivocation on Briody's part was (as has been said of

beauty) more in the eye of the beholder: although Briody admitted

that discerning whether a firearm is real or fake from a photograph

or video is "difficult," he stated that he saw, in the music studio

video, an item that had "the characteristics of what I recognize

to be a firearm." So, too, Briody vouchsafed that, in the vehicle

video, "the item had characteristics consistent with what would be

a firearm."

- 25 - We add, moreover, that Briody's testimony included not

just his assessment of the video evidence but also his description

of his interviews with Martin and his attempts to obtain Martin's

prop guns. Briody testified that Martin was unable to produce any

prop guns that resembled the guns featured in the videos. Briody's

testimony in this regard was unequivocal: none of the three prop

guns that Martin provided — two examined on the spot by Briody and

one depicted in a photograph introduced at the hearing — were the

same as the guns shown in the videos.

To conclude that a supervised release violation has

occurred, "the district court need not point to direct evidence

but, rather, may rely on reasonable inferences drawn from the

evidence." Rodriguez,

. "The inferences so drawn

'need not be compelled but, rather, need only be plausible.'"

(quoting United States v. Nuñez,

(1st Cir.

2017)). Nor is it clear error to discredit an alternative

explanation which is lacking in evidentiary support or otherwise

unpersuasive. See United States v. Brewster,

(1st

Cir. 1993).

The upshot is that the government supplied evidence from

which reasonable inferences could be drawn that one or more of the

weapons depicted in the videos was real. We cannot say that the

court clearly erred either in crediting that evidence or in

- 26 - crediting an expert who testified that he believed the firearms in

the videos were real guns based on a detailed comparison.

Teixeira resists this conclusion. He argues that the

court erred in "overlooking other factors reinforcing the lack of

basis to determine whether the purported firearm was a real

firearm." Chief among these factors, Teixeira says, is the

government's failure to produce or inspect the firearms depicted

in the videos.

This argument will not wash. The court did not clearly

err in relying on video evidence and expert testimony to reach its

conclusion despite the absence of the actual guns. See Franklin,

(holding that government's failure to introduce

specific type of substantiating evidence "does not diminish the

force of the corroboration that is present"); see also United

States v. Viloria-Sepulveda,

(1st Cir. 2019)

(finding no error in district court's reliance on photographs of

firearms to support upwardly variant sentence). And to cinch the

matter, we have no reason to believe that the government's failure

to produce the particular firearms shown in the videos was

overlooked by the district court. The fact that the court did not

address that factor specifically in its ruling does not mean that

the court ignored it; it instead may mean that the court considered

it and concluded that it was unpersuasive. A district court need

not articulate its conclusions as to every jot and tittle of

- 27 - evidence in making a determination as to a supervised release

violation, and the fact that the court did not do so here cannot

compel a finding of clear error.

VI

We need go no further. For the reasons elucidated above,

the judgment of the district court is

Affirmed.

- 28 -