United States Court of Appeals
                     For the First Circuit


No. 22-1380

                         UNITED STATES,

                           Appellee,

                               v.

                         JAYNE CARBONE,

                     Defendant, Appellant.


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

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


                             Before

                      Barron, Chief Judge,
              Thompson and Gelpí, Circuit Judges.


     Zainabu Rumala, Assistant Federal Public Defender, for
appellant.
     Mark T. Quinlivan, Assistant United States Attorney, with
whom Joshua S. Levy, Acting United States Attorney, was on brief,
for appellee.


                         August 1, 2024
            THOMPSON, Circuit Judge.        According to the Centers for

Disease Control and Prevention, the scourge of financial elder

abuse is described as "the illegal, unauthorized, or improper use

of an elder's money, benefits, belongings, property or assets for

the benefit of someone other than the older adult."                  CDC, Fast

Facts: Preventing Elder Abuse, https://perma.cc/7F9B-3ZBY (last

visited May 10, 2024).         And that is what today's appeal is all

about.    Jayne Carbone ("Carbone") seeks to undo her conviction

related to her theft of hundreds of thousands of dollars from her

elderly (and now deceased) uncle, Wayne Kerr ("Kerr").               Following

a   five-day    jury   trial   in   October   2021,   a    federal    jury   in

Massachusetts found Carbone guilty on all counts.                On appeal,

Carbone asks us to vacate and remand her case for a new trial

because of the District Court's alleged procedural and evidentiary

blunders.      More specifically, she claims that the District Court

erred by:       (1) denying her counsel's motions to continue the

testimonies of two key government witnesses; and (2) admitting

those witnesses' testimonies at trial over her objections. Finding

her claims meritless, for the reasons we'll discuss, we affirm.

            I. BACKGROUND

            We briefly set forth the relevant facts of the case so

that the reader can understand how Carbone was able to carry out

her theft, and in doing so we note that "our recitation of the

factual   background     is,   of   course,   done    in   the   light    most


                                    - 2 -
complimentary to the jury verdict."                 United States v. Belanger,

 (1st Cir. 2018).

              A. The Victim:      Wayne Kerr

              Beginning in the early 2000s, Carbone became responsible

for    the    primary    care    of   her     uncle.      Like       many     familial

relationships, theirs was complicated.               However, before we examine

the complex family dynamics underlying this case, we'll introduce

Kerr to give some context to the issues at play.

              Born in 1941, Kerr was a longtime resident of Chelsea,

Massachusetts, where he resided in a first-floor apartment unit of

a triple-decker home that he owned, and rented out, on Grove

Street.      Kerr enjoyed a stable professional life, first working as

an    assistant    manager      for   a    local    grocery    store        chain   for

twenty-four years before later managing the Chelsea Community

Center (also known as the Chelsea YMCA or just simply the Chelsea

Y) until his eventual retirement in 2016.                 Upon his retirement,

Kerr's income consisted of social security, pension checks, and

rental    income   from    his   second-      and    third-floor      Grove     Street

apartment units.        Kerr was also a modest man.            He did not gamble,

regularly purchase clothes, invest in the stock market, take

frequent      vacations,   use    recreational        drugs,    or    drink    often.

Instead, he was described as a homebody.                 For reasons that will

soon become clear, it's important to note that like many members

of his generation, Kerr was not a technologically savvy man.                         He


                                          - 3 -
used neither email nor computers, and did not own a cell phone, or

fax machine.     Nor did he utilize credit cards or a checkbook.

Instead, Kerr relied on tried-and-true methods, such as snail mail

and cash, to conduct his affairs.

           Kerr also possessed a peculiar relationship with money.

His   idiosyncrasies    are   probably   best   illustrated   through   his

miserly saving habits that led him to shower at the Chelsea

Community Center and collect his urine in a container, instead of

flushing the toilet, to save money on his water bill.           Kerr also

mistrusted     banks,   leading    him     to   store   large    sums   of

cash - $10,000.00 to $20,000.00 at a time - in his home safe,

suitcase, and various shoeboxes.          Yet, Kerr was also incredibly

generous with his family and friends, often treating them to fine

dinners and cash gifts.       By the time he retired, Kerr had managed

to accrue more than $500,000 consisting of:             $160,265.50 in a

Nationwide Life Insurance annuity account ("Nationwide account");

$330,560.76 in a Citizens Bank account; and a large sum of cash in

his home safe.

           Finally, Kerr also relied on familial assistance to

conduct his personal affairs.      Beginning with his mother, then his

late sister (Carbone's mother), and eventually Carbone (we'll get

to her shortly), Kerr depended on the women in his family to assist

him with his chores.     These tasks included, amongst other things,

running errands, doing his laundry, cleaning, cooking, shopping,


                                  - 4 -
banking, prescription pickup, and postal business.       Near the end

of his life, Kerr also suffered from Parkinson's disease and stage

four metastatic cancer.   With that brief sketch of Kerr's history

in place, we'll next offer insight into Carbone's and Kerr's

relationship before turning to the reason we're here.

          B. Carbone and Kerr:    A Close Relationship

          Since her youth, Carbone enjoyed a special relationship

with Kerr.   That relationship began when Carbone and her siblings

moved into Kerr's upstairs Grove Street apartment unit after Kerr's

mother (Carbone's grandmother) passed away.       Kerr acted as a

fatherly figure, providing Carbone and her siblings with guidance,

discipline, love, and financial support.      Over the years, Kerr

provided Carbone with ongoing financial assistance.      For example,

he paid for Carbone's first two vehicles, both of her weddings,

IVF treatments, car repairs, gas, and various odds and ends.      As

she put it at trial, Kerr "just took care of me."

          Importantly, Carbone served both as Kerr's professional

assistant and as his personal assistant beginning in 1999 and 2003,

respectively.   Professionally, Carbone served as Kerr's executive

assistant at the Chelsea Community Center for twenty-six years, in

a role she described as being "Wayne's right-hand man."       In that

capacity, she answered the Center's phone, handled the Center's

financial transactions and technology, and generally assisted Kerr

with miscellaneous administrative tasks.   Outside of work, Carbone


                                 - 5 -
also managed Kerr's personal affairs following her mother's death

in 2003.        Like her predecessors, Carbone orchestrated Kerr's

errands.        She   also   handled    Kerr's      finances,     including   hand

delivering his bank statements to him, paying his bills, collecting

his    rental    income,     and    setting    up    his   bank   accounts.     As

compensation for Carbone's considerable labor, Kerr acknowledged

that he amended his will to leave Carbone the Grove Street property

and also designated her the beneficiary of his Citizens Bank

account.   However, despite Carbone's access to Kerr's finances, he

said he never granted her permission to transfer funds from his

Nationwide Life or Citizens Bank accounts or to use funds from

those accounts for her personal use.             As we'll soon see, this lack

of permission did not deter Carbone from helping herself to his

stash.

            C. Carbone's Scheme

            Despite their bond, Kerr's and Carbone's relationship

was changing, though unbeknownst to Kerr.

            In 2017, several clandestine withdrawals from Kerr's

Nationwide account served as a harbinger of trouble to come.

Beginning with a $30,000 withdrawal on July 6, 2017, Kerr's account

was subjected to a series of five-figure withdrawals.                    Notably,

each   withdrawal,      which      incidentally     listed   Carbone's   contact

information, was transacted from the Boston Marine Society, where

Carbone had recently begun working.                 In 2018, Carbone initiated


                                       - 6 -
another four withdrawals from Kerr's Nationwide account, totaling

$55,000.     By July 30, 2018, Kerr's Nationwide account had been

reduced from $160,265 to $2,736.32.     $105,000 of Kerr's Nationwide

money was siphoned into Kerr's Citizens Bank account, while $57,000

was deposited directly into Carbone's own Citizens Bank account.

           And Carbone also preyed on Kerr's Citizens Bank account.

Evidence presented at trial showed that between January 3, 2017

and September 5, 2018, Carbone withdrew a total of $454,787.13

from the account - into which, recall, she directed $105,000 of

Kerr's Nationwide funds during the same period - using a series of

checks that were sent via U.S. mail to Kerr at his Grove Street

residence.    This snail-mail delivery was important because further

evidence showed that, in 2016, Carbone told David Sacco ("Sacco"),

the U.S. Postal Service carrier covering Grove Street, that she

was taking control of Kerr's finances. And she therefore requested

that he place a hold on Kerr's home mail delivery, which he did

beginning in January 2017.     Following Carbone's directive, Sacco

began personally remitting all of Kerr's mail to her.      Financial

forensic data revealed that Carbone deposited Kerr's stolen funds

into her various bank accounts and withdrew large sums of cash

during this period.      When all was said and done, Carbone had

transferred a total of $511,787.13 from Kerr's Nationwide and

Citizens Bank accounts to herself.




                                - 7 -
           During this period, Kerr's finances weren't the only

thing in flux.    Carbone's relationship with her kinfolk became

strained when, out of the blue, she started denouncing her family

and questioning her lineage.        Carbone also began displaying a

noticeable socioeconomic status upgrade, evidenced by a recently

purchased Lexus SUV, frequent vacations, and designer clothing and

handbags. Additionally, she picked up a new trick of the fraudster

trade:    falsifying financial documents and bank statements, her

mechanism for keeping Kerr in the dark about her thievery.         Beyond

the statements' inaccurate amounts, Carbone's manufactured false

documents featured the marks of an amateur swindler, such as

suspicious varying fonts, crooked and off-center numbers, and

traces of white-out strips.      By creating these phony documents,

Carbone was able to falsely represent to Kerr that first, his

Citizens Bank account had a balance of over $330,000 when, in

actuality, it was in the red, and second, his Nationwide account

had more than $160,000 when, in actuality, it contained a pittance,

just $2,700.    Her efforts to cover her tracks didn't end there.

Further   discovery   revealed   that   Kerr's   Citizens   Bank   account

included a September 2017 letter purportedly authorizing Carbone

to handle all of Kerr's banking transactions and granting her a




                                 - 8 -
durable        power   of   attorney     if    Kerr   became   disabled   or

incapacitated.1

               D. Kerr's Discovery

               As is often said:     What's done in the dark will come to

light.       That light shone on September 3, 2018, when Kerr called

his nephew (Carbone's brother) "[d]evastated, depressed, [and]

angry" after he'd spoken with a financial advisor at Citizens Bank.

The bank's money-man informed Kerr that his accounts had been wiped

out.       Enlisting the help of a couple of other relatives — his niece

and nephew (Carbone's sister and brother, respectively) — Kerr

began reviewing and dissecting his financial records and bank

statements and the fraud was unearthed.           Yet, the identity of the

perpetrator remained unknown until Carbone, while responding to

inquiries about Kerr's funds, sent a series of texts implicating

herself.2       Once Kerr's assets turned up missing, Carbone began



       No evidence surfaced indicating Kerr was ever disabled or
       1

incapacitated prior to the fraud's discovery.

       2   In one notable text to her sister, Carbone stated:

               I will talk to you later if you want but for
               the immediate response I will start putting
               money back but I'm turning this around I'm
               not going to feel bad if he wants to do this
               and take some kind of action I am going to
               blow other shit up that is not going to be
               pretty.

In another revealing text exchange, Carbone said "I can slowly
start putting it [(the money)] back but I do not want to text what
I want to say but maybe it would be easier but right now I am


                                       - 9 -
throwing around allegations of sexual abuse, accusing her brothers

of molesting her as a child with her sister looking on without

intervention, and accusing Kerr of molesting her three brothers

when they were children.

            E. Procedural Background

            In due course, a four-count federal indictment issued,3

trial got underway, and Carbone was found guilty by a jury of her

peers.4    Relevant to Carbone's appeal is the court's admission —

over her objections — of two key government witnesses' testimonies.

First is Kerr, whose video deposition was taken before trial

because he was dying, and then later was shown to the jury on the

second day of trial.    Her next challenge is about Christine Brown

("Brown"), Carbone's former employee at the Chelsea Community

Center, whom the government offered as a rebuttal witness to

establish (among other things) a potential motive for Carbone's

actions.     Unhappy with the proceedings below, Carbone timely

appealed, leading us here.




blaming him for the abuse I endured as a child and it was absolutely
his fault!"
     3 Carbone was charged with four counts of wire fraud under 

 and four counts of aggravated identity theft under
18 U.S.C. § 1028A(a)(1).

     4 At sentencing, the District Court meted out a sentence of
fifty-four months' immurement, three years' supervised release,
and restitution in the amount of $493,729.94.


                               - 10 -
               II. DISCUSSION

               Before us, Carbone launches several arguments, which,

when       reduced   to   each's   core   essence,   amount   to   two   primary

contentions:         (1) that the court did not afford her counsel

sufficient time to adequately prepare for Kerr's and Brown's

testimonies; and (2) that the court improperly admitted their

testimonies at trial.          We'll start with Carbone's challenges to

Kerr before turning our attention to Brown.

               A. Kerr's Deposition:       Motion for Continuance

               We'll begin with Carbone's challenge to the court's

denial of her requests to continue Kerr's deposition.

               On May 18, 2021, prior to Carbone's trial, the government

filed an assented-to motion under Rule 15 of the Federal Rules of

Criminal Procedure to conduct Kerr's testimony by deposition in

order to preserve it for trial because his health was in decline.5

The District Court granted that request on June 4th.               On June 10th,

after learning from a family member that Kerr's condition had taken

a turn for the worse, the government notified the court and Carbone

of its intention to depose Kerr five days later on June 15th.                The

following day, Carbone, in response, moved to continue Kerr's

deposition for thirty days (which would have been July 15th),

arguing that the government's notice was unreasonably short and



       In doing so, the government noted that Kerr was suffering
       5

from stage four prostate cancer and had an uncertain prognosis.


                                      - 11 -
consequently did not afford her counsel sufficient preparation

time.      The court agreed, and issued an order that same day,

concluding that while sympathetic to the government's need to

expeditiously secure Kerr's testimony, its notice was, in fact,

unreasonably short.        However, in reaching that conclusion, the

court denied Carbone's request for the thirty-day continuance she

requested and instead ordered the government to come up with an

expeditious but reasonable alternative date by that forthcoming

Monday, June 14th, which it did.               The government proposed June

24th, explaining that it was fourteen days from when it originally

filed its deposition notice, and to further simplify matters, it

committed to limiting its direct examination of Kerr to twenty

minutes.     Reiterating the need for urgency in capturing Kerr's

vital   testimony   and    relying    on   a    statement   from   Joyce   Agri

("Agri"), a nurse at Kerr's assisted living facility familiar with

his medical history, the government stressed "it is difficult to

predict with certainty the course of Mr. Kerr's medical condition

from day to day, but that any day he may no longer be able to

participate in a deposition."

            That same day, Carbone, after receiving notice of the

court's decision, moved for reconsideration, requesting the court

grant her a continuance, this time until June 30th to prepare for

Kerr's deposition.        She argued that the government's notice was

not only unreasonable because of the deposition's abbreviated


                                     - 12 -
timeline, but also prejudicial because it deprived her counsel of

adequate preparation time.      The government countered that the date

was   reasonable    considering    Kerr's     failing   health   and   the

deposition's intended brevity.      The court denied Carbone's motion

for reconsideration and sided with the government, concluding that

the   revised      deposition    date   was     reasonable   under     the

circumstances.     Accordingly, Kerr was deposed on June 24th.

           Against this backdrop, Carbone tells us that the court

erred when it denied her motion to continue Kerr's deposition for

the thirty days she had requested.      That is so, she argues, because

the court's ruling was based in part on a "misplaced emphasis" on

the government's estimate of time it would need to conduct its

direct examination.      However, says Carbone, the brevity of the

government's projected direct examination bore no correlation to

the time she would need to adequately prepare a cross-examination

of Kerr.   She emphasizes that because Kerr's deposition testimony

was taken in anticipation of his inability to testify at trial,

her counsel needed the same preparatory time she would ordinarily

require in order to properly prepare for a trial cross-examination,

and that here, effective assistance of counsel would particularly

require "the time-consuming tasks of reviewing years of financial

transactions and legal documents to ascertain the verbal and

written permissions provided by Kerr to Carbone, and consulting

with Carbone and case investigators."


                                  - 13 -
            Notwithstanding the customary and arduous demands of

trial    preparation,    Carbone    also   contends     that    her   counsel's

preparation time was restricted even further by a pre-scheduled,

non-refundable, international travel plan which would leave her

without access to reliable technology.            And the court was timely

made aware of these shortcomings that impinged on her counsel's

availability. In explaining why her attorney should not be faulted

for her personal scheduling conflicts, Carbone points out that

although her counsel anticipated Kerr would need to be deposed

before    trial,   she   had   no   reason   to    be   fully    prepared   to

cross-examine Kerr by mid-June since the case wasn't calendared

for trial until October of that year (2021).              Turning to Kerr's

health problems, Carbone says that despite the court's concern

about the potential permanent loss of Kerr's testimony, the record

lacks sufficiently reliable evidence that the additional six days

(that she requested in her subsequent reconsideration motion)

would have rendered Kerr permanently unable to testify or posed an

insurmountable inconvenience to the court or government because

"there is nothing in the record to corroborate [Agri's] statement

concerning    [Kerr's]     potential       inability     to     be    deposed."

Accordingly, given the centrality of Kerr's testimony and her

counsel's lack of adequate preparation time, Carbone claims she

suffered prejudice from the District Court's refusal to grant her

more time.


                                    - 14 -
             Unsurprisingly,   the   government   disagrees.   As   a

threshold matter, the government says Carbone has waived any

argument relative to both of her motions.6 Notwithstanding waiver,

the government maintains that Carbone's challenge to the court's


     6 The government spills much ink arguing that Carbone has
waived her challenge to either of the court's rulings below.
Waiver as to the continuance motion because she did not separately
address it in her brief. Waiver as to the court's reconsideration
decision because her briefing similarly fails to address the
relevant reconsideration standard.     Our perusal of Carbone's
overall briefing causes us to disagree with the government's
assessment.    In her reply brief, Carbone responds to the
government's waiver contention like this:

             It was only after that [reconsideration]
             motion that the court entered an order, D.E.
             61, explaining its reasons for the earlier
             order [denying her request for a 30-day
             extension]. . . . It is clear [Carbone] is
             challenging the denial of the motion to
             continue the deposition for 30 days and there
             has been no waiver.       In any event, the
             government acknowledges that the standard of
             review for the denial of a motion for a
             continuance and a motion to reconsider remains
             the same--abuse of discretion.

     The gravamen of Carbone's arguments, even if maybe not as
artfully presented as they could be, is clearly aimed at the
District Court's denial of her requests for more time to depose
Kerr. Given Carbone's failure to persuade us on any of her legal
theories, we will proceed to consider her challenge to both
District Court motion decisions collectively, employing the
assessment standards for the denial of continuance (as she
appropriately argues), and do so through the review lens of abuse
of discretion.   See United States v. Williams, 

(1st Cir. 2010) (explaining that we review a court's denial of a
defendant's motion to continue for abuse of discretion); see also
United States v. Allen, 

 (1st Cir. 2009) ("We review
the denial of a motion for reconsideration for abuse of
discretion.").



                                 - 15 -
rulings which allowed her some but not all of the extension relief

she   requested     fails    because      the        government's           notice    was

reasonable, especially under the circumstances here.                           It also

contends that Carbone's challenge to the sufficiency of Agri's

medical   statement   outlining     the     decline        of    Kerr's      health    is

meritless, particularly since she did not substantively attack it

below,    but   instead    only   reiterated         her    need      for    additional

preparation time.7        Therefore, according to the government, we

should affirm the District Court's decision because the record

clearly indicates that the court carefully balanced the parties'

interests and concerns in making its determination — the very

antithesis of abuse of discretion.          And, continues the government,

Carbone cannot show prejudice as her counsel's cross-examination

spanned    forty   pages    (as   opposed       to    the       ten   pages     of    the

government's direct examination), thereby demonstrating she was

able to adequately explore multiple topics at length.                          And, the

government argues, Carbone's failure to identify any specific

information she would have uncovered if the deposition had been

held on June 30th (or, for that matter, July 15th) rather than on


      7The government points out that in moving for a Rule 15
deposition and opposing Carbone's continuance motion, "[it]
represented that Kerr was suffering from stage-four cancer that
had spread to his spine and back, that his medical condition was
deteriorating, and that a registered nurse who worked at Kerr's
assisted living facility and was familiar with his medical history
had said that 'at any time' he may no longer be able to participate
in a deposition."


                                    - 16 -
the June 24, 2021 court-ordered deposition date further undermines

her claim.

           We    begin    our      review     by   charting    the    guiding       legal

principles relative to continuances.               "District courts enjoy broad

discretion in managing their dockets." Delgado v. Pawtucket Police

Dep't, 

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

Maldonado, 

 (1st Cir. 2013).                   And in light of this

management responsibility, the trial court, when presented with a

continuance     motion,       is    obligated      to    consider      "the    reasons

contemporaneously presented in support of the request for the

continuance."      West v. United States, 

 (1st Cir.

2011) (citation omitted).             It is also required to consider (among

other   things):      the     amount     of    time     needed   versus       the    time

available;      the   movant's        diligence       and    whether    the     movant

contributed to their perceived predicament; the complexity of the

case; the extent of any inconvenience to others (such as the court,

witnesses, and the opposing party); and the likelihood of injustice

or unfair prejudice resulting from the denial of the continuance.

           Because       of     the     latitude        we   afford    the     court's

docket-juggling act, we review the denial of a continuance motion

"look[ing] primarily to the persuasiveness of the trial court's

reasons for refusing the continuance and give[] due regard not

only to the factors which inform that court's ruling but also to


                                        - 17 -
its superior point of vantage."        Delgado, 

 (second

alteration in original) (citation omitted).        It is the aggrieved

party who bears the burden of demonstrating to us that in refusing

the   continuance    request,   "the    district   court   exhibited   an

unreasonable and arbitrary insistence upon expeditiousness in the

face of a justifiable request for delay."            

 (citation and

internal quotation marks omitted).          Therefore, we review the

District Court's denial of Carbone's continuance motion for abuse

of discretion.      See United States v. Rosario-Otero, 

 (1st Cir. 2013).     And, under this standard, we will not disrupt

the District Court's decision if reasonable minds could disagree

about the proper ruling.    See Maldonado, 

.     Moreover,

in our scrutiny of a plaint to overturn a trial judge's denial of

a continuance motion, we pay close attention to the likelihood of

injustice or prejudice resulting from the denial of a continuance

motion and "consider this final factor [of prejudice] to be

essential."   United States v. Delgado-Marrero, 

(1st Cir. 2014).      Accordingly, we overturn when the movant has

"identifie[d] specific, concrete ways in which the denial resulted

in 'substantial prejudice' to his or her defense."         

 (citation

omitted); see, e.g., United States v. Saccoccia, 

(1st Cir. 1995).

          We think that when the court describes a factor as

"essential," it should be viewed by appealing litigants as a clear


                                 - 18 -
heads-up to either make a substantial prejudice showing or risk

losing on appeal.         Delgado-Marrero, 

.            Focusing our

attention then, on that essential factor here, we can resolve

Carbone's claim with some dispatch — Carbone, having failed to

heed the message, has not shown prejudice resulting from the

court's decision to deny her continuance motion. This is Carbone's

prejudice argument:

              Kerr was the only person with first-hand
              knowledge who could testify that Carbone was
              not authorized to [withdraw money from his
              accounts].      Had  counsel   been   provided
              additional time to review the discovery and
              investigate, counsel would have had a better
              opportunity, as stated in the opposition to
              the admission of the deposition, to "uncover[]
              highly significant but previously unknown
              information regarding Kerr's financial and
              other activities," . . . and an ability to
              meaningfully cross-examine Kerr and test his
              credibility.

Other    than    providing    a     general      description     of   the   perceived

inconvenience of a slightly expedited deposition, Carbone does not

point to, as our precedent requires, "specific, concrete ways"

that    the     court's    denial    of    her     continuance    motion     actually

prejudiced her defense.              

      Although she speculates that a

continuance may have provided her more time to discover additional

information about Kerr's finances and other activities, she does

not     point    to   any    specific       or     concrete    evidence,      witness

information, or strategy that she might have otherwise utilized

had she been granted an additional few days.                   See Maldonado, 708


                                          - 19 -
F.3d at 43–44 (affirming the district court's denial of the

defendant's motion for continuance because the defendant made no

showing that any specific and compelling prejudice resulted from

the denial of his motion); cf. United States v. Pérez-Ruiz, 

, 8–9 (1st Cir. 2003) (explaining that "some showing of

prejudice    beyond     mere    assertion   is    required   in    the   delayed

disclosure context").          For instance, Carbone makes no assertion

that financial or other relevant documents surfaced between June

24th, the day Kerr was deposed, and June 30, 2021, the continuance

date she sought (or even July 15th, the date of her original

request), that were important to her defense, or contradicted or

called into question any statement Kerr made during his deposition,

or that caused her to be deprived of an opportunity to probe or

impeach Kerr's credibility.          Although Carbone vaguely alludes to

probative financial statements and data, she fails to specify what

they   are   or   how   they     would   have    been   useful    in   her   cross

examination of Kerr.           Nor does she delineate what questions she

would have posed at a later deposition that she was unable to ask

on June 24th.      Her generic supposition that if given additional

time her counsel would have had an opportunity "to meaningfully

cross-examine Kerr and test his credibility" tells us nothing

useful for our analysis.          Again we emphasize, generalized claims

of prejudice do not suffice to make a showing of substantial




                                     - 20 -
prejudice to one's defense.   See Delgado-Marrero, 

.

Accordingly, Carbone's claim fails.8

          B. Kerr's Deposition:      Testimony at Trial

          Next, we turn to Carbone's argument challenging the

admissibility of her uncle's deposition testimony at trial.           On

appeal, Carbone says the District Court's error was twofold when

it admitted Kerr's deposition testimony.           We'll address each

argument in turn.

          1. Kerr's Competency Determination

          First   up,   Carbone    argues   that   the   District   Court

stumbled when it failed to hold a competency hearing before

admitting Kerr's deposition testimony, contending she was deprived

of the opportunity to establish Kerr's incompetency at the time he


     8 Pushing back, Carbone argues that the government concedes
that new allegations surfaced post Kerr's deposition about him
sexually abusing third parties.          And therefore, Carbone
postulates, she could have questioned Kerr about those allegations
to raise doubts about his credibility.       But Carbone makes no
argument that she learned of these allegations between June 24th
and July 15th (which is the timeframe she complains of on appeal).
Without some explanation about how this later-learned information
impacted her ability to question Kerr had her specific
reconsideration plea for more time been granted, we fail to see
the relevance of her argument. And further, Carbone never moved
to depose Kerr again in the lead up to trial after learning about
these new allegations.      All in all, under the circumstances
presented here, we cannot conclude that the court abused its
discretion when it denied Carbone the full extension she requested.
See Saccoccia, 

 ("[T]he decision below must endure
unless the party who moved for the continuance can demonstrate
that, in withholding relief, the trial court indulged a serious
error of law or suffered a meaningful lapse of judgment, resulting
in substantial prejudice to the movant.").


                                  - 21 -
sat for his deposition.   Before diving in, we first set the stage

so that the reader can understand the debate which transpired

below.

         On September 28, 2021, just days before the start of

trial, the government filed a motion in limine requesting a

preliminary ruling on the admissibility of Kerr's deposition.   In

it, the government contended that Kerr was unavailable to testify

under Federal Rule of Evidence 804(a)(4)9 due to his medical

infirmity, and it therefore asked the court to allow admission of

a video of his deposition.   To demonstrate Kerr's unavailability,

the government submitted an affidavit from Dr. Saira Nisar ("Dr.

Nisar"), the medical director at Kerr's assisted living facility.

Dr. Nisar's assessment was bleak, noting that Kerr was suffering

from metastatic cancer, immobility, and cognitive decline.      She

explained that:

         Since June 2021, Kerr has declined both
         physically and cognitively. . . . In order
         to treat his pain and spasms, Mr. Kerr is
         receiving painkillers as well as muscle
         relaxants.     These include the narcotic
         Oxycodone and Baclofen. Given Mr. Kerr's age
         and condition, such medications would have an
         impact on his cognition, for example, his
         memory and ability to understand. Since June
         2021, Mr. Kerr has also been treated for a
         urinary tract infection twice, in August 2021.

    9  Rule 804(a)(4) provides that "[a] declarant is considered
to be unavailable as a witness if the declarant: . . . cannot be
present or testify at the trial or hearing because of death or a
then-existing infirmity, physical illness, or mental illness
. . . ."


                              - 22 -
          Given Mr. Kerr's age, these infections would
          also have an impact on his cognitive ability.
          Mr. Kerr is currently unable to have complex
          conversations or sustain a conversation for
          anything other than a short period of time.
          Based on my medical expertise and my regular
          contact with Mr. Kerr, it is my opinion that
          he is currently not physically able to provide
          in-person testimony at a trial, and there is
          no reasonable likelihood that he will become
          physically able to do so in the future.
          Further, even if he was physically able to
          provide in-person testimony, it is my opinion
          that Mr. Kerr's cognition has diminished since
          June 2021 to the point that he is not currently
          able to sustain complex conversations or
          conversations for anything other than a short
          period of time.

          Carbone filed an objection to the government's motion,

arguing three grounds.    Reason one, she argued that the government

had not actually proven Kerr's unavailability and because of that,

she asked the court to:    (a)    hold a hearing to test Dr. Nisar's

allegations   regarding    Kerr's   purported   unavailability;   and

(b)   order the government to hand over Kerr's medical records to

her in advance of said hearing.      Second, relying on Dr. Nisar's

conclusions about Kerr's cognitive decline, Carbone requested that

the court schedule a competency hearing to assess whether Kerr had

sufficient mental acuity to testify at trial — in other words,

whether Kerr was actually an unavailable witness — and also to

assess whether he was, in fact, competent at the time of his

deposition.   Third, Carbone reiterated her protestation that the




                                 - 23 -
rush to depose Kerr had deprived her of a meaningful opportunity

to cross-examine him.

          In turn, the government disputed Carbone's arguments

questioning   Kerr's   competency   at   the   time   he   sat   for   his

deposition, arguing, among other points, that:        Kerr's deposition

testimony demonstrated his competence to testify; and because

Carbone did not challenge Kerr's competency before or during his

deposition she "should not be permitted to bootstrap [Kerr's]

current unavailability to attack his past competency in an effort

to shield the jury from hearing his testimony, particularly on the

eve of trial."   The government also provided the court with a copy

of Kerr's video deposition. Wrapping up, the government emphasized

Kerr's unavailability to appear at trial given his extremely

impaired health.

          Whether Kerr would be deemed an unavailable witness

remained unresolved until the court's final pre-trial conference.

During that proceeding, the court granted the government's motion

in limine on the admissibility of Kerr's deposition, reasoning:

          I don't see any alternative but to allow that.
          That was the reason why the deposition was
          taken. And in this day of COVID, I think it
          would be cruel to require someone who, as I
          understand it, is suffering from Alzheimer's
          to actually appear in court. . . . I think




                               - 24 -
                 the motion in limine by the government to
                 proceed by way of deposition is allowed.10

Importantly for purposes of this appeal, the court made no ruling

on Carbone's requests for a competency hearing or access to Kerr's

medical records.            In due course, Carbone's trial got underway and

Kerr's         deposition      testimony    was      admitted,         over   Carbone's

objection, and played for the jury.                  Kerr passed away later that

day.

                 On appeal, Carbone says the court erred in not conducting

a competency hearing before admitting Kerr's deposition.                         As she

puts it, "[she] was deprived of the opportunity to establish a

record that Kerr was not competent at the time of his deposition."

In support of her argument, Carbone cites to a case from a sister

circuit, United States v. Crosby, 

 (D.C. Cir. 1972),

wherein the court enunciated what it said was the common law

principle with respect to a witness's capacity, to wit, that any

witness must be competent to testify, and that "once a trial judge

is confronted by any 'red flag' of material impact upon competency

of   a        witness,    an   inquiry   must   be    made      into    the   facts   and

circumstances            relevant   thereto."        

    (emphasis     in

original).         Carbone says there were red flags galore — "sufficient

indication that Kerr could not accurately recollect or recollect



       This was a temporary mix-up on the court's part. Kerr was
         10

not suffering from Alzheimer's disease but instead was afflicted
with Parkinson's disease and terminal cancer, as noted.


                                         - 25 -
at   all   information    that     was   critical      to    his    [deposition]

statements."     And this spotty11 and inconsistent12 performance

"coupled with the medical affidavit that affirmed Kerr's mental

regression since [the] June 2021 [deposition] was enough to warrant

a competency hearing."      And this is so, she continues, in spite of

Federal Rule of Evidence 601, which establishes a presumption of

competency as to all potential witnesses.

           In   support   of   her    argument,      she    highlights      several

aspects of the record which she says undergird her contention that

a competency hearing was necessary before Kerr's deposition could

be admitted.    For instance, "[t]he record reveals nothing about

the medications [he] was taking or their impact on any cognitive

abilities."      And,    Carbone     states,   the    record       belies   Kerr's

assertion, at deposition, that he did not personally notice any

cognitive side effects from his medications.




     11  Specifically,   she points   to  Kerr's   inability  to
remember: information about his accountant; the year he left his
job at Stop & Shop to work at the YMCA; when he retired from the
YMCA; and his conversation with an attorney about his assets
pending a civil lawsuit.
     12Carbone points to the following inconsistencies in Kerr's
deposition testimony: he did not give Carbone authorization to
receive emails on his behalf but when provided evidence of his
written authorization he stated he believed them to be true he had
given family members $50,000 in cash but later stated that he had
given them $5,000; he recanted his recollection about how his
medical expenses were paid for; and his statements regarding his
retirement plan with the YMCA.


                                     - 26 -
             In Carbone's view, the cloud of doubt hanging over Kerr's

competency only grew darker when Dr. Nisar concluded that Kerr had

cognitively declined since his deposition.          That's important,

Carbone says, because although Dr. Nisar began caring for Kerr in

June 2021 when he entered the medical facility, there is no

indication in the record that she ever assessed Kerr's cognitive

baseline upon his admission, nor is there evidence she reviewed

his health care history to evaluate whether there had been any

decline in his mental acumen prior to June 2021.          And, Carbone

continues, given Kerr's extended illness (most notably, his battle

with Parkinson's disease), it cannot be presumed that his mental

deterioration only began in June 2021 or that he was competent at

the   time   of   his   deposition.   The   questionability   of   Kerr's

competency only deepened, Carbone asserts, given testimony from

several trial witnesses suggesting an earlier onset of Kerr's

cognitive decline.13 And although this later information unearthed

at trial may not have been known prior to the court ruling Kerr's

testimony admissible, it is information, Carbone maintains, that

could have been gleaned from a competency hearing prior to the




       Specifically, Carbone points to her witnesses' testimonies
      13

to make her point. One testified that Kerr began calling her the
wrong name in 2016 even though she had known Kerr her entire life.
Another testified that, in his opinion, Kerr began showing signs
of dementia around 2015–16, and that Kerr became very forgetful
and revealed personal, confidential information which he had asked
Kerr to keep private.


                                  - 27 -
court rendering its decision.           Even without this information,

Carbone maintains that "[t]he content of Dr. Nisar's affidavit,

coupled with Kerr's contradictory statements and faulty memory,

should    have   triggered   further     examination    by   the   court."

Accordingly, she claims prejudice from the court's denial of her

competency hearing request, and further asserts that the court's

error was exacerbated by its refusal to provide her access to

Kerr's medical records.

           The government insists that the court was not required

to conduct a competency hearing. It argues that Carbone's reliance

in Crosby is misplaced as it predates Rule 601 and is therefore

dead-letter law.    And, the government explains, with the adoption

of Rule 601, the question of competency goes to the issue of

credibility which is solely within the province of the trier of

fact.     Furthermore,   given   both    Rule   601's   presumption   of   a

witness's competency and the broad latitude we afford a district

court in determining whether such a hearing is warranted, the

District Court's decision was a proper exercise of its discretion.

That is so, the government maintains, because the record contains

adequate evidence of Kerr's competency at the time his deposition

was conducted as he "was able to answer questions and communicate

relevant information."14     Furthermore, the government asserts that


     14The government points out that, in his deposition, Kerr was
able to: provide his full name, date of birth, age, address, and


                                 - 28 -
the   contents    of   Dr.    Nisar's    affidavit     and   Kerr's   allegedly

contradictory statements, which form the foundation of Carbone's

challenge, go to Kerr's credibility, not his competency, and

therefore   are   issues      reserved    for   the    jury's   determination.

Finally, the government counters, Dr. Nisar's statement that Kerr

had cognitively declined since his deposition focused on Kerr's

medical condition as of September 2021 and did not in any way

address his capacity on the day he was deposed or suggest that

Kerr was incompetent at the time.15

            Here's our take.       More than a century ago, the Supreme

Court said that even a "lunatic or a person affected with insanity

is admissible as a witness if he ha[s] [a] sufficient understanding

to apprehend . . . the obligation of an oath, and to be capable of

giving a correct account of the matters which he has seen or heard

in reference to the questions at issue."              D.C. v. Armes, 

, 521–22 (1883).          Federal Rule of Evidence 601 codifies this



educational history; identify the medical conditions he was
suffering from; confirm that the medications he was taking were
not impacting his memory as far as he knew; clarify that his
Parkinson's disease made him feel unsure of himself and inadequate
with respect to his speech; identify Carbone as his niece and
identify the ways he had assisted her; identify Carbone's children
and the gifts he had given them; and state that he had not given
Carbone authority or permission to transfer money out of his bank
accounts for her personal use.
      15 Given
             our no-abuse-of-discretion determination, we bypass
the government's alternative argument that Carbone forfeited any
claim concerning the testimony of two trial witnesses who allegedly
raised doubts about the onset of Kerr's cognitive decline.


                                    - 29 -
well-established principle and in relevant part provides, as we

earlier noted, that "[e]very person is competent to be a witness

unless these rules provide otherwise."     Fed. R. Evid. 601.        The

Rule and advisory committee's notes make clear that the Rule leans

towards inclusion and are particularly illustrative, explaining

that:     "[n]o mental or moral qualifications for testifying as a

witness are specified"; "[d]iscretion is regularly exercised in

favor of allowing the testimony"; and "[a] witness wholly without

capacity is difficult to imagine."      Fed. R. Evid. 601 advisory

committee's notes to 1972 proposed rules.      They further specify

that "[t]he question [of capacity] is one particularly suited to

the jury as one of weight and credibility, subject to judicial

authority to review the sufficiency of the evidence."        Id.16


     16 By its own terms, Rule 601's general grounds-clearing
language could be read to suggest that incompetency could never be
grounds for excluding testimony except in situations expressly
provided for by the rules. But the government does not take such
an absolutist position, and we therefore assume that a district
court retains discretion to decide the threshold issue of witness
competency as is pertinent to its evidentiary admissibility
assessment. For example, in United States v. Ramirez, 

 (6th Cir. 1989), the Sixth Circuit explained that:

            The authority of the court to control the
            admissibility of the testimony of persons so
            impaired in some manner that they cannot give
            meaningful testimony is to be found outside of
            Rule 601. For example, the judge always has
            the authority under Rule 403 to balance the
            probative value of testimony against its
            prejudicial effect.    Similarly, under Rule
            603, the inability of a witness to take or
            comprehend an oath or affirmation will allow


                               - 30 -
          Our case law has followed suit.     See Eisen v. Picard,

, 865 n.8 (1st Cir. 1971).   In United States v. Hyson,

 (1st Cir. 1983), we held that a witness's

competency to testify is left, in the first instance, to the trial

judge's determination.   We further explained that, because there

is no provision within Rule 601 for the exclusion of a mentally

incompetent witness's testimony, "[t]he question of competency

goes to the issue of credibility, which is for the trier of fact."

   Later, in United States v. Devin, 

, 291–92 (1st

Cir. 1990), we again held that witnesses are presumed competent to

testify and that the determination of competency is reserved for

the trial court.   And although, unlike here, both the Hyson and

Devin courts opted to conduct some form of competency hearing, we

reiterated our broad rule that the courts' decisions to do so were




          the judge to exclude that person's testimony.
          An argument can also be constructed that a
          person might be impaired to the point that he
          would not be able to satisfy the "personal
          knowledge" requirement of Rule 602.

See also Sinclair v. Wainwright, 

 (11th Cir.
1987) ("[W]e are obliged to remand for a determination on the
record of the competency of the witness[.] . . . If the witness
was incompetent, then, unless admission of his testimony was
harmless beyond a reasonable doubt, a violation of due process
should be found and judgment entered accordingly.").     Moreover,
subsequent to the adoption of Rule 601, our circuit has reviewed
two cases involving a district court's assessment of competency,
and we found no abuse of discretion in the different procedures
utilized therein. See, e.g., United States v. Hyson, 

(1st Cir. 1983); United States v. Devin, 918 F.2d (1st Cir. 1990).


                              - 31 -
discretionary calls.     See Devin, 918 F.2d at 291–92; Hyson, 

.

          The question Carbone asks here is whether the District

Court improperly exercised its discretion when it elected not to

hold a competency hearing.17    Given the circumstances of the case

before us, we think not and here's why.       We have long reprised

that even a criminal defendant "is not entitled as of right to an

evidentiary hearing on a pretrial or posttrial motion."        United

States v. McGill, 

 (1st Cir. 1993).      Therefore, to

garner such a hearing, we've explained that a defendant "carr[ies]

a fairly heavy burden of demonstrating a need for [such] special

treatment."    Id.; see also United States v. Panitz, 

,

1273–74 (1st Cir. 1990) (collecting cases).      When the competency

of a witness is questioned, the general rule we just articulated




     17 Carbone   makes this clear in her reply brief:

          The government denies Carbone's allegations as
          to the competency of Kerr, stating that "Kerr
          was able to answer questions and communicate
          relevant information." This misses the point.
          Carbone has not argued that the entirety of
          Kerr's deposition was unintelligible. Nor is
          that the standard to trigger a competency
          hearing.    What Carbone has argued is that
          there is sufficient indication that Kerr could
          not accurately recollect or recollect at all
          information    that   was  critical   to   his
          statements.    This coupled with the medical
          affidavit    that   affirmed   Kerr's   mental
          regression since June 2021 was enough to
          warrant a competency hearing.


                                - 32 -
does not get displaced:     "[T]here is no legal requirement that the

trial judge conduct a formal hearing."           United States v. Gerry,

 (2d Cir. 1975).           Instead, the trial judge's

obligation is to make "such an inquiry as will satisfy the Court

that the witness is competent to testify but the form of that

inquiry rests in the discretion of the trial court."             Id.; see

also Henderson v. United States, 

 (6th Cir. 1955)

(explaining that the competency of a witness is a question reserved

for the trial court and "[i]f the competency of a witness is

challenged before testifying, it is the duty of the Court to make

such    examination   as   will   satisfy   it   of   the   competency   or

incompetency of the witness"); United States v. Odom, 

 (4th Cir. 1984) (explaining that the necessity of holding

a hearing on the preliminary question of a witness' competency is

a matter within the discretion of the trial court).18         Even Federal

Rule of Evidence 104, which directs the trial court to decide

preliminary questions about a witness's qualifications or the

admissibility of evidence, does not prescribe the need for an

evidentiary hearing in order to make such a determination.               See

Fed. R. Evid. 104.




       That said, when the competency of a criminal defendant is
       18

in question, a different set of rules apply. See United States v.
Muriel-Cruz, 

 (1st Cir. 2005) (determining whether
a competency hearing for a criminal defendant was adequate under

 and § 4247(d)).


                                  - 33 -
           Here, necessarily underlying the District Court's ruling

that Kerr's June 24th deposition testimony was admissible was the

court's    threshold       determination         that    Kerr     was,     in     fact,

sufficiently competent to testify at his deposition.                       In making

that threshold determination, the court had before it several

submissions relevant to its assessment of Kerr's mental capacity,

those being:        Carbone's requests for a competency hearing and

access to Kerr's medical records; legal briefs containing the

parties' vastly different takes on Kerr's competency; Carbone's

admissibility challenges arising in part from Kerr's deposition

transcript    and    in    part    from    Dr.   Nisar's   affidavit;       and,     of

particular import, Kerr's video deposition which allowed the court

to observe Kerr's demeanor and gauge his ability to respond to

questions in real time.              After a thorough review of all the

information and arguments at hand, the District Court, in the end,

was satisfied that a competency hearing was not needed to further

evaluate Kerr's mental capacity at the time he was deposed, and

accordingly,    it    exercised      its    broad   discretion      to   admit     the

testimony.

           Based on our own examination of the record (and assuming

Crosby's     common       law     principles     might     have     some        ongoing

jurisprudential purchase) we cannot find fault in that decision.

See Devin, 

 (explaining that we will overturn a

finding of competency only for an abuse of discretion); see also


                                      - 34 -
Crosby,   

   ("We   are    cognizant      . . .   that   the

competency of a witness is a matter which addresses itself to the

sound discretion of the trial court . . . .").

           In reaching that conclusion, we first observe that when

the government first sought to take Kerr's deposition, Carbone

agreed to the request and as such, the government submitted an

assented-to Rule 15 deposition motion, which the court granted.

Subsequently,    as    outlined     at   length   above,    contentions       arose

between   the   parties      primarily     involving       the    timeframe     for

conducting the deposition.          Amid that dispute and in support of

its request to depose Kerr sooner rather than later, the government

reported to the court that it had spoken with Agri (a nurse at

Kerr's facility, recall) about the status of Kerr's health.                     Agri

explained, as we earlier noted, that it was difficult to predict

with certainty the course of Kerr's medical condition from day to

day given his terminal illness diagnosis, and she opined that Kerr

could reach a point where he would no longer be able to participate

in a deposition.       Presumably — so that Carbone could verify Agri's

professional assessment of Kerr's overall medical condition had

she, in the exercise of due diligence, opted to do so — the

government provided Carbone with Agri's contact information.

           However, and of import here, nothing in the record (i.e.,

no affidavit from counsel) indicates that Carbone ever availed

herself of an opportunity to speak with Agri prior to Kerr being


                                     - 35 -
deposed — either about Kerr's overall medical condition or whether

any of his diagnoses or any of his medications could or would

impact his mental cognition.     Nor is there anything in the record

to suggest Carbone ever sought to access Kerr's medical records

prior to (or at the time of) his deposition being taken.         In other

words, Carbone declined to make her own independent assessment of

Kerr's competency, even though it is the party challenging a

witness's    competency   who   bears   the   burden   of   demonstrating

incompetency.   See, e.g., von Hirsch v. Olson, No. 2:21-cv-00107-

NT, 

, at *5 (D. Me. Apr. 27, 2023) (explaining that

when a party challenges a witness' competency, it is their burden

to overcome Rule 601's presumption that said witness is competent

to provide testimony);19 Swanger v. Diversified Treatment Alts.,


     19 Webriefly note that the factual scenario of von Hirsch is
somewhat akin to the scenario before us here. In that case, the
plaintiff called the cognitive abilities of von Hirsch into
question from the start of the litigation, asserting that von
Hirsch had been diagnosed with Parkinson's disease and possessed
significant "cognitive symptoms . . . which . . . made him
vulnerable to exploitation." von Hirsch, 

, at *1.
Despite that warning, and two doctors' opinions that von Hirsch
was not competent to provide deposition or in-person testimony,
von Hirsch was deposed by the defendant. 

. "No other
information or updates on the issue of von Hirsch's competency
were provided by either party; no competency hearing was requested
or held; and no competency determination [had] been made." 

The plaintiff later sought to exclude von Hirsch's deposition
testimony on the ground that he was not competent at the time of
his deposition and continued to be incompetent on the eve of trial.

.   The district court noted Rule 601's presumption of
competency and held that it was therefore the plaintiff's burden
of overcoming that presumption. 

 And, upon review, the court
found that the plaintiff had not met that burden of demonstrating


                                 - 36 -
No. 4:11-CV-894, 

, at *3 (M.D. Pa. Feb. 4, 2019)

("The party challenging the competency of a witness bears the

burden of proving the incompetence."); Lopez v. Meluzio, No. CV

05-0009, 

, at *5 (E.D.N.Y. Dec. 29, 2006) ("The

burden of proving a witness's incompetence lies with the objecting

party.").20   Further indication that Carbone had no concerns about

Kerr's competency when deposed can be found in her Continuance

Motion, filed in response to the government's motion to schedule

Kerr's deposition.    Its focus was not on any reservations about

Kerr's then-present mental capacity, but rather on Carbone's need

for additional preparation time.

          We also observe that on the day Kerr was deposed, no

restrictions were placed on Carbone regarding the substance or




that von Hirsch was incompetent at the time of his deposition or
before trial because the doctor's report, that he pointed to in
making his case, could not serve as a basis for a competency
determination   and  a   review  of   his  deposition  testimony
demonstrated that von Hirsch was relatively coherent at times,
despite some moments of confusion and/or forgetfulness. 

     20   See also Koeppel v. Bassett, No. 08-cv-04543, 

, at *2 (D.N.J. Feb. 27, 2015) (holding that a party
objecting to a child's competency, on the belief that the child
might have been unduly influenced, "must show that the child did
not perceive the events in question or is testifying from
suggestion rather than her own recollection; mere assertion of
such concerns is not enough"); United States v. Skorniak, 

 (8th Cir. 1995) (noting that the defendant's statement
that his brother was "not competent to testify due to his mental
state . . . insufficient to overcome the presumption embodied in
Federal Rule of Evidence 601 that all witnesses are presumed
competent to testify" (internal quotation marks omitted)).


                               - 37 -
length of the deposition.     Carbone could have and did to some

extent probe Kerr's mental capacity.     That is, she posed a few

questions to Kerr about his neurological and cognitive symptoms,

and about the "ton" of medications he was taking and their impact

on his thinking.     Nonetheless, as the government rightly noted

below, Carbone, neither prior to nor at the conclusion of Kerr's

deposition, placed any objection on the record questioning or

challenging Kerr's competency because of any overt, behavioral

manifestations.    This is so, even after she had the opportunity,

for over an hour, to observe firsthand Kerr's ability to comprehend

and answer questions posed to him in real time.   See United States

v. Berrios-Rodriguez, 

 (D.P.R. 1991) ("The

failure to challenge the competence of a witness at the time his

testimony is presented, acts as a waiver to later objections of

competency."); see also Fed. R. Crim. P. 15(g) ("A party objecting

to deposition testimony or evidence must state the grounds for the

objection during the deposition.").

          Then, with Kerr's actual deposition performance in the

backdrop, Carbone never, on her own, initiated any procedural

action — think for example, a motion in limine, see Swanger, 

, at *3 — seeking to bar the admissibility of the

deposition. That is important because as the District Court noted,

"that was the reason why the deposition was taken," and if Carbone

had reason to question Kerr's capacity when deposed, we believe it


                               - 38 -
would have been reasonable for her to promptly bring that concern

to the District Court's attention.             This is particularly true when

everyone understood that Kerr was the government's key witness (in

fact Kerr was the only witness who could rebut Carbone's assertion

that    she    acted     at   all   times   with   his    consent)   and   likewise

understood that Kerr's terminal illness would likely prevent him

from being able to take the stand when trial did get underway (or

in legal lingo, make him an unavailable witness).                     It was only

after the government, months later and on the eve of trial, moved

to admit Kerr's deposition due to his severe medical deterioration

that Carbone, in her opposition to the government's motion,21 first

expressed any concerns about Kerr's competency and requested a

competency hearing to retrospectively assess Kerr's mental acumen,

and to also access his medical records.22

               Carbone    seems     to   contend   that    it   wasn't   until   she

reviewed Dr. Nisar's affidavit and (it seems) further reflected

upon Kerr's purported deposition inconsistencies that materially



       21 In
          her opposition to the government's motion, Carbone never
submitted any affidavits in support of her request for a competency
hearing, such as affidavits from her two trial witnesses who
described their perceptions of Kerr's cognitive decline and whose
testimony she highlights to partially prove Kerr's alleged
incompetence.

        We remind the gentle reader that the District Court had
       22

Kerr's medical records before it at the time it made its decision
about whether a competency hearing was needed, but that those
documents are not before us for our consideration as neither party
made them part of the appellate record.


                                         - 39 -
impactful red flags began to fly, generating questions about Kerr's

deposition competency, thus spawning the need for a hearing to

sort it all out before trial.             However, once again, we are not

persuaded.     As the government points out, Dr. Nisar's affidavit

only speaks of Kerr's cognitive decline post deposition.                        And

Carbone's assertion that we should view Dr. Nisar's affidavit in

conjunction with Kerr's deposition performance to infer possible

pre-deposition      incompetency          warranting         further      in-court

evidentiary    investigation      is    not     reasonably    supported    by   the

record, at least not by the record before us.                  Instead, when we

evaluate     Carbone's   complaints       about     Kerr's     testimony    being

"spotty" and "inconsistent" in places                —   and keep Rule 601's

straightforward admissibility guidance in mind — we determine

that,   contrary   to    her    assertions,        Kerr's    deposition    fairly

demonstrates that he was able to sufficiently comprehend and digest

relevant information, adequately process the questions asked of

him, and evince a reasonable ability to respond.                And those areas

of Kerr's deposition where he allegedly could not recall certain

information or accurately respond to certain questions are more

properly viewed as issues of credibility, not competency, best

reserved for the jury.         See Hyson, 

.

           Therefore, in sum and on the particular facts of this

case, we detect no abuse of discretion given:                  the latitude we

afford the District Court on how best to assess a witness's


                                       - 40 -
competency; Carbone's failure to sufficiently demonstrate that

"red flags" of material impact existed that warranted the special

treatment of a competency hearing, see Crosby, 

;

Rule 601's overwhelming presumption of a witness's competency, see

Fed. R. Evid. 601, and Carbone's failure to rebut that presumption,

see   von     Hirsch,        

,   at   *5;   our   reluctance   to

second-guess            a     district      court's      threshold       competency

determination, see Devin, 

; and our belief that a

reasonable person could agree with the trial judge's decision, see

United States v. McCullock, 

 (1st Cir. 2021)

(explaining that "we will find an abuse of discretion only when

left with a definite conviction that 'no reasonable person could

agree      with   the       judge's   decision'"    (quoting    United   States   v.

Cruz-Ramos, 

 (1st Cir. 2021))).23                      Accordingly,

given our conclusion, we need not consider Carbone's prejudice

argument.24


      23 We
          do hasten to add that it would not have been error had
the District Court chosen to conduct a competency hearing.
Nevertheless, we cannot say that its decision to decline Carbone's
request to do so constitutes reversible error.

      24We address a couple of other loose ends before moving
on. First, the court was not necessarily required to explicitly
deny Carbone's request for a competency hearing — as Carbone urged
at oral argument before us — because its rejection was manifest in
its decision to admit Kerr's testimony. Second, with respect to
the government not turning over Kerr's medical records, Carbone
summarily states that not "allow[ing] defense counsel access to
[them] requires reversal" given the centrality of Kerr's testimony
and the questions about his competency.     However, we deem this


                                          - 41 -
            2.    Adequacy of Cross-Examination

            Carbone alternatively claims the District Court erred in

admitting Kerr's deposition testimony because (to use legal-lingo

terminology) the reliability of that testimony was not "assured."

This is so, she says, because due to the deposition's hasty timing,

her counsel lacked an adequate opportunity to cross-examine Kerr

on important issues that surfaced only post deposition.                   That

information involved serious sexual abuse allegations against Kerr

—   allegations    which   would   have   been   critical   to   the   jury's

assessment of Kerr's credibility.           And since Kerr was the only

person who could contradict Carbone's version of events — her

insistence that she had obtained permission from Kerr to move his

assets around — the admission of the deposition prejudiced her.

In light of her counsel's inadequate preparation time and because

critical information could not be addressed, Carbone's argument

goes, she was deprived of a greater opportunity to cast doubt on

Kerr's credibility.

            The    government   first     contends   Carbone's    claim    is

waived.25   But notwithstanding waiver, the government argues that



argument waived for lack of developed argumentation. "[I]ssues
adverted to in a perfunctory manner, unaccompanied by some effort
at developed argumentation, are deemed waived." United States v.
Zannino, 

 (1st Cir. 1990). Further, as we earlier
noted, Carbone did not make Kerr's medical records part of the
appellate record here.
     25 Waived, says the government, because Carbone's isolated and

vague references to Kerr's sexual abuse allegations neither


                                   - 42 -
Carbone's claim lacks merit.              Because a record review clearly

demonstrates that Carbone, through her counsel, had an opportunity

to — and did — fully cross-examine Kerr, the reliability of Kerr's

testimony was assured in the manner our case law so establishes.26

              Before   we     tackle    the     arguments,     a     discussion      of

evidentiary fundamentals will be useful.

              "Where, as here, objections to evidentiary rulings are

preserved, review is for abuse of discretion."                     United States v.

Kilmartin, 

 (1st Cir. 2019).                        Although this

standard is deferential, it "does not render trial court decisions

impervious to scrutiny."               Ruiz-Troche   v. Pepsi Cola of P.R.

Bottling Co., 

 (1st Cir. 1998).                     We've held that

abuse of discretion sounds worse than what it really is.                   Schubert

v. Nissan Motor Corp. in U.S.A., 

 (1998).                      Rather,

it   just     means    that    "when    judicial     action    is     taken    in    a

discretionary     matter,      such    action    cannot   be   set     aside    by    a




identify the allegations in her opening brief nor describe how
they are relevant to her case, all of which runs afoul of our
well-established principle that claims "must be presented fully in
an appellate brief and not by cross-reference to claims made in
the district court." United States v. Reyes-Rivera, 

,
90 n.13 (1st Cir. 2016).    Because we see no merit to Carbone's
argument, we discuss waiver no further.
     26 Forgood measure, the government notes that because Carbone
does not separately argue that Kerr's deposition testimony was
inadmissible as hearsay to which the exception for a witness's
unavailability would apply under Rule 804(b)(1), any such claim
would be waived and nonetheless meritless.


                                       - 43 -
reviewing court unless it has a definite and firm conviction that

the    court    below   committed   a   clear    error   of    judgment    in   the

conclusion it reached upon a weighing of the relevant factors."

 (quoting In re Josephson, 

 (1st Cir. 1954)).

               If we determine that the court abused its discretion in

admitting evidence, we next ask whether that error was harmless.

See United States v. Fulmer, 

 (1st Cir. 1997).

That    question    essentially     asks    whether   the     admission    of    the

evidence       "result[ed]    in   actual    prejudice      because   it   had     a

substantial and injurious effect or influence in determining the

jury's verdict."        United States v. Shay, 

 (1st

Cir. 1995) (citation omitted).              "To sustain the verdict, the

reviewing court must be able to say with a fair degree of assurance

that the erroneous ruling did not substantially sway the jury."

Ruiz-Troche, 

.

               We can bypass the issue of waiver because Carbone's claim

fails for the same reason we found her argument about the motion

to continue the deposition lacking:             she has not shown prejudice.

Again, here's how Carbone frames her prejudice argument:                        "The

admission of the deposition prejudiced Carbone.                 Because counsel

was forced to take Kerr's deposition without adequate preparation,

critical information was not addressed and Carbone lost a greater

opportunity to cast doubt on the credibility of Kerr -- a vital

government witness."         Beyond the speculative and conclusory nature


                                     - 44 -
of Carbone's asseveration, Carbone never tells us what further

information she would have gained, or what "critical information"

she would have probed, had she been allowed to depose Kerr on June

30th (or July 15th) rather than June 24th.27    To merely maintain

without detailing or specifying how the court abused its discretion

when it admitted Kerr's deposition testimony because she was not

provided, as she puts it, a greater opportunity to cross-examine

Kerr, does not demonstrate prejudice.   See Kilmartin, 

 (explaining that if we determine that a court has abused its

discretion in admitting evidence we consider whether that error

was harmless and that "question reduces to whether admission of

this evidence 'results in actual prejudice because it had a

substantial and injurious effect or influence in determining the

jury's verdict'" (quoting Ruiz-Troche, 

)).   We espy

no abuse of discretion in the District Court's decision to admit

Kerr's deposition testimony and so we soldier on.

          C. Brown's Trial Testimony:   Motion to Exclude for Late
          Notice

          Carbone next challenges the court's admission of the

testimony of Brown, Carbone's former employee at the Chelsea


     27 We note that even though Carbone was accusing Kerr of
sexually abusing her brothers when they were children, an
allegation which if true might likely have impacted his
credibility, she never probed these allegations during Kerr's
deposition.   Nor did she delve deeply into allegations being
investigated at the time and known to her that Kerr, himself, had
pilfered money from the Y.


                              - 45 -
Community Center who the government offered as a rebuttal witness

and whose testimony provided a motive for Carbone's offenses.

            On September 29, 2021, just days before trial, Carbone

submitted   a     potential   witness     list   in   anticipation    of   her

case-in-chief that included Diana Oriole ("Oriole"), Carbone's

best friend who testified about Kerr's forgetfulness and unique

saving habits, and James Dwyer ("Dwyer"), a board member at the

Chelsea Community Center who also testified about Kerr's perceived

cognitive decline, amongst others.               The following day, after

interviewing Oriole and Dwyer, the government provided a Federal

Rule of Evidence 404(b) notice (we'll get into what that means in

a minute) to Carbone of its intention to ask questions at trial

about   Carbone's    prior    substance   use    disorder    to   establish   a

potential motive.     On October 1st, the government notified Carbone

that — after conducting additional interviews — it had learned

about Brown, who told investigators that:             she used to work with

Carbone; Carbone had stolen cash from Kerr's home safe on multiple

occasions    to     buy   prescription      pills;     she   had    purchased

prescription pills for Carbone; and Carbone previously suffered

from substance use disorder.

            Carbone filed a motion to exclude Brown's testimony on

the basis that the government's 404(b) disclosure was unreasonably

late, and the nature of Brown's testimony would require Carbone to

produce witnesses to rebut it.       The government countered that good


                                   - 46 -
cause existed to excuse its late notice because it only became

aware of Brown's existence after learning of and interviewing

Oriole and Dwyer, Carbone's prospective witnesses.                     Nonetheless,

the government represented that it would only call Brown as a

rebuttal witness if necessary.          At its final pre-trial conference,

the court denied Carbone's motion to exclude Brown's testimony.

              At trial, here's what happened.               Once the government

rested, Carbone elected to testify on her own behalf.                    During her

direct      testimony,   she    indicated    that     she   had    not   taken       any

prescription pills following her substance use counseling in 2012

until her brief relapse in the summer of 2018, when she took

several Percocet pills following a family altercation.                      She also

alleged that Kerr had instructed her to withdraw funds from his

accounts in anticipation of a pending civil lawsuit, some of which,

at Kerr's direction, she used to pay personal and family expenses,

the    rest    of    which     she   tendered    to     Kerr      in   cash.         On

cross-examination, when asked about Brown, Carbone denied ever

stealing money from Kerr's safe with Brown.                 When asked about her

prescription pill usage, she again stated that she had not taken

any pills between 2012 and 2018 and had never stolen money from

Kerr. Upon the conclusion of her case, the government called Brown

to    the    stand   over    Carbone's      objection       and   request      for    a

continuance.




                                      - 47 -
              On   the   stand,   Brown    testified   consistent    with   her

pre-trial statement to the government:             she had previously worked

as Carbone's personal assistant at the Chelsea Community Center

from sometime in 2014–15 or until late 2015–early 2016; she

observed Carbone enter Kerr's residence during that period; and

Carbone told her that she was taking money from Kerr's safe to

purchase Oxycodone and Percocet pills.             Brown also told the jury

that she had observed Carbone take prescription pills, which Brown

had purchased for Carbone with the looted cash Carbone had given

her.    At the end of her testimony, Carbone's counsel addressed the

court,      saying,   "Your   Honor,   I   would    respectfully    request   a

continuance as well to further cross-examine" Brown, which the

court denied.

              On appeal, Carbone repeats her claims that the court

erred when it allowed Brown to testify because her counsel did not

receive reasonable notice, under Rule 404(b)28 and Local Rule

117.1(a)(4)(B),29 that the government intended to call Brown to



       As we'll further discuss momentarily, Rule 404(b) generally
       28

makes inadmissible most character evidence regarding prior bad
acts in order to show that a defendant acted in conformity
therewith.    See Fed. R. Evid. 404(b).       But it does allow
admissibility for other permitted purposes provided the defendant
receives reasonable notice of the evidence to be offered before
trial or during trial for good cause shown. 

       In relevant part, Local Rule 117.1(a)(4)(B) provides that,
       29

"[a]t the initial pretrial conference the district judge
must[] . . . unless the declination procedure provided by [Local
Rule] 116.6 has previously been invoked, order the government to


                                    - 48 -
testify about Carbone's prior bad acts.              At a minimum, Carbone

says, the court should have granted her a continuance to prepare

for Brown's testimony because the government disclosed Brown's

intended testimony only four days before trial began. In Carbone's

opinion, adequate preparation would have required her counsel to

not only investigate Brown to assess her credibility, but also to

explore other ways of rebutting Brown's damaging testimony.                  Yet,

the time constraints, she says, prevented her counsel from doing

so. Finally, Carbone claims that the court's error was prejudicial

and    not    harmless    because    the    government   presented    no   other

first-hand evidence that she had previously stolen money from Kerr,

and such evidence was likely used as propensity evidence by the

jury.

              The government says we should affirm, contending the

court's denial of Carbone's motion was a proper exercise of the

court's      discretion    because    the    circumstances   surrounding     the

government's      discovery    and    disclosure    of   Brown    supports   the

conclusion that its 404(b) notice was reasonable.                It also states

that    its   notice     satisfied    Rule    404(b)(3),   which    allows   the

government to provide notice of prior-bad-acts evidence during




disclose to the defendant no later than 21 days before the trial
date: . . . a general description (including the approximate date,
time and place) of any crime, wrong, or act the government proposes
to use pursuant to Fed. R. Evid. 404(b)."          L.R., D. Mass.
117.1(a)(4)(B).


                                      - 49 -
trial if good cause exists, which it did here.                  Finally, the

government argues that Carbone's Local Rule argument is misplaced

because Local Rule 117.1(a)(4)(B) is modifiable in the interests

of justice, which the court appeared to have done here "as the

pretrial order the court issued did not include the requirement

that the government provide any Rule 404(b) disclosures to the

defense no later than 21 days before the trial date."30

            Before we dive into the arguments, a brief discussion of

Rule 404(b) will be useful.            As we know, Rule 404(b) prohibits

using "[e]vidence of any other crime, wrong, or act . . . to prove

a person's character in order to show that on a particular occasion

the   person    acted     in   accordance    with   [it]."    Fed.    R.   Evid.

404(b)(1).      Essentially, the Rule prevents the introduction of

propensity evidence.           In a criminal matter it also obligates the

government to provide reasonable notice of its intent to introduce

evidence of a defendant's prior crimes, wrongs, or other bad acts

"before trial -- or in any form during trial if the court, for

good cause, excuses lack of pretrial notice."                  Fed. R. Evid.

404(b)(3)(C).       Beyond this, the Rule does not impose a specific

timeframe      on   the    government,      although   the   Rule's   advisory




      30More specifically, the government cites to Local Rule
117.1(b), which states that "[t]he district judge who will preside
at trial may, upon motion of a party or on the judge's own
initiative, modify any of the requirements of subsection (a) of
this rule in the interests of justice." L.R., D. Mass 117.1(b).


                                      - 50 -
committee notes state that "what constitutes a reasonable request

or disclosure will depend largely on the circumstances of each

case."      Fed. R. Evid. 404(b) advisory committee's note to 1991

amendments.

             A survey of our case law suggests that our circuit has

not   yet    had   an    occasion      to    squarely   consider      the   specific

circumstances      under       which   the   timeliness    of   the   government's

404(b) disclosure would be deemed reasonable.                   However, law from

our sister circuits provides us with well-reasoned guidance for

interpreting the Rule.           See United States v. Watson, 

,

465–66   (D.C.     Cir.    2005)       (finding   no    reversible     error   where

defendant      did       not      demonstrate      prejudice       flowing         from

forty-eight-hour 404(b) notice); see also United States v. White,

, 984–85 (8th Cir. 2016) (finding the government's

one-week 404(b) notice reasonable under the circumstances); United

States v. Preciado, 

, 745 (8th Cir. 2003) (concluding

that the government's one-week 404(b) notice was reasonable and

timely under the circumstances); United States v. Blount, 

 (7th Cir. 2007) (finding that the government's 404(b)

notice was timely when it occurred a week before trial); United

States v. Perez-Tosta, 

, 1561–62 (11th Cir. 1994)

(concluding    that      disclosure      was   timely    and    holding     that   the

following factors are determinative in considering a disclosure's

reasonableness:         (1) when the government could have learned of the


                                         - 51 -
availability of the witness; (2) the extent of prejudice to the

opponent of the evidence from a lack of time to prepare; and (3)

the significance of the evidence to the government's case).                   We

review this preserved challenge for abuse of discretion.                  United

States v. Quesada-Bonilla, 

 (1st Cir. 1991).

             Upon   review,   we    detect    no   error    stemming   from   the

District Court's denial of Carbone's motion to exclude because the

record     indicates   that   the   government's     disclosure     of   Brown's

prior-bad-acts testimony was reasonable under the circumstances.31

Out of the box, there is nothing in the record suggesting the

government intentionally withheld information from Carbone or was

negligent or dilatory in conducting its pre-trial investigation,

a factor courts have looked to when considering whether the

government's 404(b) disclosure was reasonable.               See United States

v. Osarenkhoe, 

 (2d Cir. 2011) (finding that

the   appellant     failed    to    demonstrate      that    the   government's

disclosure was not "reasonable under Rule 404(b)" because she did

not   show     "that   the    government       was   purposely      withholding

information from her or failed to discover the information due to

its own negligence in conducting its pre-trial investigation").


      31In reaching our conclusion, we also hold that Carbone's
Local Rule argument fails because as the government rightly points
out, it appears the court implicitly modified the Rule in the
interests of justice, which it was permitted to do, when it ruled
Brown's testimony admissible. We detect no abuse of discretion in
the court's decision to do so for the reasons outlined below.


                                     - 52 -
Instead, the record reflects that the government only first learned

about Brown's existence after interviewing Carbone's potential

witnesses.      And importantly, the record also reflects that the

government, once it had spoken with Brown, promptly notified

Carbone of its intention to call her to testify about Carbone's

alleged prior bad acts.        Under similar circumstances, courts have

found the government's 404(b) disclosure to be reasonable.                      See

Preciado, 336 F.3d at 745 (finding the government's 404(b) notice

reasonable when it provided notice as soon as the prosecution

became aware of the 404(b) evidence); see also United States v.

Valenti,   

    (2d   Cir.   1995)   (holding    that     the

government's     404(b)    notice     was    reasonable    when   it    provided

documents to defendants the very day it obtained them); United

States v. Green, 

, 701–02 (8th Cir. 2001) (concluding

that the government's 404(b) notice was reasonable because it

provided notice the same day it learned about the evidence);

Blount, 

.             Accordingly, we see no error in the

court's    determination      that    the   government's   404(b)      notice    to

Carbone was reasonable and as such, see no abuse of discretion in

the District Court's refusal to exclude Brown's testimony based on

timeliness concerns.32


     32 Alternatively,Carbone argues that the court should have
granted her a continuance before allowing Brown's testimony, and
that it abused its discretion when it failed to do so. In her
briefing, Brown describes a litany of activities she would have


                                      - 53 -
            D. Brown's Trial Testimony:          Admission Over Rule 404(b)
            Objection

            Carbone also challenges the evidentiary relevance of

Brown's testimony and thus the correctness of the court's decision

admitting it.      In her opinion, Brown's testimony was propensity

evidence    irrelevant   to     any   permissible     Rule   404(b)   purpose.

Despite    the   government's    argument      that   Brown's   testimony   was

relevant to establish a motive for her crimes, Carbone says Brown's

testimony had to be tied to evidence that she illegally purchased

prescription pills during the relevant time period of her offenses,

and such evidence wasn't produced because there was none indicating

she had purchased pills between 2017–18 (the dates of her charged



undertaken if her request had been granted, i.e., engage in a
credibility assessment of Brown, search for new witnesses to rebut
Brown's accusations, evaluate the possibility of hiring an expert
witness "to challenge the government's anticipated contention that
Carbone stole the money from Kerr to fuel an expensive daily drug
habit." Yet, fatal to her claim and unlike her briefing on her
continuance request relative to Kerr's deposition, she fails to
adequately discuss (beyond a cursory recitation of woulda-done's)
our relevant standard for reviewing the denial of a continuance
request or evaluate her claims of error in light of those factors.
(To remind, in evaluating a continuance denial, we scrutinize:
"the reasons contemporaneously presented in support of the
request, the amount of time needed for effective preparation, the
complexity of the case, the extent of inconvenience to others if
a continuance is granted, and the likelihood of injustice or unfair
prejudice attributable to the denial of a continuance." United
States v. Rodríguez-Durán, 

 (1st Cir. 2007)). As
a result of this omission, we won't drone on except to say "we see
no reason to abandon the settled appellate rule that issues
adverted to in a perfunctory manner, unaccompanied by some effort
at developed argumentation, are deemed waived." Zannino, 

. Accordingly, we consider Carbone's continuance argument
waived.


                                      - 54 -
offenses).       Therefore, in the absence of such evidence, Carbone

asserts,      Brown's    testimony      had    no    probative      value.    Carbone

continues, even if Brown's testimony could be deemed marginally

relevant, it was too unfairly prejudicial to be admitted.

              The   government       fails    to    address     Carbone's    specific

timeframe argument and pivots instead to a discussion of why

Brown's testimony possessed special relevance (a concept we'll

explain shortly) under Rule 404(b).                  This evidence was specially

relevant, it says, because Carbone's defense at trial was that

Kerr    instructed      her    to    withdraw      money     from   his   accounts   in

anticipation of a forthcoming civil lawsuit.                        As a part of her

argument, Carbone emphasized that the government could not locate

the stolen funds she had withdrawn from her Citizens Bank account

between      August     2017   and    August       2018.33      Therefore,    in     the

government's view, Brown's testimony was specially relevant to

establish a motive for Carbone's crime.




       33   Specifically, during her closing, Carbone's counsel stated:

              If [Carbone] had $310,000 they would have
              found it. They didn't. It's not there. She
              doesn't have that. She never had it. She was
              giving   it   to  [Kerr].      It's   entirely
              consistent, however, with [Kerr's] entire life
              in the years leading up to the period of this
              indictment, right. He wanted to draw down his
              annuity. He wanted to keep his cash near him.
              That is how he — that was his financial
              philosophy. Keep your cash close.


                                        - 55 -
            As    we   have    explained,      Rule   404(b)   prohibits   the

prosecution from introducing "evidence that is extrinsic to the

crime charged" solely "for the purpose of showing villainous

propensity."      United States v. Roszkowski, 

 (1st

Cir. 2012).      To admit evidence of prior bad acts, a district court

must find that the evidence meets two tests.             First, the evidence

must have "'special relevance' to an issue in the case such as

intent or knowledge, and must not include 'bad character or

propensity as a necessary link in the inferential chain.'"              United

States v. Varoudakis, 

 (1st Cir. 2000) (citing

United States v. Frankhauser, 

 (1st Cir. 1996)).

Specially relevant evidence is permitted when it is admitted "for

another purpose, such as proving motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake, or

lack   of   accident."         Fed.    R.    Evid.    404(b)(2).     "If   the

prior-bad-acts      evidence    is    relevant    only   for   the   forbidden

propensity inference, then the evidence is inadmissible under Rule

404(b)(1) and the inquiry ends."            United States v. García-Sierra,

 (1st Cir. 2021).             Otherwise, we advance to step

two, the application of Rule 403, requiring that the probative

value of the evidence is substantially outweighed by the danger of

unfair prejudice.       Id.; see also United States v. Sebaggala, 

 (1st Cir. 2001) (noting that Rule 404(b) "incorporates

sub silentio the prophylaxis of Federal Rule of Evidence 403").


                                      - 56 -
That said, we have cautioned that when prior-bad-acts evidence is

offered to prove something relevant to the crime charged such as

a defendant's motive for the crime, "courts must be on guard to

prevent the motive label from being used to smuggle forbidden

evidence of propensity to the jury."    Varoudakis, 

(citation omitted).   "Where, as here, objections to other-acts

evidence have been preserved, our review of rulings admitting or

excluding such evidence is for abuse of discretion." United States

v. Sabean, 

 (1st Cir. 2018); see also United States

v. Gemma, 

 (1st Cir. 2016).      We'll address each

step in turn.

          1. Special Relevance

          We first ask whether Brown's testimony passes 404(b)'s

initial special relevancy test.    We answer yes because, as the

District Court determined, the record shows that Brown's testimony

was offered not to show that Brown had a propensity to steal or

take opioids, but rather to provide a motive, aka a reason, for

Carbone's theft:   Carbone needed money to fund the substance use

disorder Brown testified about.   Carbone resists this conclusion

by leaning on her timeframe argument.    Here's how she frames it:

"In the absence of evidence that Carbone engaged in the ongoing

and significant illicit use of drugs and the illicit purchase of

drugs between 2017 and 2018, testimony that she purloined funds




                              - 57 -
from   Kerr    to    subsidize   a    drug    habit   prior    to    that   time   is

irrelevant."

              But Carbone acknowledged during her testimony that she

suffered      from   substance   use    disorder      from    2012   through   2014

following      four     major    surgeries      which    necessitated        opioid

pain-management treatment.           And she further acknowledged resorting

to Percocet consumption in 2018 when she was processing and

internalizing information she says she had learned about the

circumstances of her childhood.              Here's what she described:

              [T]he day before my bridal shower, I had a
              pill bottle in my medicine cabinet with four
              Percocet in it, and I took two the day before
              the bridal shower, and just not wanting to
              feel anything that had happened, that I found
              out, or anything, reliving everything that
              happened to me, and then the morning of the
              bridal shower, I took the other two.

Even though Carbone testified that the 2018 ingestion was the only

slip after 2012 in an otherwise spotless addiction recovery,

Brown's testimony, if believed, directly contradicted Carbone's

account of pill purchasing and usage during the 2014–16 time period

when the two worked together.           Given the commonly known realities

of addiction and the frequency of relapse as aptly demonstrated by

Carbone's own resort to drugs when under duress, the court had

ample reason to conclude that Brown's testimony supported the

government's motive theory for why Carbone may have stolen money

from Kerr.          And Carbone gives us no authority supporting her



                                       - 58 -
assertion that this prior-bad-acts evidence was too remote to the

charged time period to be relevant. Her contention is particularly

dubious since Brown's testimony gave rise to a reasonable inference

that Carbone may well have been using drugs when the crimes

occurred, and therefore, still in need of cash.   The fact that the

funds could never be located — a fact that Carbone harped on in

her defense — also made the evidence especially probative.

          Therefore, like the District Court, we conclude that

Brown's testimony was specially relevant. See, e.g., United States

v. DeCicco, 

 (1st Cir. 2004) (overturning the

district court's exclusion of a witness's testimony when the

government did not seek it for propensity evidence but rather to

"establish the tax liabilities in order to show for what purpose

the fraudulently obtained insurance proceeds were intended" —

"[t]herefore, the motive of the charged mail fraud can be properly

alleged to have been pecuniary gain, and therefore, the evidence

was improperly excluded"); Sebaggala, 256 F.3d at 67–68 (finding

no abuse of discretion when the district court admitted 404(b)

evidence because "the stolen and altered travelers' checks were

probative of motive on the false statement counts; their existence

furnished a cogent reason for the appellant to lie to the customs

inspectors about the value of the monetary instruments in his

possession"); United States v. Appolon, 

 (1st. Cir.

2012) ("Daniel apparently had no legitimate source of disposable


                              - 59 -
income.   Therefore, evidence that he used money derived from

appellants'    scheme   to   buy   'marijuana,    clothes,    vehicles,   and

firearms' had special relevance because it established his motive

for participating in the scheme — his need to finance a lavish

lifestyle."); United States v. Cole, 

, 155–56 (4th

Cir.   2011)   (evidence     of    defendant's    "lavish    spending"    was

probative of his motive for violating tax laws).             Accordingly, we

proceed to step two.

          2. Probative Value v. Unfair Prejudice

          Though Brown's testimony was probative of Carbone's

motive, the evidence must still clear the strictures of Rule 403,

which provides that the "court may exclude relevant evidence if

its probative value is substantially outweighed by a danger of,"

among other concerns, "unfair prejudice."          Fed. R. Evid. 403; see

also Varoudakis, 

.            "Unfair prejudice 'speaks to

the capacity of some concededly relevant evidence to lure the

factfinder into declaring guilt on a ground different from proof

specific to the offense charged.'"           United States v. DiRosa, 

 (1st Cir. 2014) (quoting Old Chief v. United States,

 (1997)).         We have held that a district court's

discretion is especially broad, see Varoudakis, 

,

and therefore "only rarely -- and in extraordinarily compelling

circumstances -- will we, from the vista of a cold appellate

record, reverse a district court's on-the-spot judgment concerning


                                    - 60 -
the relative weighing of probative value and unfair effect,"

United States v. Doe, 

 (1st Cir. 2013) (cleaned

up) (citation omitted).

               Carbone does not accuse the District Court of failing to

engage in Rule 403's probative-versus-prejudice balancing test.

But she contends that even if Brown's testimony had some marginal

relevance, any probative value it may have had was substantially

outweighed by the dangers of its unfair prejudice to the case.             We

cannot agree.       Despite the risks of what substance use disorder

might inherently imply relative to issues of bad character or

propensity, Brown's testimony was nonetheless highly probative of

what may have motivated Carbone's larcenous conduct.                   And to

repeat, as a part of her defense Carbone stressed to the jury that

she was innocent, in part, because the government could not locate

the   stolen     funds.    Brown's     testimony   then,   clearly   rebutted

Carbone's claim of innocence by providing a possible explanation

for   the       funds'    miraculous     disappearance.        Under    these

circumstances, Brown's testimony, as the District Court reasonably

determined, was more probative than prejudicial and the court did

not abuse its discretion in admitting it.34


      34 The
           government alternatively argues that Brown's testimony
was admissible for impeachment purposes, specifically to impeach
Carbone's statement that other than her brief rendezvous with
Percocet pills in 2018 she had not abused drugs since 2012. See
United States v. Sotomayor-Vázquez, 

 (1st Cir. 2001)
(explaining that when a defendant denies engaging in conduct


                                     - 61 -
          Therefore, considering the totality of the circumstances

and deference we afford a district court's on-the-spot judgment,

for the reasons we've explained, we hold that the District Court

did not abuse its discretion in admitting Brown's testimony.

          III. FINAL WORDS

          In sum, Carbone's convictions are affirmed.




material to the offense on direct examination, the government may
offer testimony to impeach that denial); see also United States v.
Catalán-Roman, 

, 470 (1st Cir. 2009) (explaining that
Sotomayor-Vázquez's   holding    is   applicable    "despite   the
prohibitions of Rule 404(b)"). The District Court did not rely on
this backup argument, and since we agree with the government's
primary one, we say no more.


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