United States Court of Appeals For the First Circuit

No. 20-1708

UNITED STATES OF AMERICA,

Appellee,

v.

ERIC SANTIAGO,

Defendant, Appellant.

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

[Hon. F. Dennis Saylor, IV, U.S. District Judge]

Before

Barron, Chief Judge, Selya and Lipez, Circuit Judges.

Jean C. LaRocque, with whom Shea and LaRocque, LLP was on brief, for appellant. Karen L. Eisenstadt, Assistant United States Attorney, with whom Rachael S. Rollins, United States Attorney, was on brief, for appellee.

March 20, 2023 BARRON, Chief Judge. Eric Santiago appeals his 2020

conviction in the United States District Court for the District of

Massachusetts for violating

by "distribut[ing]" or

"possess[ing] with intent to . . . distribute" fentanyl. He claims

that his conviction must be reversed because the evidence presented

at trial did not suffice to support it and that, in the

alternative, it must be vacated due to various trial errors. We

affirm.

I.

The operative indictment charges Santiago with a single

count of distributing and possessing with intent to distribute 400

grams or more of fentanyl in violation of

(a)(1)

and (b)(1)(A)(vi). The charge arises from Santiago's alleged role

in dropping off a package of fentanyl at the home of Rafael Reyes

-- a cooperating witness working with federal agents who were

investigating drug-distribution networks in Boston -- and later

accepting payment from Reyes for that package. The jury found

Santiago guilty following a four-day trial, and separately found

that Santiago had been previously convicted of an offense that

qualified as a "serious drug felony" under

(b)(1)(A).

Reyes was the key government witness at the trial. He

testified that on June 16, 2018, Santiago visited Reyes's home

when Reyes was not there, then when Reyes returned, told Reyes

- 2 - that he had some fentanyl for him, walked with Reyes into Reyes's

garage, and showed Reyes a package of fentanyl placed near Reyes's

car. Reyes then testified that Santiago told him to take the

package inside and unwrap it, which Reyes did (saving some wrapping

for federal agents to check for fingerprints). Reyes also

testified that, while he did not pay Santiago for the fentanyl

that day, the two had discussed a price of $70 per gram for the

approximately 500 grams, or $35,000.

Reyes, as well as federal agents working with him on the

investigation, testified that after Santiago left, the agents

instructed Reyes to deliver the package and wrapping to a police

officer working on the investigation. A fingerprint specialist

then examined the package and found one fingerprint, but it did

not match either Santiago or Reyes, and remained unidentified.

The agents also instructed Reyes to text Santiago to negotiate

payment for the fentanyl. For the following two weeks, Reyes and

Santiago exchanged numerous text messages referring to a

"motorbike," which Reyes testified was a coded conversation about

the price of the fentanyl and when Reyes had to pay.

Reyes then testified that on June 21, federal agents

instructed him to drive to Santiago's home in Lynn, Massachusetts,

and make a controlled payment of $5,000, which he did. He also

testified that agents instructed him to negotiate the purchase of

more fentanyl from Santiago, after which Reyes and Santiago

- 3 - exchanged text messages about a "scooter," which Reyes testified

referred to fentanyl. One week after that, on June 28, Reyes

texted Santiago asking to meet in New Bedford, Massachusetts, to

deliver the "titles," which Reyes testified referred to the

remaining $30,000 due for the fentanyl left at his home. When

Santiago arrived, Reyes handed him a bag of money, after which

Santiago drove away. A short time later, agents stopped Santiago's

vehicle and arrested him.

Santiago was convicted and sentenced to 180 months of

imprisonment and ten years of supervised release. He then filed

this timely appeal.

II.

We begin with Santiago's contention that his conviction

must be reversed because it is not supported by sufficient

evidence. Our review is de novo, though we must consider the

evidence in the light most favorable to the verdict. See United

States v. Charriez-Rolón,

(1st Cir. 2019).

Before diving into the analysis, it helps to clear some

ground about what the government was required to prove in light of

the underlying charge as set forth in the indictment. That charge

was set forth in a single count for "distribut[ing]" fentanyl in

violation of

or "possess[ing] with intent to

distribute" fentanyl in violation of that same statute.

- 4 - As Santiago asserts in connection with a challenge he

brings to the District Court's jury instructions, "distribution"

and "possession with intent to distribute" under § 841 can be two

distinct crimes, as the offense of "distribution" does not require

the element of possession, United States v. Cortés-Cabán,

(1st Cir. 2012); see also United States v. Tejada,

(1st Cir. 1989), while the offense of "possession with

intent to distribute" does not require the element of distribution,

Cortés-Cabán,

. And because "[i]t is possible --

albeit unusual -- to be guilty of distribution of a drug without

also possessing it with intent to distribute," United States v.

Sepulveda,

(1st Cir. 1996), the offense of

"possession with intent to distribute" is not a lesser-included

offense of "distribution," see Tejada, 886 F.2d at 489–90

(discussing test established in Blockburger v. United States,

(1932), for determining whether two crimes may be

punished as independent offenses).

Thus, we must reject Santiago's sufficiency challenge so

long as the evidence suffices to permit a rational jury to find

beyond a reasonable doubt that Santiago committed the offense of

either distributing fentanyl or possessing fentanyl with the

intent to distribute it. See Jackson v. Virginia,

,

318–19 (1979). In contending that the evidence does not suffice

to permit us to affirm his conviction for either offense, Santiago

- 5 - emphasizes the lack of eye-witness testimony that he personally

handled the fentanyl in question, the lack of a single mention of

"fentanyl" or "drugs" in any of the phone calls or text messages

that were introduced at trial, the fact that the fingerprint

recovered from the package that contained the fentanyl was not

his, and the implausibility of the notion that "Santiago suddenly

surprised [Reyes] at his . . . home to 'front' him half a kilo of

fentanyl that Reyes was not expecting without any down payment."

Thus, he contends that there is no evidence in the record that

could suffice to tie him to the fentanyl in question in a way that

would permit his conviction based on either distributing that drug

or possessing it with the intent to distribute it. See United

States v. Valerio,

(1st Cir. 1995) ("[W]e are loath

to stack inference upon inference in order to uphold the jury's

verdict.").

"[I]t is well-settled," however, "that '[t]estimony from

even just one witness can support a conviction.'" United States

v. Maldonado-Peña,

(1st Cir. 2021) (second alteration

in original) (quoting United States v. Negrón-Sostre,

(1st Cir 2015)), cert. denied sub nom. Rivera-Alejandro

v. United States,

(2021), Rivera-George v. United

States,

(2022), and Rivera-Alejandro v. United

States,

(2022). And, here, the government called

to the stand Reyes, who testified that Santiago visited Reyes's

- 6 - home, showed Reyes the package of fentanyl in the garage, stated

"I put it right over there," (emphasis added), and invited Reyes

to take possession of it.

Santiago does contend that Reyes was not credible. In

support of this contention, he notes that the record shows that at

the time of events in question Reyes had agreed to become a witness

for the government in return for his release from prison and a

downward departure from a ten-year sentence he otherwise expected

to face.

But, "[o]ur framework for reviewing this kind of

challenge means we give the government the benefit of the doubt

and resolve any questions of witness credibility against the

defendant." Maldonado-Peña,

. Moreover, the

government introduced evidence to corroborate Reyes's testimony in

the form of the package that contained the fentanyl at issue, the

text messages between Reyes and Santiago, and the two controlled

payments that Santiago received from Reyes. See

at 54–55

(holding that evidence was sufficient not only because one

witness's testimony would alone be sufficient, but also because

additional evidence corroborated the witness's testimony).

Thus, we conclude that Reyes's testimony provides a

sufficient basis for a rational juror to find Santiago guilty of

violating

. That is so because the evidence

suffices to show that Santiago possessed fentanyl with the intent

- 7 - to distribute it (based at the least on Reyes's testimony that

Santiago had stated that he had placed the package of the fentanyl

in Reyes's garage) and because it also suffices to show that

Santiago was engaged in distributing fentanyl (given Reyes's

testimony regarding the series of events concerning the placing of

that package in the garage).

III.

We turn, then, to Santiago's contention, in the

alternative, that his conviction must be vacated. Here, he relies

on various claimed trial errors. As we will explain, none has

merit.

A.

Santiago first contends that the District Court erred by

failing to instruct the jury that to render a guilty verdict it

must be unanimous as to whether his offense was for distributing

the fentanyl or possessing it with the intent to distribute it.

This contention starts from the premise -- which is entirely

correct -- that when an indictment charges two or more distinct

offenses in a single count, it is duplicitous, and thus raises the

prospect of a jury finding the defendant guilty on that count

without being unanimous as to which of the two crimes set forth in

that count the defendant committed. See United States v. Newell,

(1st Cir. 2011). This contention also rests on the

premise -- itself entirely correct -- that a district court may

- 8 - ensure this prospect does not come to pass by instructing the jury

that, to convict the defendant based on the count set forth in the

indictment, the jury must be unanimous in finding him guilty beyond

a reasonable doubt of at least one of the offenses set forth in

that charge. See

In light of these premises, there is at first blush some

force to Santiago's challenge. The single count of which Santiago

was convicted did combine two seemingly distinct offenses -- the

offense of "distribution" and the offense of "possession with the

intent to distribute" -- and so was duplicitous, thereby

threatening to undermine Santiago's right to a unanimous jury.

See

Moreover, the District Court chose not to give the

curative unanimity instruction to the jury, even though Santiago

requested that instruction.

Of course, the need for a curative instruction in the

face of a duplicitous indictment only arises if at the time the

instructions are provided there still are two possible offenses in

play, such that a verdict of guilty by the jury on the charged

count would not necessarily reflect a unanimous verdict of guilt

as to either offense. And, although possession with intent to

distribute fentanyl is in principle a distinct offense from the

crime of distributing fentanyl, these distinct offenses "merge"

into a single offense when "the distribution itself is the sole

evidence of possession, or where possession is shown to exist only

- 9 - at the moment of distribution." Sepulveda,

(quoting United States v. Rodriguez-Cardona,

(1st Cir. 1991)). Thus, the critical question here is whether, at

the time the District Court declined to give the instruction on

unanimity, those theoretically distinct offenses had merged into

one based on what the evidence had shown.

The government contends that the answer to that question

here is in the affirmative, because in this case the sole evidence

that could suffice to support the conviction for "distribution"

-- Reyes's testimony -- also ensured that the offense of

"distribution" merged with the offense of "possession with intent

to distribute." And that is so, the government argues, because

Reyes's testimony was such that both "the distribution itself [was]

the sole evidence of possession" and the "possession [was] shown

to exist only at the moment of distribution."

Santiago disputes this merger-based ground for rejecting

his challenge to the District Court's failure to give the requested

unanimity instruction. He points to the fact that the fingerprint

recovered from the package did not match his own and that no

witnesses testified to seeing him in possession of the fentanyl.

He then contends, based on that feature of the record, that some

jurors could have believed that an unknown "third party" physically

placed the drugs in Reyes's garage. On that reading, Santiago

argues that some jurors could have believed that he was involved

- 10 - in distributing the fentanyl at issue only by showing Reyes where

the package was and inviting him to take possession of it without

ever having handled it, even while other jurors also found based

on Reyes's testimony that Santiago himself had dropped off that

package. Santiago contends in this regard:

If six [jurors] thought Santiago had not possessed the drugs (a likely scenario given the lack of fingerprints, no actual witness seeing possession[,] and the unbelievability of any drug dealer 'fronting' someone half a kilo of fentanyl by haphazardly dropping it off at a garage), with six thinking he had distributed drugs without possessing them, through a third party for example, it would not be a unanimous verdict . . . ."

(Emphases added).

In pressing this argument, Santiago lays out a scenario

in which the jurors would have found him guilty of distribution

through different findings of brute facts -- with some finding him

guilty of that offense while having possessed the fentanyl and

others finding him guilty of that offense without finding that at

any point he possessed the fentanyl.1 However, Santiago has failed

1 The District Court instructed the jury that "possession" includes both "actual possession" and "constructive possession," meaning "when a person who is not in physical control of the item nonetheless has both the power and the intent to exercise dominion and control over it." See also United States v. García- Carrasquillo,

(1st Cir. 2007) ("Constructive possession exists when a person knowingly has the power and intention at a given time to exercise dominion and control over an object either directly or through others." (emphasis added) (quoting United States v. McLean,

(1st Cir. 2005))).

- 11 - to lay out a theory in which, based on this record, any juror could

have found him guilty of "possession with intent to distribute"

but not "distribution." And we understand why, for we similarly

cannot conceive of any reading of the record that would permit a

rational jury to find him guilty of the charged count without

unanimously finding him guilty of at least the offense of

"distribution." Accordingly, this challenge fails because, by

virtue of these two crimes having merged into a single crime in

this case, the District Court had no cause to give a specific

unanimity instruction, and therefore did not err in deciding not

to give one.

B.

Santiago next contends that the District Court erred by

denying his motion for a mistrial based on testimony that Agent

Carl Rideout gave at trial while being cross-examined by Santiago's

counsel. The relevant exchange is as follows:

Q: [Y]ou testified before in the grand jury, correct? Yes?

A: Yes, yes.

Q: And you were asked about the other [drug] investigations that [Reyes] was participating in, correct?

A: Yes.

Q: All right. And [the prosecuting attorney] asked you, how were those going, and you said "good and bad"?

- 12 - A: Correct.

Q: Okay, what was bad about the investigations?

A: So after the arrest of Mr. Santiago, we were looking at a bigger organization. The New Bedford and Boston organization had -- they were essentially the source to Mr. Reyes before he was arrested. . . . After the arrest of Mr. Santiago, all those platforms dropped. We think they dropped their phones and they stopped dealing with Mr. Reyes, so we didn't know the connection between Mr. Santiago and the Boston/New Bedford-based people.

Q: Let's be honest. You have no connection whatsoever to Mr. Santiago and those other individuals, correct?

A. False.

(Emphases added).

In the motion for a mistrial, Santiago contended that a

portion of Rideout's testimony during this exchange implied a

connection between Santiago and a broader drug organization even

though the government was not planning on introducing any evidence

to that effect. The motion contended that the trial had been

irrevocably tainted, and that due to this unfair prejudice, a

mistrial was required under the Due Process Clause of the Fifth

Amendment to the United States Constitution.

We review denials of a motion for mistrial for manifest

abuse of discretion. See United States v. Chisholm,

(1st Cir. 2019). In doing so, "we consider the totality of

the circumstances to determine whether the defendant has

demonstrated . . . clear prejudice," United States v. Trinidad-

- 13 - Acosta,

(1st Cir. 2014) (quoting United States

v. Dunbar,

(1st Cir. 2009)), while mindful that

"the trial court has a superior point of vantage, and that it is

only rarely -- and in extremely compelling circumstances -- that

an appellate panel, informed by a cold record, will venture to

reverse a trial judge's on-the-spot decision,"

(quoting United

States v. Freeman,

(1st Cir. 2000)).

To carry out this review, we assess four factors: "the

context of the improper remark, whether it was deliberate or

accidental, the likely effect of the curative instruction, and the

strength of the evidence against the appellant[]." United States

v. Cresta,

, 549–50 (1st Cir. 1987).

The passages quoted above from Rideout's testimony, as

well as a review of the record of the four-day trial, establish

that the assertedly improper "comment was isolated."

;

see also United States v. Johnston,

(1st Cir.

1986) ("The quoted remarks were the only such comments in the

course of an eight-day trial . . . . The limited extent of the

comments 'makes it less likely that the minds of the jurors would

be so influenced by such incidental statements . . . that they

would not appraise the evidence objectively and dispassionately.'"

(quoting United States v. Socony-Vacuum Oil Co.,

(1939))). Thus, the context of the comment, by showing the comment

to be a "single, isolated statement" in a four-day trial, points

- 14 - against a conclusion that the District Court manifestly erred here.

See Trinidad-Acosta,

(holding same in five-

day trial); see also United States v. Diaz,

(1st

Cir. 2007) ("[A]fter [the improper remark], that fact was never

mentioned again, either in the balance of [the witness's] lengthy

testimony or in the prosecutor's closing arguments. The isolated

nature of the offending remark further cuts against any need for

a mistrial.").

Nor was the comment from Rideout that undergirds this

challenge to the conviction one that was "deliberately elicit[ed]"

by the prosecution "in bad faith." Cresta,

.

Rather, it was elicited by Santiago's defense counsel through a

question that he asked during his cross-examination of Rideout.

See Trinidad-Acosta, 773 F.3d at 307–08 ("It is well-established

that when, as here, defense counsel elicits a response from a

witness, the defense cannot then 'complain of the alleged error.'"

(quoting Cresta,

)).

Santiago counters that on a pre-trial phone call, the

prosecution told defense counsel that there was no connection

between the first investigation and the case on trial. But, even

setting aside that the prosecutor disputed the contents of the

phone call and argued that none of his representations would

"reasonably have assured [defense counsel] that the question he

asked of . . . Rideout would have a negative answer," we agree

- 15 - with the government that any such conversation was far from a

guarantee to defense counsel that Rideout would answer the question

in a particular way if Rideout were asked about it. Thus, the

"deliberate or accidental" factor also weighs against Santiago's

challenge, because it was defense counsel who chose to seek

testimony on a matter that was not otherwise part of the

prosecution's case.

The factor concerning curative instructions weighs

against this challenge as well. The District Court denied the

motion but instructed the jury to ignore that portion of Rideout's

testimony both immediately after it was elicited and again at the

end of trial. The District Court also struck that testimony from

the record. The District Court thus twice gave the sort of

"strong, explicit cautionary instruction to completely disregard

the statement" that we have previously found "sufficient to

counteract prejudice that may have flowed from [a witness's

improper] remark." Cresta,

; see also Johnston,

("This explicit instruction addressing the

inadmissible evidence directly was sufficient to counteract any

prejudice that may have flowed from [the witness]'s testimony.").

And the District Court did so "promptly," Freeman,

(quoting United States v. Torres,

(1st Cir. 1998)),

such that the first curative instruction was the next thing the

jurors heard after the improper remark and resulting sidebar.

- 16 - Finally, the evidence against Santiago was strong, see

Diaz,

("[S]trong independent evidence of guilt

tends to lessen the effect of an improper comment by a witness,

making a mistrial unnecessary."), while the witness who made the

improper remark was not, like Reyes, a key witness in the case.

Thus, the question of prejudice did not in this case turn on

whether the jury could credit that witness's testimony without

being unduly swayed by the same witness's improper remark. See

Cresta,

(concluding that "[t]he evidence against

the two defendants was very strong if the jury believed [the

lengthy testimony of the witness who made the improper remark]").

For these reasons, we conclude that the District Court

did not manifestly abuse its discretion when it denied Santiago's

motion for a mistrial.

C.

Santiago next argues that the District Court erred by

permitting Reyes to testify as a lay witness under Federal Rule of

Evidence 701. That Rule provides that opinion testimony by a lay

witness is admissible if it is: "(a) rationally based on the

witness's perception; (b) helpful to clearly understanding the

witness's testimony or to determining a fact in issue; and (c) not

- 17 - based on scientific, technical, or other specialized knowledge

. . . ." Fed. R. Evid. 701.

Santiago's challenge focuses on the second prong. He

argues that the meaning of the text messages between himself and

Reyes "was clear" and that Reyes's testimony "was of no help in

understanding the dialogue," therefore violating the requirement

that the testimony be "helpful." Santiago points more specifically

to Reyes's testimony that a message mentioning a "motorbike" was

in fact a coded conversation about drugs.

We review a district court's admission of evidence under

Federal Rule of Evidence 701 for manifest abuse of discretion.

United States v. Valdivia,

(1st Cir. 2012).

Applying that standard here, we discern no error.

As Santiago concedes, "it is settled beyond hope of

contradiction that a witness with personal knowledge of slang or

jargon commonly employed in the drug trade may, consistent with

Rule 701, be allowed to interpret ambiguous language used

conversationally by drug traffickers." United States v. Valbrun,

(1st Cir. 2017). It is also well-established

that a participant in a conversation may give lay opinion testimony

interpreting ambiguous statements in the conversation in which

they participated. See United States v. George,

(1st Cir. 2014).

- 18 - Santiago argues here that none of the messages that he

sent to Reyes contained any ambiguities and thus that it was

improper for Reyes to be permitted to testify about the meaning of

the messages that he received from Santiago. For support, Santiago

cites to an out-of-circuit case in which the Fourth Circuit

determined that the jury did not need help to ascertain that "a

hundred forty five point" meant "145 grams of heroin," because

"simply pointing to the seizure of 145 grams of heroin, and then

the repeated mention of '145' in this [context] clearly would have

been enough for any juror to make the connection." United States

v. Garcia,

(4th Cir. 2014). Santiago contends

that the statements contained in the text messages that he sent to

Reyes were similarly clear in conveying their meaning, such that

it was not proper to permit Reyes to explain what they meant to

the jury.

As an initial matter, we note that Garcia concerned the

admissibility of expert witness testimony under Federal Rule of

Evidence 702, and held that the agent's testimony on the meaning

of "a hundred forty five point" was improper because it

"substituted information gleaned from her participation in the

investigation . . . for ostensible expertise," regarding calls in

which the agent otherwise did not participate.

(emphasis added). Thus, Garcia does not address the Rule 701 issue

before us here.

- 19 - But, that point of precedent aside, there is a more

fundamental problem with Santiago's challenge. Santiago argues

that Reyes's testimony "should have been limited to explaining the

typical meaning of particular words . . . rather than interpreting

the meaning and import of the conversations." But, we have

previously rejected exactly such an argument when an exchange

contains a "host of ambiguities." Valbrun,

. We

explained in doing so that there is "no reason to require [a

cooperating witness] to parse his interpretative testimony word by

word as if he were a foreign language dictionary rather than an

interpreter of a conversation," precisely because "the witness

'can provide needed context to the events that were transpiring.'"

United States v. Obiora,

(1st Cir. 2018) (quoting

Valbrun,

).

It is fatal to this challenge, therefore, that a host of

the statements in the messages from Santiago about which Reyes

testified were ambiguous. Some of the statements were ambiguous

in context because they arguably were using code, such as the

statements referring to the sale of a "motorbike" and a "scooter."

Valbrun,

("[A] knowledgeable coconspirator may be

permitted to offer lay opinion testimony in a drug-trafficking

prosecution 'as to the meanings of "code words" used by fellow

conspirators in . . . conversations' in which he participated."

(quoting United States v. Lizardo,

(1st Cir.

- 20 - 2006))). Other statements were ambiguous because they used the

word "it" in contexts in which the antecedent was hardly self-

evident. See Lizardo, 445 F.3d at 83–84 (testimony helpful to

interpret references to "this place" and "those places" in

statements that otherwise "did not employ code words").

Furthermore, lay opinion testimony regarding an

allegedly coded conversation is particularly appropriate when "the

government la[ys] out an objective basis for the [witness's]

understanding that [the defendant] knew they were speaking in coded

terms and his impression of what [the defendant] actually meant."

United States v. Prange,

(1st Cir. 2014). Here,

the government provided such an "objective basis" not only through

Reyes's own testimony that the conversation was coded and that no

"motorbike" in fact existed, but also through the fact that the

messages were at times incoherent if read to refer to a

"motorbike," as well as the implausibility of believing that

Santiago thought the conversation to be about a real "motorbike"

when Reyes did not, given the vast number of text messages they

exchanged and Santiago's acceptance of two large cash payments as

a consequence of their negotiations in those messages.

We therefore reject Santiago's argument that the

District Court erred by permitting Reyes to testify as to the

meaning of the text messages that Santiago sent him.

- 21 - D.

Santiago's remaining contention is that the District

Court erred by allowing expert and non-expert testimony about the

weight of the drugs that was not properly disclosed to the defense

under Federal Rule of Criminal Procedure 16. This contention,

too, is without merit.

1.

Because Santiago was charged under

(b)(1)(A)(vi), which specifies a minimum drug weight of "400

grams," the weight of the fentanyl was a material element of the

offense. Before trial, the prosecution disclosed to the defense

in discovery that a chemist had determined that the "net weight"

of the fentanyl without the packaging was "499 grams." However,

this chemist had retired by the time of trial, and the chemist who

would be testifying -- Vadim Astrakhan -- had only measured the

"gross weight" of the drugs with the packaging (which he had

determined to be 613.2 grams). At trial, the prosecution therefore

asked Astrakhan to "estimate based on his training and experience

. . . the weight of the packaging" and the net weight of the

fentanyl.

Astrakhan testified, over defense counsel's objection,

that the weight of the packaging was "about 100 grams," and that

the net weight of the fentanyl was "[a]pproximately half a

- 22 - kilogram." He later stated, however, that he was "not trained to

estimate the weights."

The following morning, the government informed the

District Court that Task Force Officer Kyle Montagano, who was on

the government's witness list, had weighed the fentanyl the

previous evening, and had determined that its net weight was 480

grams. The government also informed the District Court that it

had disclosed that new evidence to the defense. Thereafter, the

government called Montagano to testify, over defense counsel's

objection, that the net weight of the drugs was 480 grams.

2.

Santiago argues that the District Court erred by not

excluding Astrakhan's testimony because the basis for his

expertise in "estimat[ing]" the weight of the packaging was not

disclosed to the defense in violation of the "expert disclosure

provisions" of Federal Rule of Criminal Procedure 16(a)(1)(G).

Santiago further contends that Montagano's testimony should have

been excluded because it was disclosed too late under the same

rule.

We agree with the government that Santiago has waived

his Rule 16 objection to Astrakhan's testimony because he made no

such objection below, see United States v. Mercado,

(1st Cir. 2005), and on appeal has not attempted to satisfy

his plain-error burden, see United States v. Pabon,

,

- 23 - 33 (1st Cir. 2016).2 In any event, we can discern no Rule 16 error

because Astrakhan's testimony that the weight was "approximately

half a kilogram" was fully within the scope of the "499 grams"

figure disclosed to Santiago prior to trial. See United States v.

Lipscomb,

(1st Cir. 2008) ("Given that the defense

had full notice of the actual opinions to which the detectives

intended to testify, we are unpersuaded by the defendant's

criticism [based on Rule 16] of the lack of detail regarding the

bases for those opinions.").

As to Montagano's testimony, regardless of whether the

timing of the government's disclosure of this evidence could be

characterized as a Rule 16 violation, see Fed. R. Crim. P. 16(c)

("A party who discovers additional evidence or material before or

during trial must promptly disclose its existence to the other

party or the court . . . ."), Santiago has not shown how the

allegedly late disclosure was prejudicial, see United States v.

Melucci,

(1st Cir. 1989) ("Without a showing of

prejudice[] due to the late disclosure, the relief requested cannot

2 In his reply brief, Santiago recharacterizes his argument regarding Astrakhan's testimony as the one he made below relying on Federal Rule of Evidence 702: that the District Court failed in its "gatekeeping function" to evaluate whether Astrakhan's experience weighing drugs provided a sufficient basis for him to estimate the weight of the packaging. But, "arguments available at the outset but raised for the first time in a reply brief need not be considered." United States v. Tosi,

(1st Cir. 2018).

- 24 - be granted."). In arguing otherwise, Santiago contends that

defense counsel "had no chance to prepare cross-examination for

Montagano, unfairly hindering his ability to test the testimony."

However, Montagano's estimate of "480 grams" was consistent with,

and in fact lower than, the weight of "499 grams" already disclosed

to Santiago before trial. And Santiago does not explain how, if

given more time, he might have challenged Montagano's testimony.

See United States v. Bresil,

(1st Cir. 2014)

("[The defendant] makes no claim that any expert could have

materially challenged (or, indeed, challenged at all) the

technical claims upon which the testimony of the government's

expert was based.").

We therefore conclude that Santiago is not entitled to

a new trial based on these alleged errors regarding the testimony

about the weight of the fentanyl.

IV.

For the reasons given above, the judgment of the District

Court is affirmed.

- 25 -