United States Court of Appeals For the First Circuit

No. 22-1654

UNITED STATES OF AMERICA,

Appellee,

v.

MIGUEL SANTANA-AVILÉS,

Defendant, Appellant.

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

[Hon. Aida M. Delgado-Colón, U.S. District Judge]

Before

Kayatta, Selya, and Rikelman, Circuit Judges.

Richard B. Klibaner and Klibaner & Sabino on brief for appellant. W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá- Almonte, Assistant United States Attorney, Chief, Appellate Division, and Gregory B. Conner, Assistant United States Attorney, on brief for appellee.

October 22, 2024 SELYA, Circuit Judge. In this appeal,

defendant-appellant Miguel Santana-Avilés seeks to set aside his

conviction and sentence for assault of a correctional officer.

See

(a)(1), (b). That conviction, he insists, is

fatally flawed because it resulted from erroneous evidentiary

rulings. Concluding, as we do, that the appellant's reach exceeds

his grasp, we affirm his conviction and sentence.

I

We briefly rehearse the relevant facts and travel of the

case. "Because these appeals do not present challenges to the

sufficiency of the evidence but, rather, deal with other claims of

error, we rehearse 'the facts in a balanced manner in which we

objectively view the evidence of record.'" United States v.

Rodriguez,

(1st Cir. 2024) (quoting United States

v. Amador-Huggins,

(1st Cir. 2015)).

A

Witnesses for the prosecution testified as to the

following facts. Correctional Officer Efrén Rosario was working

in the Metropolitan Detention Center in Guaynabo, Puerto Rico (MDC

Guaynabo). On August 20, 2020, he conducted an inmate count with

the assistance of officer-in-training Marianés Santana. This

count required the officers to confirm that each inmate was in his

assigned cell and then lock the cell door.

- 2 - When Officers Rosario and Santana arrived at the cell

shared by the appellant, Héctor Maldonado-Maldonado (Maldonado),

and a third roommate, only the appellant was present. Officer

Rosario searched the cell and found an extra pillow on Maldonado's

bed, which violated prison policy. As Officer Rosario was removing

the extra pillow, Maldonado rushed into the cell. He complained

that "you're always putting your foot in the way of the inmate,

[expletive deleted]."

Anger morphed into violence when Maldonado punched

Officer Rosario in the face. The appellant then grabbed Officer

Rosario from behind, allowing Maldonado to continue beating him.

Stirring the pot further, the appellant encouraged the assault by

twice saying "Hit him."

As the scuffle continued, Officers Rosario and Santana

were able to press their emergency buttons, summoning

reinforcements to the scene. Officer David Figueroa was one of

two officers to arrive first. He pepper-sprayed both the appellant

and Maldonado and then restrained the appellant against a wall.

Officer Figueroa later testified that the appellant — after being

pepper-sprayed — stated in a "normal tone": "I didn't do nothing"

and "It wasn't me."

In due course, other officers arrived. Both the

appellant and Maldonado were restrained and taken to the prison's

infirmary.

- 3 - B

Once the dust had settled, the authorities charged both

the appellant and Maldonado with assaulting, resisting, or

impeding prison officers. See

(a)(1), (b). A

federal grand jury eventually indicted both men on this charge.

Maldonado entered into a plea agreement, while the appellant

maintained his innocence and proceeded to trial.

At trial, two evidentiary disputes arose that are

relevant here. To begin, the appellant did not testify but sought

to introduce his statements that "I didn't do nothing" and "[i]t

wasn't me." The government sought to exclude these statements as

inadmissible hearsay, see Fed. R. Evid. 802, while the appellant

sought to justify their introduction as excited utterances, see

(2). The district court sustained the government's

objection and refused to admit the statements.

The second evidentiary dispute concerned an email

explaining the lack of video evidence. Although there was a video

camera positioned to show the interior of the appellant's cell, no

video of the assault was recorded. To explain this gap, a prison

technician from MDC Guaynabo, Norman Rivera, testified that MDC

Guaynabo had updated its security camera recording system in the

summer of 2020. Rivera had prepared a report about this update in

2021. This update led to a year's worth of problems with the video

system, including "crashes" due to incompatibilities between the

- 4 - cameras and the computer system used to store security footage.

Cameras outside the unit in question, however, were working that

day, and video was recorded from those cameras.

Following the appellant's cross-examination of Rivera,

the government sought to introduce an email from Rivera summarizing

the relevant problems with the video system from October of 2020.

It argued that the cross-examination suggested either fabrication

or recent improper motive. See Fed. R. Evid. 801(d)(1)(B)(i).

Over the appellant's objection, the district court admitted the

email into evidence.

The government presented five witnesses before it

rested. The defense presented none. The jury found the appellant

guilty of "aiding and abetting, knowingly . . . forcibly

assault[ing], imped[ing], intimidat[ing], or interfer[ing] with an

officer of the United States while engaged in or on account of the

performance of official duties." The court sentenced the appellant

to an eighty-seven-month term of immurement. This timely appeal

followed.

II

We have jurisdiction over this appeal pursuant to

. The district court had subject matter jurisdiction

over the original prosecution pursuant to

.

When objections to the district court's evidentiary

rulings are preserved for appeal, those objections are ordinarily

- 5 - reviewed for abuse of discretion. See United States v. Hatch,

(1st Cir. 2008). We will not find an abuse of

discretion unless "a relevant factor deserving of significant

weight is overlooked," "an improper factor is accorded significant

weight," or there is "a palpable error of judgment in calibrating

the decisional scales." United States v. Nguyen,

(1st Cir. 2008) (quoting United States v. Roberts,

(1st Cir. 1992)). "Abuse of discretion is not a monolithic

standard of review." United States v. Soto-Villar,

(1st Cir. 2022). "Under this rubric, 'we afford de novo review

to the [district] court's interpretation and application of [law],

assay the court's factfinding for clear error, and evaluate its

judgment calls for abuse of discretion.'"

(quoting United

States v. Ruiz-Huertas,

(1st Cir. 2015)).

Not every error in the admission or rejection of

proffered evidence demands a new trial. As long as "it is highly

probable that the error did not contribute to the verdict," the

verdict will not be overturned. United States v. Abbas,

(1st Cir. 2024) (quoting United States v. Galíndez,

(1st Cir. 2021)).

III

The appellant first challenges the ruling excluding his

statements that "I didn't do nothing" and "[i]t wasn't me." This

ruling, he says, constituted an abuse of discretion. In his view,

- 6 - these statements fall under an exception to the hearsay rule for

excited utterances. See Fed. R. Evid. 803(2). As explained below,

we find no reversible error.

To qualify as an excited utterance, a statement must

satisfy two requirements: first, it must relate to a startling

event; and second, it must be made when the declarant is still

under stress from the startling event. See

In the case at hand, the district court found that the

proffered statements did not comprise excited utterances because

they did "not relate directly to the startling event." This

finding was based on the premise that the statements were not

specific to either the beating or "the incident of the contraband."

We deem this assessment problematic. Although — as the district

court noted — the statements did not describe the specific

incident, that is not a requirement for an excited utterance. See

Bemis v. Edwards,

, 1372 n.1 (9th Cir. 1995)

(explaining that even though "the subject matter of an excited

utterance is frequently a description of the 'startling event,'

the statement need only 'relat[e] to' the startling event."

(alteration in original) (quoting Fed. R. Evid. 803(2))). As the

appellant points out, it seems unlikely that — moments after being

pepper-sprayed and while being pinned to a wall — a prisoner would

be thinking at all about his cellmate's contraband pillow. Here,

moreover, there are no facts in the record suggesting that the

- 7 - pillow was a continuing focal point of the incident. Fairly

viewed, then, the circumstances indicate that the statements were

about the physical altercation. We thus regard the district

court's conclusion concerning the first excited utterance

criterion as dubious.

Of course, the district court also concluded that the

appellant was not under the stress of the startling event. The

court identified two factors in support of this conclusion. First,

it relied on the officers' testimony to find that the appellant

had a "calm" demeanor and was not agitated. In our view, this

finding rests on shaky ground: after all, the appellant had just

been pepper-sprayed and was being pinned to a wall. What is more,

the scene was swarming with guards: Officer Figueroa's

uncontradicted testimony reflects that many officers arrived at

the cell within seconds of his own arrival. Although the district

court was entitled to credit Officer Figueroa's testimony about

the appellant's demeanor, see Deguio v. United States,

(1st Cir. 1990), the objective evidence of the stressful

situation might well have overwhelmed the officer's subjective

assessment of the appellant's demeanor, see United States v.

Nieves-Díaz,

, 7 n.2 (1st Cir. 2024) ("[A factual]

finding is 'clearly erroneous' when although there is evidence to

support it, the reviewing court on the entire evidence is left

with the definite and firm conviction that a mistake has been

- 8 - committed." (quoting In re The Bible Speaks,

(1st Cir. 1989) (alteration in original))).

Second, the district court held that the appellant had

time to reflect before making the statements as evinced by the

statements' self-serving nature. Therefore — the district court

reasoned — the appellant was not under the stress of the event.

We agree that the self-serving nature of the statement is highly

relevant to the question of its admissibility. See text infra.

But we hesitate to agree that this fact indicates that the

appellant was not under the stress of the event.

Importantly, all of the relevant events occurred within

a matter of minutes — and the appellant made the statements while

still restrained against a wall by Officer Figueroa. This is well

within the customary parameters for what courts consider to be

excited utterances. See United States v. Taveras,

(1st Cir. 2004) ("The time lapse in most excited utterance

cases is usually a few seconds . . . or a few minutes.").

The government rejoins that "[w]here incriminating

evidence is discovered in one's possession, it requires only the

briefest reflection to conclude that a denial and plea of ignorance

is the best strategy." United States v. Sewell,

(8th Cir. 1996). The district court agreed that the self-serving

nature of the statements indicated time to reflect because the

declarant would understand the "legal ramifications" of his

- 9 - statement. United States v. Brito,

(1st Cir.

2005). But the portions of Brito relied upon by the district court

were related to Brito's Confrontation Clause issue. See

They

are not dispositive as to whether a statement should be admitted

as an excited utterance under the rules of evidence. See

. For these reasons, we conclude that here, too, the district

court's analysis was less than compelling.

Notwithstanding these doubts, abuse of discretion is a

high bar, and we are not sure that the exclusion of the statements

reaches it. Here, however, we need not decide whether an abuse of

discretion occurred.

Even if the district court's ruling crossed the line

into abuse — a question that we need not resolve — any such error

was harmless. Put another way, any such error "did not

substantially sway the jury's verdict" and, therefore, it does not

undermine the verdict. United States v. Soler-Montalvo,

, 19 (1st Cir. 2022) (quoting United States v. Rivera-

Carrasquillo,

(1st Cir. 2019)). After all, there

is ample evidence in the record to support the appellant's

conviction: the record shows that the statements were in direct

contradiction to the testimony of several officers. And the

statements' conclusory and self-serving nature — although not

necessarily vitiating admissibility — suggests that the statements

- 10 - would have been of such little probative weight that their

admission would have had no effect on the outcome of the trial.

IV

This brings us to Rivera's October 2020 email regarding

the problems with the prison's video system. The appellant

contends that this email was improperly admitted under hearsay

principles.

Some background is useful. The government sought the

admission of the email under Rule 801(d)(1)(B) of the Federal Rules

of Evidence, which provides that a statement is not hearsay if it

"is consistent with the declarant's testimony and is offered: (i)

to rebut an express or implied charge that the declarant recently

fabricated it or acted from a recent improper influence or motive

in so testifying; or (ii) to rehabilitate the declarant's

credibility as a witness when attacked on another ground."1 The

district court allowed the email to be introduced over the

appellant's objection.

1The district court admitted the email under both Rule 801(d)(1)(B)(i) and (ii). The government's argument at trial and the district court's oral ruling regarding admission combine to make clear that the appellant's credibility attack drew its essence from a charge of fabrication or improper motive. There was no discussion of a collateral attack or inconsistency that might engage the gears of Rule 801(d)(1)(B)(ii). See United States v. Portillo,

(5th Cir. 2020). Our analysis, therefore, focuses on Rule 801(d)(1)(B)(i).

- 11 - We hold that the admission of the email was not an abuse

of discretion. In conducting the Rule 801(d)(1)(B)(i) inquiry,

"we consider whether there is 'some degree of fit between the

alleged fabrication and the prior statement.'" Lech v. von Goeler,

(1st Cir. 2024) (quoting United States v. Chiu,

(1st Cir. 2022)). "[A] charge of recent fabrication

does not have to be 'expressly made,'" but there must be "'specific

questions' during the opposing party's examination 'that suggest

recent fabrication or bias.'"

(quoting United States v.

Lozada-Rivera,

(1st Cir. 1999)). The general

rule is "that a prior consistent statement introduced to rebut a

charge of recent fabrication or improper influence or motive [is]

admissible if the statement had been made before the alleged

fabrication, influence, or motive came into being, but it [is]

inadmissible if made afterwards." Tome v. United States,

(1995).

In laying the foundation for the admission of this

evidence, the government suggests that the appellant indicated

through argument and cross-examination that the absence of the

video evidence was the result of some improper conduct or that its

absence was suspicious. The record bears out the government's

suggestion.

The cross-examination of Rivera (especially when viewed

in light of the record as a whole) was designed to invite the jury

- 12 - to believe that some nefarious conduct was hiding behind a technical

error. For example, the cross-examination highlighted the absence

of any complaint about the computers that day. In addition, defense

counsel asked Rivera, "[W]hen you prepared your report, do you

remember writing in the report that . . . the cameras in unit 1-B

were compatible with the system being used at that time with the

cameras?" Defense counsel claimed that this question referred to

compatibility at the time of the report in 2021. But the district

court rejected this interpretation of the evidence, noting that the

phrasing and context of the question gave the impression that it

referred to the time of the crime. That would, of course,

contradict the witness's other testimony.

The appellant responds that the cross-examination was

insufficient to "open the door" to the admission of the email.

Lozada-Rivera,

. In support, he cites our decision

in Lozada-Rivera. But this case is at a far remove from

Lozada-Rivera, in which the court observed that the

cross-examination was both "remarkable . . . for its brevity" and

"meandering"; that the alleged improper motive was suggested only

through "weak innuendo"; and that the admitted document was "highly

prejudicial."

.

Here — as the district court supportably found — the

appellant commingled technological concepts and chronological

events in an attempt to give the impression that the witness had

- 13 - fabricated his testimony. What is more, this was a central theory

of the defense. The appellant's brief describes the absence of the

video, "which would have allowed the jury an objective view of what

had occurred," as one of the three main pillars of the defense.

In all events, the email only served to confirm the

reason for the missing video. It did not change the fact of its

absence. It follows inexorably that the admission of the email

could only be prejudicial to the appellant if he is suggesting

fabrication or an improper motive for the testimony regarding the

video's absence. Thus, it was well within the district court's

broad discretion to admit the email to rebut these implicit charges.

In a footnote to his brief, the appellant suggests that

the email does not satisfy the requirement that the prior statement

predate any motivation to lie. See Tome,

. This

suggestion rests on a porous foundation: the appellant says that

the email was sent in October of 2022 (after Rivera's declaration

for the proceedings below was signed in December of 2021). But the

email was in fact written in October of 2020 — well before the

declaration was signed. Consequently, this argument collapses of

its own weight.

To sum up, we hold that it was not an abuse of discretion

for the district court to admit the challenged email under Rule

801(d)(1)(B)(i). The court reasonably found that the appellant

was attempting to imply fabrication and recent improper motive.

- 14 - Accordingly, the email was properly admitted to rebut this

implication.

V

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

the judgment of the district court is

Affirmed.

- 15 -