United States v. Paredes
U.S. Court of Appeals for the First Circuit
United States v. Paredes
Opinion
Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 23-1948
UNITED STATES OF AMERICA,
Appellee,
v.
ADIANGEL PAREDES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Timothy S. Hillman, U.S. District Judge]
Before
Barron, Chief Judge,
Howard and Montecalvo, Circuit Judges.
Jean C. LaRocque, with whom Shea and LaRocque, LLP, was on
brief, for appellant.
Mark T. Quinlivan, Assistant U.S. Attorney, with whom Leah B.
Foley, United States Attorney, was on brief, for appellee.
October 24, 2025
MONTECALVO, Circuit Judge. Defendant Adiangel Paredes
appeals from his conviction following a jury trial, of one count
of conspiracy to distribute and to possess with intent to
distribute one kilogram or more of heroin, 400 grams or more of
fentanyl, and 500 grams or more of cocaine in violation of 21
U.S.C. § 846. Paredes now argues that, at trial, (1) the district
court erroneously permitted testimony about the meaning of various
telephone calls and text messages admitted into evidence, and
(2) the evidence presented varied from the allegations contained
in the indictment. For the reasons that follow, we are not
persuaded by either argument and, accordingly, affirm.
I. Background
We recite the facts in "the light most favorable to the
verdicts being appealed." United States v. Mangual-Santiago, 562
F.3d 411, 418(1st Cir. 2009) (citing United States v. Sanchez-Badillo,540 F.3d 24, 27
(1st Cir. 2008)). In
September 2018, the Boston Strike Force of the Federal Bureau of
Investigation ("FBI") began investigating an alleged drug
trafficking organization ("DTO") operating in Fitchburg,
Massachusetts. The FBI identified Anthony Baez and another
individual who later became a confidential witness ("CW-6") as the
leaders of the DTO. FBI agents worked with two other confidential
witnesses to arrange drug purchases (referred to as "controlled
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purchases") from Baez and CW-6, purchasing increasingly larger
amounts of drugs.
During the investigation, the FBI obtained wiretaps on
telephones belonging to several individuals involved in the DTO,
namely, Baez, Pablo Vidarte Hernandez, CW-6, and Paredes. The FBI
identified Paredes after intercepting a telephone call between
Baez and Vidarte. During that telephone call, Baez asked for the
price of cocaine, and, after hanging up, Vidarte immediately called
a telephone number later connected to Paredes. Following that
call, Vidarte immediately called Baez back and relayed the
requested prices.
Over the course of their investigation -- through
telephone calls and text messages between Paredes, confidential
witnesses, and other members of the DTO -- FBI agents connected
Paredes to several drug sales, including sales of cocaine, heroin,
and fentanyl. As a general matter, the heroin1 transactions that
the FBI identified followed a pattern: (1) CW-6 would call Vidarte
to order drugs, (2) Vidarte would call Paredes to arrange for
Paredes to deliver the drugs to Vidarte, and (3) Vidarte would
call CW-6 to confirm the pick-up arrangements.
1 While confidential witnesses arranged to purchase heroin
from the DTO, laboratory tests revealed that the purchased
substances contained a mixture of heroin and fentanyl.
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During the same time, a different confidential witness,
CW-5, also purchased heroin and fentanyl from the DTO through
Paredes, which he would later resell. CW-5 sold large amounts of
cocaine, at least 100 grams every one to three weeks, to Paredes.
These cocaine sales are at the core of Paredes's appeal. In
addition, the telephone call described earlier, which the FBI used
to identify Paredes as a member of the DTO, reveals that Baez
purchased cocaine supplied by Paredes on at least one occasion.
However, the record does not reveal from whom Paredes obtained the
cocaine.
In 2020, a federal grand jury returned a superseding
indictment against Paredes and other individuals involved in the
DTO. Paredes was charged with conspiracy to distribute and to
possess with the intent to distribute heroin, cocaine, and
fentanyl2 in violation of 21 U.S.C. §§ 841(a)(1), 846.3 The
indictment further alleged that the offense charged involved "400
grams or more of a mixture and substance containing a detectable
amount of" fentanyl and "100 grams or more of a mixture and
2 The indictment also listed cocaine base as one of the charged
substances. However, the jury instructions did not reference
cocaine base because the government had informed the court that
"there was no evidence that Paredes was involved in the
distribution of cocaine base." And rather than listing the
specific drugs involved, the jury verdict form simply listed
"controlled substances."
The eight-count indictment charged Paredes
3 along with
seventeen others, including Baez and Vidarte.
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substance containing a detectable amount of heroin."
Additionally, the indictment alleged that both substances were
"reasonably foreseeable by" and "attributable to" Paredes such
that statutory mandatory-minimum sentences applied to the charge,
§ 841(b)(1)(A)(vi) (ten-year mandatory minimum for substance
containing fentanyl), (b)(1)(B)(i) (five-year mandatory minimum
for substance containing heroin).
The case proceeded to trial, during which the government
elicited testimony from two FBI agents involved in the
investigation, CW-5, and several of the confidential witnesses who
participated in controlled purchases. The government also
presented transcripts of numerous telephone calls and text
messages between members of the DTO, including Paredes, and between
DTO members and confidential witnesses. With respect to these
calls and messages, the government asked the FBI agents multiple
questions about what they understood those messages to mean (e.g.,
asking the agents what they understood certain slang terms to mean
or what they understood certain comments to be referring to).
Following the seven-day trial, the jury convicted
Paredes of the one count of conspiracy to distribute and to possess
with intent to distribute 1 kilogram or more of heroin, 400 grams
or more of fentanyl, and 500 grams or more of cocaine in violation
of 21 U.S.C. § 846. The jury additionally found that the
conspiracy involved 400 grams or more of "a mixture or substance
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containing a detectable amount of" fentanyl and 100 grams or more
of "a mixture or substance containing a detectable amount of"
heroin and that both were "reasonably foreseeable by" or
"attributable to" Paredes. Other details from the trial which are
relevant to the issues on appeal are discussed below.
The district court sentenced Paredes to 135 months of
incarceration to be followed by 5 years of supervised release.
Paredes timely appealed his conviction.
II. Discussion
On appeal, Paredes raises two claims of error: (1) that
the district court erred in allowing the FBI agents to testify as
to their understanding of various telephone calls and text
messages, and (2) that the evidence presented at trial varied from
the charges presented in the indictment. Neither is availing.
A. Evidentiary Issue
Paredes first argues that the district court erred in
permitting law enforcement officers to explain what they
understood various statements made in the wiretapped telephone
calls and texts to mean. Paredes notes that there were several
colloquies between the government and the officers where a portion
of a text message or telephone call transcript was read aloud and,
when asked by the government, the officers "interpret[ed] what
[they] believed the parties were discussing." Paredes asserts
that such interpretation was not needed because the language in
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these intercepted communications was "clear" and did not contain
"ambiguous terms or cryptic statements." Paredes contends that
"[t]he district court erroneously permitted law enforcement
witnesses to testify as to what their interpretation was of
wiretapped phone calls and text messages," going "beyond
permissible opinion testimony regarding industry trade and
customary use." Notably, although the government introduced many
calls and messages and asked the officers many questions about
them, Paredes has not included the specific testimony he takes
issue with nor explained why that testimony is problematic.
Instead, he relies on broadly stated legal principles and only a
handful of citations to discrete portions of testimony -- he makes
no arguments about why the particular testimony went "beyond
permissible opinion testimony." In response, the government
contends that the claim is "triply waived." We agree that Paredes
has waived this issue.
1. Additional Background
Prior to trial, the government filed a motion in limine
regarding "the admissibility of law enforcement lay opinion
testimony" about, among other things, "coded language of drug
dealers." Paredes filed his own motion in limine, asking the
district court to "prohibit any [g]overnment witness from
commenting on, or testifying as to, their interpretation of the
recordings and texts being offered by the [g]overnment in this
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case." The district court reserved judgment on these issues until
they arose at trial, explaining during a pretrial conference that
it would "deal with these [issues] individually . . . let [the
parties] refine [their] arguments at the time."
At trial, the government called Bradley John
Gullicksrud, an FBI supervisory special agent involved in the
investigation of the DTO. During his testimony, the government
read into evidence a translated transcript of a telephone call
(originally in Spanish) between Paredes and Vidarte. Before the
government began questioning Gullicksrud about the contents of the
call, Paredes's counsel objected.
Paredes's counsel explained that the objection related
to the motion in limine and that he objected "to any interpretation
by the officer as to what this actually means." The court then
inquired of the government, asking "what exactly" Gullicksrud
would be asked to interpret, noting that it thought "the call
pretty much speaks for itself." The government explained that it
would inquire as to the meaning of various terms used in the
telephone call transcripts and text messages it planned to
introduce. There was then a brief discussion between the parties
about which terms would be asked about and how the government
witness would explain them, at which point Paredes's counsel
determined that the government was not seeking to elicit testimony
that Paredes would object to. The exact exchange follows:
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[Paredes's counsel]: In this case they're
interpreting it in a way I don't object to
but . . . if there's no interpretation the
other way, I don't . . . I don't have the same
objection.
THE COURT: So it sounds to me like there's
not an issue on that.
[Paredes's counsel]: Apparently there's not
going to be, and I just wanted to put that out
there because that goes in two
different . . . directions.
THE COURT: Okay. Okay.
[Paredes's counsel]: Thank you, your Honor.
[Government]: I don't believe . . . that's
going to be an issue, your Honor.
The government then proceeded with its questioning of
Gullicksrud regarding the call transcript and introduced
additional calls and texts, similarly asking Gullicksrud to
explain his understanding of those calls. Paredes's counsel did
not object to any of the questions or to any of Gullicksrud's
testimony regarding his understanding of what the various
communications meant.
The government later called Michael Rumery, a sergeant
with the Massachusetts Department of Corrections, who was also
assigned as a task force officer with the Department of Justice's
Organized Crime Drug Enforcement Task Force in Boston. Rumery
worked alongside Gullicksrud on the FBI's investigation of the
DTO. Again, the government presented telephone call transcripts
and text messages and asked Rumery to explain what he understood
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the communications "to be talking about" and certain terms to mean.
At no point did Paredes's counsel object to such questioning.
2. Analysis
We agree with the government that Paredes's challenges
to Gullicksrud and Rumery's testimony regarding their
understanding of the various texts and telephone calls admitted
during trial have been waived, for several reasons.
First, although Paredes objected when the government
first sought to introduce the allegedly offending evidence, he
ultimately withdrew that objection. His counsel explained that "I
don't have the same objection" and "[a]pparently there's not going
to be" an issue with the evidence. While the nature of this
withdrawal suggested the possibility of future objections,
Paredes's counsel did not object to later questioning that elicited
this type of "interpretation" testimony. Thus, Paredes has waived
his claim of error. See United States v. Miranda-Carmona, 999
F.3d 762, 767 (1st Cir. 2021) ("[A] party cannot concede an issue
in the district court and later, on appeal, attempt to repudiate
that concession and resurrect the issue." (quoting United States
v. Rivera-Ruperto, 846 F.3d 417, 431 n.10 (1st Cir. 2017))).
Further, while Paredes suggests that his motion in
limine preserved his evidentiary challenges, "when the district
court tentatively denies a pretrial motion in limine, or temporizes
on it, the party objecting to the preliminary in limine
- 10 -
determination must renew his objection during the trial, and the
failure to do so forfeits any objection." United States v. Noah,
130 F.3d 490, 496 (1st Cir. 1997). Here, the district court made
clear that the issue raised in the motion in limine would be
addressed with respect to specific testimony as it occurred during
trial. The district court's assessment established that it would
not make a single, general determination and that Paredes would
need to contemporaneously object to each allegedly problematic
piece of testimony. Thus, we do not agree that Paredes's motion
in limine preserved his challenges to this evidence.
Second, any of the evidence admitted without objection,
if such objection was merely forfeited, would be reviewed for plain
error, see United States v. Concepcion-Guliam, 62 F.4th 26, 32(1st Cir. 2023), but Paredes has not addressed, let alone analyzed, the plain error standard. Accordingly, claims relating to that evidence are waived. See United States v. Pérez-Greaux,83 F.4th 1, 31
(1st Cir. 2023).
Third, and finally, Paredes has failed to provide
sufficient citations to the portions of the record regarding the
evidence he now challenges and, more importantly, has provided
only bare-bones analysis as to why such evidence was inadmissible.
He has not, for example, explained how any specific agent testimony
went beyond acceptable opinion evidence. Accordingly, we deem his
claims waived for insufficient briefing. See United States v.
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Martínez-Hernandez, 118 F.4th 72, 97-98 (1st Cir. 2024) ("It is
[an appellant's] responsibility to specify the statements to which
[the appellant] objects. That particularity is important not only
so that we may assess the claim of error, but also so that we may
determine whether any error detected was harmless." (citation and
footnote omitted)); see id. at 98 ("[B]ecause [appellant] has
failed to 'put flesh on [the] bones' of his hearsay
argument -- effectively asking 'the court to do counsel's
work' -- we view this claim as waived for lack of 'developed
argumentation.'" (third alteration in original) (quoting United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990))). Thus, for
multiple reasons, Paredes has waived review of this evidentiary
claim.
B. Indictment Variance
Next, Paredes argues there was insufficient evidence to
support the jury's verdict because the evidence presented at trial
"[v]aried [m]aterially" from the charges contained in the
indictment. Specifically, he contends that, although the
indictment charged a single conspiracy, the evidence at trial
revealed multiple different conspiracies -- the heroin and
fentanyl conspiracy with the DTO and a separate and distinct
cocaine conspiracy between Paredes and CW-5 -- meaning that the
government had failed to prove Paredes was involved in the charged
single conspiracy involving fentanyl, heroin, and cocaine. He
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contends that the evidence showed that his cocaine dealings with
CW-5 were not connected to the DTO, and that the government had
not shown "that CW-5 and Paredes knew and agreed to some scheme
larger than their own spoke."
In response, the government argues that the evidence
supports the conclusion that dealings between CW-5 and Paredes
were part of the larger DTO conspiracy and, even assuming there
was a variance, it did not prejudice Paredes. We agree that
Paredes has not established that any variance prejudiced him and,
accordingly, he cannot succeed on this claim.
"A variance occurs when the crime charged remains
unaltered, but the evidence adduced at trial proves different facts
than those alleged in the indictment." Mangual-Santiago, 562 F.3d
at 421(quoting United States v. Yelaun,541 F.3d 415, 419
(1st Cir. 2008)). We review preserved variance arguments de novo. United States v. Walker-Couvertier,860 F.3d 1, 14
(1st Cir. 2017). In determining whether the evidence presented at trial varied from the crime charged, "we 'review the record to determine whether the evidence and reasonable inferences therefrom, taken as a whole and in the light most favorable to the prosecution, would allow a rational jury to determine beyond a reasonable doubt' that a single conspiracy existed." Mangual-Santiago,562 F.3d at 421
(quoting United States v. Mena-Robles,4 F.3d 1026, 1031
(1st Cir. 1993)). "The jury's finding, however, need not be inevitable."Id.
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(citing United States v. Boylan, 898 F.2d 230, 243 (1st Cir.
1990)).
In situations such as this, our assessment must be
"pragmatic," and "[w]e consider, among other things, whether a
rational jury could have found that the coconspirators had a common
goal, were interdependent, and had overlapping roles."
Walker-Couvertier, 860 F.3d at 14(citing United States v. Fenton,367 F.3d 14, 19
(1st Cir. 2004)). Importantly, "[a] variance is grounds for reversal only if it is prejudicial, that is, if it affects the defendant's 'substantial rights.'"Id. at 16
(alteration in original) (quoting Mangual-Santiago,562 F.3d at 421
).
Paredes contends that, instead of presenting evidence of
a single conspiracy, the government presented evidence of two
separate conspiracies: the DTO, of which Paredes was a part, and
the cocaine dealings between Paredes and CW-5.4 He has not,
4 Before trial, Paredes moved to exclude CW-5's testimony as
irrelevant, arguing that it was prior conduct being introduced as
propensity evidence to show that because Paredes was involved in
prior drug deals, he must be part of the DTO. The government
contended that CW-5 would testify to deals that occurred during
the relevant time and that CW-5 "was an unindicted coconspirator"
and that "his testimony [wa]s entirely within the scope of
admissibility." On appeal, Paredes again argues that all of CW-5's
testimony was irrelevant. However, aside from asserting that "the
evidence did not even suggest CW-5 was involved in any conspiracy
involving the . . . DTO" and therefore is irrelevant, Paredes has
not provided any argumentation on that point. Indeed, this point
is buried within the portion of the brief dedicated to his variance
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however, sufficiently argued why such a variance prejudiced him
and so has waived any variance argument. See id.(finding failure "to offer any developed argumentation" on the "keystone issue" of prejudice rendered variance claim waived (first citing Zannino,895 F.2d at 17
and then quoting Mangual-Santiago,562 F.3d at 421
)).
Even assuming no such waiver, we cannot see how any
variance could have prejudiced Paredes. We have explained three
ways in which a variance can prejudice a defendant:
First, a defendant may receive inadequate
notice of the charge against him and thus be
taken by surprise at trial. Second, a
defendant may be twice subject to prosecution
for the same offense. Third, a defendant may
be prejudiced by 'evidentiary spillover': the
'transference of guilt' to a defendant
involved in one conspiracy from evidence
incriminating defendants in another
conspiracy in which the particular defendant
was not involved.
United States v. Wihbey, 75 F.3d 761, 774(1st Cir. 1996) (citations omitted) (citing United States v. Sutherland,929 F.2d 765, 772-73
(1st Cir. 1991)). In his bare-bones reference to prejudice, Paredes identifies only evidentiary spillover as a basis for prejudice. claim. Thus, we deem any claim of error regarding the relevance of CW-5's testimony waived. United States v. Zannino,895 F.2d 1, 17
(1st Cir. 1990).
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However, it is well established that, "when the evidence
shows that the defendant was involved in criminal activities that
constituted separate conspiracies, no prejudice arises because the
defendant, himself, engaged in charged conduct attributable to
each conspiracy." Mangual-Santiago, 562 F.3d at 423(citing United States v. Dunbar,553 F.3d 48, 62
(1st Cir. 2009)). "Put another way, multiple conspiracy is not a defense unless it creates reasonable doubt about whether the defendant is guilty of the charged conspiracy."Id.
(quoting Dunbar,553 F.3d at 62
).
Here, Paredes does not dispute that he was part of both
conspiracies, and given his inadequate briefing on the subject, he
does not address how his case requires divergence from our general
rule that such circumstances are not prejudicial.
III. Conclusion
For these reasons, we affirm Paredes's conviction.
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Reference
- Status
- Unpublished