 



                              United States Court of Appeals
                                                               For the First Circuit

Nos. 13-1593
     13-1601

                                                           UNITED STATES OF AMERICA,

                                                                      Appellee,

                                                                         v.

                                                  JUNIOR H. DE LA CRUZ-FELICIANO,
                                                            SANDRI RIJO,

                                                               Defendants, Appellants.


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

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



                                                                       Before

                                                  Lynch, Chief Judge,
                                         Torruella and Ripple,* Circuit Judges.




     David J. Wenc, on brief, for appellant Junior H. De La
Cruz-Feliciano.
     Felicia H. Ellsworth, with whom Eric F. Fletcher, Howard M.
Shapiro, and Wilmer Cutler Pickering Hale and Dorr LLP were on
brief, for appellant Sandri Rijo.
     Héctor E. Ramírez-Carbo, Assistant United States Attorney,
with whom Rosa Emilia Rodríguez–Vélez, United States Attorney,
Nelson Pérez–Sosa, Assistant United States Attorney, Chief,

                                                            
*
     Of the Seventh Circuit, sitting by designation. 



 
 


Appellate Division, and John A. Mathews II, Assistant United
States Attorney, were on brief, for appellee.

                     ___________________

                         May 13, 2015
                     ___________________




 
 


            RIPPLE, Circuit Judge.               Junior H. De La Cruz-Feliciano

(“De La Cruz”) and Sandri Rijo were charged with, and convicted

of,     conspiring     to    possess      with     intent    to    distribute     five

kilograms of cocaine and aiding and abetting others to do the

same.      They   now       appeal   their      convictions,      alleging     various

procedural and evidentiary errors.                 For the reasons set forth in

this opinion, we affirm the judgments of the district court.

                                            I

                                     BACKGROUND

            This case involves a conspiracy to smuggle over 900

kilograms of cocaine into Santa Isabel, Puerto Rico.                           Eduardo

Ubiera    and   Juan    Baltazar       orchestrated     the       operation.      They

recruited Francisco “Sandy” Navarro-Reyes (“Navarro”) and Gary

Brito-González       (“Brito”)       to     transport       the    cocaine,    via     a

motorboat, from a “mother ship” at sea to Puerto Rico.                               The

operation, however, did not run smoothly.                   While at sea, Navarro

and Brito ran out of fuel and were unable to make it back to

shore.     At that point, according to government witnesses, Mr. De

La Cruz was recruited to take another craft out to rendezvous

with and refuel the stranded motorboat.

            Mr. De La Cruz successfully delivered the fuel to the

stranded motorboat.           While still at sea, however, his own craft

developed mechanical problems.               Stranded at sea, Mr. De La Cruz

and another individual aboard the vessel used a satellite phone

                                          - 3 - 
 
 


to   call    for     help.         According           to    Freddy    Altagracia-Medina

(“Altagracia”), a codefendant, Mr. De La Cruz had requested the

satellite phone before departing in order to communicate with

the stranded motorboat.                 The United States Coast Guard found

Mr. De La Cruz’s vessel adrift approximately sixty miles from

shore and rescued its crew.                   Coast Guard agents questioned the

men about their satellite phone.                   According to Agent Christopher

David Xirau, the men claimed to have tossed the phone overboard

because it had become wet.

            Meanwhile,           traveling       in     their       refueled     motorboat,

Navarro and Brito reached the shore with the drugs on January

26, 2012, three days after the planned delivery date.                             Awaiting

their arrival were several individuals recruited to help unload

the motorboat.         Mr. Rijo was among this group.                        According to

government witnesses, he originally planned to serve only as a

lookout;    however,      due      to     the     motorboat’s         late     arrival,    he

instead     ended    up   helping         to     unload       the     cocaine    from     the

motorboat into a Nissan Armada for transport to San Juan.

            Following        a    tip    from     a    confidential      informant,       law

enforcement        anticipated          the     January       26    delivery     and      were

surveilling    the     area       throughout           the    night.      They     observed

several individuals unloading the drugs from the motorboat into

a vehicle, but were unable to visually identify any of those

involved in the operation.                Two other vehicles were present at

                                              - 4 - 
 
 


the scene.                          Officers stopped the motorboat and three vehicles as

they departed the beach.                                               Ubiera and two other individuals were

stopped in the Nissan Armada.                                               Officers found over 900 kilograms

of cocaine and three firearms in the vehicle.                                                       Navarro, Brito,

and two other individuals were stopped in a second vehicle.

Baltazar, Mr. Rijo, and one other person were stopped in a third

vehicle.                      Three individuals were stopped in the motorboat.                                      All

thirteen                     men            were               arrested    immediately.          Officers    arrested

Mr. De La Cruz six days later.

                             On           February                1,    2012,      a   grand     jury    returned    an

indictment, charging Mr. Rijo, Mr. De La Cruz, and their twelve

codefendants                              with                 conspiring     to       possess    with    intent    to

distribute five kilograms of cocaine, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(A)(ii), and 846, and aiding and abetting

the same, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii)

and 18 U.S.C. § 2.1                                            Everyone except Mr. Rijo and Mr. De La Cruz

accepted plea agreements.                                               After a trial, the jury found both

                                                                                                            2
Mr. Rijo and Mr. De La Cruz guilty as to all charges.                                                           After

                                                                                           3
sentencing, the defendants timely appealed.


                                                            
1  The indictment also charged Ubiera and two other defendants
with possession of a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A).
2  The district court’s jurisdiction was premised on 18 U.S.C.
§ 3231.
3 Our jurisdiction is secure under 28 U.S.C. § 1291.  




                                                                          - 5 - 
 
 


                                     II

                                 DISCUSSION

A.     Mr. De La Cruz

            On appeal, Mr. De La Cruz raises only one argument.

It concerns the district court’s questioning of Agent Xirau of

the United States Coast Guard.            At trial, the agent testified

about the rescue of Mr. De La Cruz aboard the vessel that had

gone    adrift.         Agent   Xirau     stated   that   he   had   asked

Mr. De La Cruz and the other individual aboard the vessel about

the satellite phone that they had used to call the Coast Guard.

During the agent’s testimony, on the fourth day of a six-day

trial, the following exchange took place:

            THE GOVERNMENT: I will ask you to clarify,
                            when you refer to one of the
                            two individuals on the boat,
                            what specifically as to each
                            individual  they   said,  if
                            anything?

            AGENT XIRAU:        Roger that.

            THE GOVERNMENT: I   was  asking   you   about
                            Junior De la Cruz, if upon
                            you questioning him did he
                            answer anything to you?

            AGENT XIRAU:        That was the only question
                                that    I    remember  him
                                specifically giving me an
                                answer.

            THE GOVERNMENT: What    about          the    other
                            individual?



                                   - 6 - 
 
 


                             AGENT XIRAU:                         I don’t remember his name.
                                                                  When I say they, I could
                                                                  mean   either  one  or   the
                                                                  other, I don’t remember who
                                                                  at time who was the one that
                                                                  gave answers to the several
                                                                  questions we asked.

                             THE COURT:                           But were questions generally
                                                                  answered?

                             AGENT XIRAU:                         Yes, ma’am.

                             THE COURT:                           Any   of   them  express a
                                                                  disagreement with what the
                                                                  other was saying at the
                                                                  time?

                             AGENT XIRAU:                         No, ma’am.[4]

                             Defense                    counsel     objected      to    the    district   court’s

questioning.                              In particular, counsel asserted that the questions

conveyed that the district court was commenting on Mr. De La

Cruz’s silence when speaking with Coast Guard officials.                                                        The

district                     court               disagreed,         stating     that     the   witness    “is   not

saying that [Mr. De La Cruz] did not answer, he says he does not

remember                      who             answered          what.”5         Nevertheless,       despite     its

disagreement                             with             defense   counsel’s         characterization    of    the

exchange,                       the           district         court    gave      a    cautionary   instruction,

stating that the jury was “not to draw any inferences from the




                                                            
4 R.401 at 69–70. We have added the names of the speakers for
the convenience of the reader.
5 Id. at 71.




                                                                      - 7 - 
 
 


questions that [the court] posed.”6                                              “My only intent here,” the

district                     court               explained,          “was   to   assist     in   clarifying   the

situation.                             But once again I instruct you that there is no

intent and . . . no inference [should be] drawn from any type of

question I have posed.”7

                             Following the district court’s cautionary instruction,

Agent Xirau then testified that Mr. De La Cruz and the other

individual aboard the vessel had offered a strange explanation

for no longer possessing the satellite phone that they had used

to call for help.                                         According to the agent, the men had told him

that they threw the satellite phone overboard because it had

become wet.                           The agent described this explanation as “odd.”8

                             Mr. De La Cruz now contends that the district court’s

questioning of Agent Xirau evinces judicial bias in violation of

his right to due process of law.                                                “When addressing allegations

of judicial bias, we consider whether the comments were improper

and,             if         so,           whether              the   complaining    party    can   show   serious

prejudice.”                           United States v. Ayala-Vazquez, 751 F.3d 1, 24 (1st

Cir.             2014)                (internal                quotation    marks    omitted).       We    assess

statements in light of the record as a whole, not in isolation.

Id.


                                                            
6   Id. at 72.
7   Id. 
8   Id. at 74–75.


                                                                       - 8 - 
 
 


                In assessing this claim of judicial bias, our starting

point is the basic principle that “there is nothing inherently

improper about a judge posing questions at trial.”                        Id.    Indeed,

as we have previously observed, a court “has the prerogative,

and at times the duty, of eliciting facts [it] deems necessary

to the clear presentation of issues.”                   United States v. Rivera-

Rodríguez, 761 F.3d 105, 111 (1st Cir. 2014) (quoting United

States v. Paz Uribe, 891 F.2d 396, 400 (1st Cir. 1989)); see

also Fed. R. Evid. 614(b) (“The court may examine a witness

regardless of who calls the witness.”).                          Such questioning is

permissible “so long as [the court] preserves an attitude of

impartiality and guards against giving the jury an impression

that   the      court   believes       the    defendant     is    guilty.”       Rivera-

Rodríguez, 761 F.3d at 111 (quoting Paz Uribe, 891 F.2d at 400–

01).      Notably, a question is not improper simply because it

clarifies evidence to the disadvantage of the defendant.                             See

United    States     v.    Montas,     41    F.3d    775,   781    (1st   Cir.    1994).

“[T]he    rule     concerning     judicial       interrogation       is   designed    to

prevent judges from conveying prejudicial messages to the jury.

It is not concerned with the damaging truth that the questions

might uncover.”         United States v. Martin, 189 F.3d 547, 554 (7th

Cir. 1999).

                Even if a comment is improper, however, a defendant

also     must    show     that   the    judicial      intervention        resulted    in

                                            - 9 - 
 
 


“serious prejudice.”                                           Rivera-Rodríguez, 761 F.3d at 112.                As we

recently                         have               observed,           this      burden      is     comparable       to

demonstrating prejudice under plain error review.                                                       See id.       In

other                  words,                     “improper             judicial        intervention        ‘seriously

prejudice[s]’ a defendant’s case when we find that there is a

reasonable                        probability                   that,     but     for   the   error,    the    verdict

would have been different.”                                               Id.      The burden of establishing

serious prejudice is more difficult where, as here, a court

follows its comments with an appropriate cautionary instruction.

See Ayala-Vazquez, 751 F.3d at 26 (noting that “within wide

margins,                     the           potential             for     prejudice       stemming     from    improper

testimony                        or          comments             can     be    satisfactorily         dispelled      by

appropriate                          curative                  instructions”       (quoting        United    States   v.

Pagán-Ferrer, 736 F.3d 573, 582 (1st Cir. 2013))).

                             Here, Agent Xirau testified that he could not remember

who, between Mr. De La Cruz and the other individual aboard the

vessel,                   had            answered               his     questions       regarding     the    satellite

phone.                  The district court then asked whether either of the men

“express[ed] a disagreement with what the other was saying at

                             9
the time.”                           This question, Mr. De La Cruz contends, “conveyed to

the jury that the defendant” was “in tacit agreement with any

answers                   to           the            question        about     the     satellite      phone,”     thus

                                                            
9   Id. at 70.


                                                                        - 10 - 
 
 


“creat[ing]                            ‘cover’                   for    the     government        to    attribute      the

satellite phone to” him.10

                             We perceive no error in the district court’s remarks.

The           court’s                   inquiry                  was    neither       tinged     with   partiality     nor

suggestive of the court’s stance on Mr. De La Cruz’s guilt.

Rather,                  this             inquiry                merely    clarified       an     ambiguity    in    Agent

Xirau’s testimony.                                             That the resulting clarification was adverse

to Mr. De La Cruz’s case is not, without more, indicative of

judicial bias.                                  See Martin, 189 F.3d at 554.                        In any event, the

court’s remarks, which came on the fourth day of a six-day trial

and were followed by an appropriate cautionary instruction, did

not           seriously                      prejudice                 Mr. De    La    Cruz’s     case.     See     Ayala-

Vazquez, 751 F.3d at 25–26.

B.         Mr. Rijo

                             Mr. Rijo raises three arguments on appeal.                                        First, he

contends that the Government violated its duty under Brady v.

Maryland, 373 U.S. 83 (1963), by failing to disclose errors in

an           investigative                                 report        prior        to   his     counsel’s      opening

statement.                          Second, he submits that the district court erred in

admitting evidence of his prior bad acts.                                                        Finally, he contends

that the Government’s closing argument inaccurately described




                                                            
10   Appellant’s Br. 28. 


                                                                          - 11 - 
 
 


his           role             in          the           offense,         thus       resulting      in    prejudice     that

warrants a new trial.11                                             We address these issues in turn.

                                                                               1.

                             Mr. Rijo first submits that the Government committed a

Brady violation by failing to disclose errors in a DEA Report of

Investigation--known as a “DEA 6”--prior to defense counsel’s

opening statement.                                             The DEA 6 at issue was prepared by Agent

William Rosario and summarized statements made by Altagracia.

The DEA 6 contained several erroneous statements due to the

agent’s                     confusion                          of    Sandri          Rijo,    the        defendant,     with

Sandy Navarro.                                     In          particular,          the   report    erroneously       stated

that Mr. Rijo, rather than Navarro, was on the motorboat with

Brito and had helped to transport the drugs from the “mother

ship” to shore.                                        Agent Rosario also created handwritten notes

before                 preparing                        the         DEA   6.         Those    notes,       however,     were

partially in Spanish and contained at least one instance where

the agent again confused Mr. Rijo with Navarro.

                             The Government turned over the DEA 6 and the agent’s

handwritten notes to defense counsel during pretrial discovery.

The Government also disclosed its plans to call Altagracia as a

                                                            
11Originally, Mr. Rijo also appealed his sentence on procedural
and substantive grounds.     Following oral argument, however,
Mr. Rijo, through his attorney, filed a signed letter asking to
withdraw his sentencing challenge. We grant Mr. Rijo’s request
and thus do not consider this issue further.


                                                                          - 12 - 
 
 


witness to testify that Mr. Rijo was on the shore during the

delivery and helped to unload the drugs.

          Before   opening    statements,   defense   counsel   informed

the district court and the Government of his intent to attack

Altagracia’s credibility, in part by claiming that Altagracia

had offered three different accounts of the relevant events.

One of those accounts was premised on the erroneous statements

in Agent Rosario’s DEA 6.     Defense counsel never explicitly told

the Government of his intent to rely on those statements.

          During    opening     statements,    Mr.    Rijo’s     counsel

presented a defense premised in large part on impeaching the

Government’s three main witnesses, one of whom was Altagracia.

Defense counsel presented his attack on Altagracia’s credibility

as follows:

          [Altagracia] has given the government at
          least three different versions as to what
          happened. The first time he gave a version
          to the government when he was originally
          caught, he said that he had been fishing
          since January 23.    Now, that same witness
          did not mention anyone else at that time, he
          said I was fishing since January 23, three
          days before they were caught.      Then, in
          April when he is already negotiating with
          the government and trying to get them to
          give him a good deal, he says that on
          January 22, I took Sandri Rijo to Fajardo,
          my client, to Fajardo to get on a boat to
          meet the mother boat, or the boat bringing
          in the drugs closer to Puerto Rico, to go
          there. And he also says that he did not see
          Sandri Rijo again until dawn on January 26


                                - 13 - 
 
 


                             when he came in piloting                                the     boat       that
                             brought the drugs in.

                                       Now, the third version that he
                             gave, you just heard from the prosecutor.
                             Notably when he gave the version of April he
                             did not place Sandri Rijo anywhere else
                             between the 22 to the 26, because Sandri
                             Rijo was out on the boat, the mother boat.
                             What do we say here, as I said you already
                             heard the government give us a preview as to
                             that.[12]

                             After                opening          statements,       the     Government         informed

defense                  counsel                   about         the   mistakes     in     its    DEA    6.      Defense

counsel                   in          turn               moved     for     a    mistrial,    claiming          that        his

                                                                                                                      13
“client[’s] right to a fair trial ha[d] been compromised.”                                                                  In

particular,                             defense                counsel         expressed     concern           that        the

Government’s                            late              disclosure       undermined      the    defense       strategy

that he had presented to the jury during opening statements.

                             The            district             court     denied    Mr. Rijo’s         motion.             It

concluded that defense counsel’s ability to present Mr. Rijo’s

defense before the jury had not been impaired because he still

could attack Altagracia’s credibility at trial and could call

Agent Rosario to testify about the DEA 6.                                                        Further, the court

held that Agent Rosario’s handwritten notes made clear that “the

person identified was Sandy N[a]varro,” and that the “inaccuracy

in the DEA 6 . . . could be gathered by reviewing the [agent’s]

                                                            
12   R.385 at 12–13.
13   R.394 at 5.


                                                                         - 14 - 
 
 


rough notes.”14                                  Defense counsel did not call Agent Rosario as a

witness at trial.

                             Mr. Rijo now contends that the Government violated its

duty under Brady by failing to disclose, in a timely manner, the

errors in its DEA 6.                                            Specifically, Mr. Rijo submits that those

errors are exculpatory because they provide evidence of a sloppy

police investigation.                                           Although Mr. Rijo’s motion for a mistrial

did not explicitly allege a Brady violation, both parties assume

on appeal that the motion was based on Brady.                                                          Indeed, the

Government                         has           not           argued   that     the   claim    was   forfeited    or

waived.                       For this reason, we assume that a Brady claim was

properly raised before the district court, see United States v.

Gonyer, 761 F.3d 157, 166 n.4 (1st Cir. 2014), and we review the

district                     court’s                   determination           for   abuse   of   discretion,     see

United States v. Celestin, 612 F.3d 14, 22 (1st Cir. 2010).

                             Brady requires that the Government disclose “evidence

favorable to an accused” that is “material either to guilt or to

punishment.”                               373 U.S. at 87.                   In order to prevail on a Brady

claim, a defendant must show that: (1) evidence was suppressed;

(2)          the           evidence                     was      favorable     to    the   accused;   and   (3)   the

evidence                     was           material              to     either    guilt    or   punishment.       See

Strickler v. Greene, 527 U.S. 263, 281–82 (1999).                                                      With regard

                                                            
14   Id. at 12, 16.


                                                                        - 15 - 
 
 


to    the   first       prong,     we    do       not     consider      favorable        evidence

suppressed        “if     the     defendant         either        knew,     or     should     have

known[,] of the essential facts permitting him to take advantage

of any exculpatory evidence.”                     Ellsworth v. Warden, 333 F.3d 1,

6 (1st Cir. 2003) (quoting United States v. LeRoy, 687 F.2d 610,

618   (2d    Cir.       1982)).         As    for      the    second    and      third      prongs,

“[e]vidence       is     ‘favorable          to     the      accused’     if     it    is    either

exculpatory or impeaching in nature and ‘material’ if there is a

reasonable probability that, had it been disclosed, the result

of the proceeding would have been different.”                               United States v.

Prochilo, 629 F.3d 264, 268 (1st Cir. 2011).

              Brady       also    applies         in      cases    where       the     Government

delays disclosure of relevant evidence.                                In such cases, the

defendant further must show “that the delay prevented defense

counsel      from       using     the        disclosed          material       effectively       in

preparing and presenting the defendant’s case.”                                  United States

v. Van Anh, 523 F.3d 43, 51 (1st Cir. 2008).                                     To carry this

burden, “[t]he defendant must at a minimum make a ‘prima facie’

showing      of     a    plausible           strategic        option       which      the    delay

foreclosed.”        Id.

              The parties’ dispute largely centers on the timing of

the Government’s disclosure.                        Ruling for the Government, the

district      court       determined          that        Agent    Rosario’s          handwritten

notes,      disclosed      along        with      the     DEA     6,   adequately        informed

                                              - 16 - 
 
 


Mr. Rijo of the errors in the DEA 6.    Further, the court held

that, even if the Government’s disclosure was late, Mr. Rijo was

not prejudiced by the delay because he still could call Agent

Rosario as a witness to testify about the errors at trial.    We

are troubled by the district court’s first rationale, but do

agree that the second has merit.

          As we noted earlier, evidence is not suppressed within

the meaning of Brady “if the defendant either knew, or should

have known[,] of the essential facts permitting him to take

advantage of” the evidence.   Ellsworth, 333 F.3d at 6 (emphasis

added) (quoting LeRoy, 687 F.2d at 618).      “The ‘should have

known’ standard refers to trial preparation,” and will generally

impute to the defendant knowledge which he otherwise would have

possessed from a diligent review of the evidence in his control.

See id. at 7; see also United States v. Pandozzi, 878 F.2d 1526,

1529 (1st Cir. 1989) (“Brady does not require the government to

turn over information which, with any reasonable diligence, the

defendant can obtain himself.” (alterations omitted) (quoting

Jarrell v. Balkcom, 735 F.2d 1242, 1258 (11th Cir. 1984))).

Here, the district court faulted Mr. Rijo for failing to notice

incongruities between Agent Rosario’s rough notes and the DEA 6,

which, according to the district court, would have (or at least

should have) alerted him to the errors in the DEA 6.    Although

we agree that a defendant ordinarily should notice errors in an

                              - 17 - 
 
 


investigative                                report                  when     such     incongruities      are      clearly

present,15 we have significant reservations, in this instance,

about the district court’s conclusion.                                                         Agent Rosario’s notes

are of poor quality.                                                 The agent’s rough handwriting, combined

with the fact that the notes were disclosed in the form of a

darkened photocopy, rendered the material that Mr. Rijo received

almost entirely illegible.                                                    Moreover, the agent’s notes were

partially in Spanish                                             and contained at least one instance in

which the agent further confused Mr. Rijo with Navarro.

                             We agree with the district court, however, that the

Government’s late disclosure of this evidence did not prevent

defense                   counsel                    from            effectively       using   it   at    trial.      The

Government disclosed these errors after opening statements on

the           first               day            of            trial,       Monday,    September    10,    2012.      The

Government rested its case at the end of the day on Friday,

September 14.                                     The defense rested on Tuesday, September 18,

without calling a single witness.                                                      Neither party called Agent

Rosario to testify even though the district court, in denying

Mr. Rijo’s                          motion                     for    a     mistrial,     explicitly      had      advised

Mr. Rijo that he could do so.                                                    Defense counsel thus had seven


                                                            
15Cf. Ellsworth v. Warden, 333 F.3d 1, 7 (1st Cir. 2003) (noting
that a defendant’s Brady claim could be barred if he “knew of
[potentially exculpatory evidence] at the time of his trial and
failed to pursue the lead”).


                                                                             - 18 - 
 
 


days--three of which were unencumbered by trial--to use this

evidence in preparing and presenting Mr. Rijo’s case.

             Mr. Rijo has offered no reason why this interval was

not enough time for defense counsel to make effective use of the

disclosed material, nor could he.               See United States v. Peters,

732   F.2d    1004,    1009    (1st      Cir.     1984)     (holding      that   the

Government’s belated disclosure of impeachment evidence, which

was   “short,   uncomplicated,        and    fairly     predictable,”      did   not

violate Brady where the defendants had “two full days, including

one nontrial day, in which to prepare to cross-examine” the

witness).     To the extent that this evidence was exculpatory, its

relevance to Mr. Rijo’s case was straightforward: it undermined

the    thoroughness      and     good        faith     of      the   Government’s

investigation.         This    defense       is      neither    complicated      nor

inconsistent    with   the     defense      strategy      pursued    by   Mr. Rijo.

Seven days afforded ample time for its preparation.                    See id.   On

these facts, we cannot conclude that the Government’s belated

disclosure of this evidence prevented defense counsel from using

it in preparing and presenting Mr. Rijo’s case.

                                        2.

             Mr. Rijo next submits that the district court erred,

under Federal Rules of Evidence 403 and 404(b), in admitting (1)

testimony by Altagracia that Mr. Rijo had threatened him while

in prison and (2) testimony by Agent Jesus Marrero that drug-

                                      - 19 - 
 
 


trafficking organizations would look for “experienced people” to

handle a shipment of the size involved in this case.                                                         We review

for abuse of discretion a district court’s decision regarding

the           admissibility                               of   evidence      under    Rules      403    and       404(b).

United States v. Lugo Guerrero, 524 F.3d 5, 14 (1st Cir. 2008).

                             Rule             404(b)           provides     that     “[e]vidence       of     a    crime,

wrong,                 or         other               act      is   not    admissible      to   prove    a     person’s

character in order to show that on a particular occasion the

person acted in accordance with the character.”                                                        Fed. R. Evid.

404(b)(1).                            However, this rule permits the admission of prior

acts             evidence                      having          “special”      relevance--that          is,    evidence

relevant for a non-propensity-based purpose, “such as proving

motive,                    opportunity,                        intent,      preparation,        plan,        knowledge,

identity,                       absence                   of   mistake,      or     lack   of    accident.”             Id.

404(b)(2).16                                 In          assessing        whether    prior      acts    evidence         is

admissible for such a purpose, we apply a two-step test.                                                          United

States v. Landry, 631 F.3d 597, 601–02 (1st Cir. 2011).                                                            First,

we ask whether the proffered evidence truly possesses “special”

relevance.                           Id. at 602.                    If it does, we then apply Rule 403,

admitting the evidence so long as its probative value is not

substantially outweighed by the risk of unfair prejudice.                                                         Id.
                                                            
16 As we have noted on previous occasions, Rule 404(b)(2)’s
listing of permissible purposes is illustrative rather than
exhaustive.  United States v. Landry, 631 F.3d 597, 602 (1st
Cir. 2011).


                                                                      - 20 - 
 
 


                             We start with the admission of Altagracia’s testimony.

At trial, Mr. Rijo’s defense counsel cross-examined Altagracia

about his limited relationship with Mr. Rijo.                                                    In particular,

defense                   counsel                    asked       when,   if    ever,   he    had   spoken   with

Mr. Rijo.                         After first describing how they had spoken “in the

field”                   during                   their         criminal      activities,    Altagracia      then

responded that Mr. Rijo had threatened him while in prison:

                             When I was at the 2B unit, Mr. Sandri Rijo
                             yelled at me through the--in other words I
                             was playing basketball out in the yard and
                             he yelled at me and said that if I turned
                             around with the authorities he was going to
                             have my family kidnaped [sic], that he was
                             going to also have me beat up and that he
                             had already given orders to have my family
                             kidnaped [sic].[17]

Defense counsel objected to this unexpected testimony, but the

district                     court               overruled         his   objection,     noting     that   defense

counsel “had plenty of time to stop th[e] witness.”18

                             The Government contends that the district court did

not err in admitting evidence of Mr. Rijo’s threat, given that

defense counsel was the one who elicited this testimony.                                                       We

agree.                   As we have acknowledged previously, a defendant cannot

complain about the admission of testimony directly responsive to

a      question                     posed               by     defense   counsel.      See   United   States   v.

Rivera-Rivera, 477 F.3d 17, 20 (1st Cir. 2007) (“Rivera cannot
                                                            
17   R.401 at 21.
18   Id. at 22.


                                                                     - 21 - 
 
 


persuasively      complain         about    the       admission      of    this       evidence,

given    that    it        was     the   defense--not          the     government--which

elicited it in the course of its cross-examination. . . .”);

United   States       v.    Lizardo,       445    F.3d    73,     84      (1st    Cir.      2006)

(noting that where a defendant elicited challenged testimony on

cross-examination, he could not “contest his own invited error”

on appeal); United States v. Cresta, 825 F.2d 538, 552 (1st Cir.

1987) (“It is apparent from the record that defense counsel did

elicit the response, although perhaps inadvertently, and cannot

now complain of the alleged error.”).                           Here, defense counsel

asked Altagracia whether he ever had spoken with Mr. Rijo.                                    In

response,       Altagracia          stated       that        Mr. Rijo       verbally          had

threatened      him    while       in    prison.         Because       this       answer      was

directly responsive to defense counsel’s open-ended question,

Mr. Rijo cannot now complain of its admission on appeal.

             In any event, Altagracia’s testimony would have been

admissible      even       if    elicited        by    the    Government.              As    the

Government correctly notes, evidence that Mr. Rijo threatened a

government witness is probative of his “consciousness of guilt.”

United States v. Burnett, 579 F.3d 129, 133 (1st Cir. 2009).

“Such threats may imply that the defendant has something to hide

or a desire to cover something up.”                      United States v. Rosa, 705

F.2d    1375,    1377       (1st    Cir.     1983)       (internal        quotation         marks

omitted).        This       use     of     prior      acts     evidence          is    entirely

                                           - 22 - 
 
 


permissible under Rule 404(b).                                                 See Burnett, 579 F.3d at 133.

Thus, because Mr. Rijo’s threat is probative in this regard,

Rule 404(b) does not require its exclusion.

                             Mr. Rijo’s Rule 403 challenge is equally unavailing.

In prior cases involving the application of Rule 403 to evidence

of a defendant’s threats against a government witness, we have

considered a variety of factors, including “whether the jury

heard graphic details of how the threat would be carried out,

whether                   the            threat                was    made     as   an      emotional     or    impulsive

reaction, and how important the evidence about the threat was to

                                                                19
the Government’s case.”                                               Id. at 134 (citations omitted).               Here,

the district court certainly did not abuse its discretion in

admitting the evidence.                                              Altagracia’s testimony did not involve

graphic                  or         sensational                      details   of     the      content    of   Mr. Rijo’s

threat.                          Further,                      as    we   noted     earlier,       this    evidence    is

probative of Mr. Rijo’s consciousness of guilt, which, given his

defense that he was essentially in the wrong place at the wrong

time, was highly relevant to the Government’s case.                                                            For these

reasons,                      we          cannot                conclude       that      the     probative     value   of

Altagracia’s testimony was outweighed, much less substantially

so, by the risk of unfair prejudice.




                                                            
19   This list of relevant factors is by no means exhaustive.


                                                                          - 23 - 
 
 


                             Turning                   to       Agent      Marrero’s     testimony,    at    trial    the

agent offered testimony about cocaine sales in Puerto Rico and

the practices of drug smugglers.                                                      In particular, he testified

that a drug-trafficking organization would look for “experienced

people” to handle a shipment of the size involved in this case.20

Mr. Rijo contends that this testimony ran afoul of Rules 404(b)

and           403           by          implying                 that      he   had    prior    experience    in     drug

trafficking.                                Because Mr. Rijo did not raise these objections

before the district court, our review is for plain error.                                                            See

United States v. Rodríguez-Adorno, 695 F.3d 32, 38 (1st Cir.

2012).

                             With respect to his Rule 404(b) objection, Mr. Rijo’s

argument fails at its first step.                                                     Rule 404(b) only applies to

“[e]vidence of a crime, wrong, or other act.”                                                          Fed. R. Evid.

404(b)(1).                            Agent Marrero’s testimony did not reveal a crime,

wrong, or other act committed by Mr. Rijo.                                                       Rather, he merely

described                        the             way            in    which     drug-trafficking       organizations

generally operate.                                             As such, his testimony does not fall within

the ambit of Rule 404(b).

                             In         his            Rule          403   objection,     Mr. Rijo     contends      that

Agent                Marrero’s                        testimony            suggests      that    Mr.   Rijo    was     an

experienced drug trafficker, thus giving the impression that he


                                                            
20   R.405 at 147. 


                                                                           - 24 - 
 
 


had participated in such acts in the past and was likely to do

so in the future.           This argument falls wide of the mark.                                The

agent’s testimony simply stated that drug dealers who undertake

sea-to-shore delivery operations realize the high risk of such

an undertaking.          Consequently, they employ only individuals who

are committed to the success of the operation and who have the

experience    necessary       to     bring       the    venture       to    a     successful

conclusion.        This testimony was both relevant and probative; it

rebutted    Mr.    Rijo’s    claim     that      he     was    not    a    member          of   the

conspiracy but rather a mere tag-along or innocent bystander.

The importance of this evidence outweighed any possible unfair

prejudice    that     may    have    resulted          from    the    implication               that

experience    in     the    drug    trade     necessarily            indicates         a    prior

criminal     history.        The     district          court    did       not     abuse         its

discretion in admitting this testimony and certainly did not

commit plain error.

                                            3.

             Finally,       Mr. Rijo    contends          that        the        Government’s

closing argument inaccurately described his role in the offense,

thus resulting in prejudice warranting a new trial.                                Mr. Rijo’s

argument is premised on the original transcript filed in this

case.       That    transcript       shows       four    instances          in    which          the

Government    incorrectly          referred      to     Sandy       Navarro       as       either

“Sandi   Rijo”      or   “Sandri     Rijo”       during       its    closing       argument.

                                       - 25 - 
 
 


These misstatements, assuming they occurred, portrayed Mr. Rijo

as     considerably      more    involved       in    the   conspiracy       than     the

evidence would otherwise show.

               During    the    pendency       of    this   appeal,    the    district

court, acting pursuant to Federal Rule of Appellate Procedure

10(e), granted a motion by the Government to supplement the

record    on    appeal    with    a     revised      transcript.       This     revised

transcript, which the court reporter had certified and filed

with the district court nearly nine months earlier, indicates

that     the    Government      did   not      in    fact   confuse    Navarro       with

Mr. Rijo       during    its    closing     argument.        The     district       court

granted the Government’s Rule 10(e) motion on the same day that

it was filed, without giving Mr. Rijo an opportunity to respond.

               Following the district court’s order, Mr. Rijo filed a

supplemental brief in this court asking us to reject the revised

transcript.       He also filed a motion for reconsideration in the

district       court.      In    both     filings,     Mr. Rijo      raised     several

significant arguments attacking the reliability of the revised

transcript.

               Federal Rule of Appellate Procedure 10(e) governs the

modification       or    correction       of    the    record   on    appeal.         In

particular, Rule 10(e)(1) provides that, “[i]f any difference

arises about whether the record truly discloses what occurred in

the district court, the difference must be submitted to and

                                         - 26 - 
 
 


settled by that court and the record conformed accordingly.”

Fed. R. App. P. 10(e)(1).                   A district court’s determination

under     Rule        10(e)(1)      “is    conclusive        absent       a     showing     of

intentional falsification or plain unreasonableness.”                                  Pagán-

Ferrer, 736 F.3d at 582 (quoting United States v. Serrano, 870

F.2d 1, 12 (1st Cir. 1989)).

             Because Mr. Rijo was not afforded an opportunity to

respond    to       the    Government’s     Rule     10(e)       motion,      the     district

court never heard or considered any of his arguments before

certifying       the      revised      transcript    as     part    of    our    record     on

appeal.          In       order   to     remedy    this     deficiency,          we     stayed

Mr. Rijo’s appeal following oral argument and, while retaining

jurisdiction,          remanded     the    case     for    the     limited      purpose     of

obtaining       a     ruling      from    the     district        court    on    Mr. Rijo’s

objection.          In particular, we ordered the district court to

address Mr. Rijo’s then-pending motion for reconsideration.

             On       remand,     the     district        court    ordered       its    court

reporter to submit a certified copy of her stenographer’s notes

from the Government’s closing argument as well as an affidavit

explaining how those notes support the revised transcript.                                 The

court reporter did so, explaining in her affidavit that her

stenographer’s notes showed that the Government had not confused

Navarro with Mr. Rijo during its closing.                         Rather, as the court

reporter explained, she had simply mistyped “Rijo” instead of

                                           - 27 - 
 
 


                             “Navarro” when transcribing her notes several months after

the trial.

                             After receiving the court reporter’s notes and accompanying

affidavit, the district court held a hearing on Mr. Rijo’s motion

and, shortly thereafter, denied the motion in a written order.                                                   The

court              based              its           decision        on    the   court    reporter’s   filings,   the

parties’ pleadings and exhibits, and the court’s “own recollection

and notes of [Mr. Rijo’s] criminal trial.”21                                              Based on this evidence,

the court concluded that it was “100 percent certain that the revised

                                                               22
transcript [was] correct.”

                             The district court’s order thoroughly and persuasively

addressed each of Mr. Rijo’s arguments.                                                 In light of the court’s

careful consideration of this issue, we cannot conclude that its

decision to certify the revised transcript as part of the record on

appeal was plainly unreasonable.                                           See id.      Accordingly, we accept the

revised transcript as part of our record, and thus conclude that the

Government did not confuse Sandy Navarro with Mr. Rijo during its

closing argument.

                                                                          III

                                                                    CONCLUSION

                             The judgments of the district court are affirmed.

                             AFFIRMED
                                                            
21   R.635 at 9.
22   Id. at 15.  


                                                                         - 28 - 
 
