          United States Court of Appeals
                        For the First Circuit


Nos. 16-2116, 17-2121

                    UNITED STATES OF AMERICA,

                              Appellee,

                                 v.

                   FRANCISCO MARTÍNEZ-MERCADO,

                        Defendant-Appellant.


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

         [Hon. Francisco A. Besosa, U.S. District Judge]


                               Before

                       Howard, Chief Judge,
              Thompson and Kayatta, Circuit Judges.


     Victor J. Gonzalez-Bothwell, with whom Eric Alexander Vos,
Federal Public Defender, District of Puerto Rico, Vivianne M.
Marrero, Assistant Federal Public Defender, Supervisor, Appeals
Section, and Andrew S. McCutcheon, Assistant Federal Public
Defender, were on brief, for appellant.
     Julia M. Meconiates, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.


                           March 25, 2019


	
            KAYATTA,    Circuit     Judge.       A    jury    found     Francisco

Martínez-Mercado guilty of conspiracy to deprive a person of civil

rights in violation of 18 U.S.C. § 241.              The district court then

sentenced him to eighty-seven months in prison.                       On appeal,

Martínez-Mercado     challenges      the    sufficiency      of   the   evidence

against him, the admission of evidence under Federal Rule of

Evidence 404(b), the exclusion of certain testimony, the denial of

his new-trial motion based on newly discovered evidence, and the

appropriateness of his sentence.             For the following reasons, we

affirm.

                                      I.

            Although we review the facts relevant to Martínez-Mercado's

sufficiency challenge in the light most favorable to the government,

we also "provide a more or less neutral summary" of the facts relevant

to his remaining claims and reserve further exposition of those facts

for our later analysis.       See United States v. Flores-Rivera, 787 F.3d

1, 9 (1st Cir. 2015).

            The events underlying Martínez-Mercado's conviction took

place in September of 2010.          At that time, Martínez-Mercado was

working as a Task Force Officer ("TFO") for the Bureau of Alcohol,

Tobacco, Firearms and Explosives ("ATF"). He had previously worked

in   the   Drugs   Division    of   the    Puerto    Rico    Police   Department

("PRPD"), where Jorge Fernández had been his supervisor.                     The

alleged conspiracy included PRPD officers Pedro López-Torres and



                                     - 2 -
Luis Ramos-Figueroa, both of whom eventually cut a deal and

testified on behalf of the government.

           At trial, López-Torres testified that on September 15,

2010, Fernández told López-Torres that Martínez-Mercado was "going

to do a job in the area[] of Carolina" and "need[ed] help in doing

that job."   Fernández and López-Torres had worked illegal "jobs"

together in the past, and López-Torres was conveniently serving in

the Property Division of the Carolina Criminal Investigations Unit

at the time. Based on Fernández's assurances that Martínez-Mercado

was trustworthy, López-Torres eventually agreed to take a call

from   Martínez-Mercado.    Martínez-Mercado   called   López-Torres

almost immediately, and they arranged to meet in person to discuss

the job.

           That same day, López-Torres contacted Ramos-Figueroa,

"[b]ecause he was the person that [López-Torres] trusted to do

. . . illegal jobs."   The two met up to talk about the potential

job in Carolina.   Ramos-Figueroa agreed to participate in whatever

scheme might unfold.

           Days later, López-Torres and Martínez-Mercado met at a

gas station to go over the details of the plan.         According to

López-Torres, Martínez-Mercado said he had hired "some thugs,

meaning street criminals," to break into an apartment to steal

"money, jewelry and controlled substances, drugs."         Martínez-

Mercado explained that the apartment belonged to someone who had


                               - 3 -
recently been arrested by ATF.           López-Torres agreed to provide

"security" and "communication" using his police patrol car and

radio.    López-Torres testified that he used his patrol car on jobs

so "that people would believe that a legal activity was being

conducted there by the police."             Additionally, if he heard a

complaint come in over the radio, he would warn his co-conspirators

and attempt to divert any potential investigation.

              On September 23, Martínez-Mercado called López-Torres to

tell him that they would execute the plan that evening.              López-

Torres relayed the information to Ramos-Figueroa.             While López-

Torres was on duty, he met up with Martínez-Mercado at around

7:00 p.m. in the parking lot of a local supermarket.                Ramos-

Figueroa joined them shortly thereafter.           Martínez-Mercado was

driving   a    mini-van,   and   both   López-Torres   and   Ramos-Figueroa

testified that they could see the silhouettes of at least two other

people in the back of the van.

              Following a signal from Martínez-Mercado, López-Torres

and Ramos-Figueroa drove out of the parking lot in López-Torres's

patrol car and trailed the van to the PlayaMar condominium complex.

López-Torres parked at the end of the street, while the van

remained in front of the building.          They watched as two or three

people jumped out of the van and entered the complex.                López-

Torres and Ramos-Figueroa kept their eyes on the van and listened




                                    - 4 -
to the police radio.         After they saw the van's interior lights

turn on, they left the area.

            When López-Torres and Martínez-Mercado reconvened as

planned, Martínez-Mercado handed López-Torres about $3,000 to

split with Ramos-Figueroa.        Martínez-Mercado explained that "there

wasn't that much" in the apartment, just "about $6,000 to $7,000

and some jewelry."

            López-Torres spoke with Martínez-Mercado over the phone

several     times    over   the   next   week.     During    one    of     those

conversations,      López-Torres    informed     Martínez-Mercado        that   a

complaint had been filed the day after the break-in.               The morning

of   September 24,      another     officer,     Josue    Cosme-Rosa,       took

photographs of the "ransacked" PlayaMar apartment and concluded

that the balcony door had likely been forced open.

            The district court allowed the government to introduce

so-called     "bad     acts"      evidence     under     Federal     Rule       of

Evidence 404(b), over objection, through the testimony of two

other former PRPD officers, Rafael Ramos-Veléz and Miguel Pagán.

The government also presented telephone records and historical

cell-site data.       This evidence confirmed that Martínez-Mercado,

Fernández, and López-Torres had been in contact by phone on

September 15 and showed nineteen calls between Martínez-Mercado

and López-Torres on the night of the Carolina job.            The cell-site




                                     - 5 -
data also showed that Martínez-Mercado's and López-Torres's cell

phones were in the area of the PlayaMar that night.

          Near the end of the case against him, Martínez-Mercado

alleged that the government delayed the production of an FBI

report, which detailed an interview with another PRPD officer,

Yaritza Cruz-Sánchez, who had investigated the PlayaMar complaint.

The district court determined that, although the report was not

disclosed until the day before trial, it was not exculpatory or

impeaching under Brady v. Maryland, 373 U.S. 83 (1963).    The court

did not permit the introduction of the report and also denied

Martínez-Mercado's request to issue a material-witness warrant for

Cruz-Sánchez.

          Martínez-Mercado takes issue with two further district

court actions during the presentation of his case.        First, the

district court excluded the testimony of ATF Agents Jean Carlos

Rivera and Julio Torres about an ATF investigation that Martínez-

Mercado contends would have accounted for his communications with

Fernández and López-Torres.   After hearing the agents' testimony

outside the presence of the jury, the court concluded that they

did not have any relevant information.      Second, although the

district court allowed Fernández to testify, the court advised him

of his Fifth Amendment rights three times, and Fernández invoked

his right against self-incrimination in response to questioning on

cross-examination.


                              - 6 -
             On February 26, 2016, after a five-day trial, the jury

found    Martínez-Mercado        guilty    of    conspiring    to   violate        civil

rights. The district court denied his renewed motion for acquittal

under    Federal    Rule   of    Criminal       Procedure 29    and    subsequently

denied each of his new-trial motions pursuant to Federal Rule of

Criminal Procedure 33.

                                          II.

                                          A.

             Martínez-Mercado appeals the denial of his motions for

judgment of acquittal based on the insufficiency of the evidence.

See Fed. R. Crim. P. 29(a).           We review a district court's denial

of a Rule 29 motion de novo, asking "whether, after assaying all

the evidence in the light most amiable to the government, and

taking     all    reasonable     inferences       in   its    favor,    a    rational

factfinder       could   find,    beyond    a    reasonable     doubt,       that    the

prosecution successfully proved the essential elements of the

crime."    United States v. George, 841 F.3d 55, 61 (1st Cir. 2016)

(quoting United States v. Chiaradio, 684 F.3d 265, 281 (1st Cir.

2012)).

             A   section 241      conspiracy      exists     when     "two    or    more

persons conspire to injure, oppress, threaten, or intimidate any

person . . . in the free exercise or enjoyment of any right or

privilege secured to him by the Constitution or laws of the United

States."     18 U.S.C. § 241.        In this case, the federal right at


                                      - 7 -
issue is the right to be free from unreasonable searches and

seizures under the Fourth Amendment.                Accordingly, to convict

Martínez-Mercado,      the    government       needed   to     prove    beyond     a

reasonable    doubt    that    he     "1) conspired     to   injure,     oppress,

threaten,    or   intimidate    [the    victim],     2) with    the    intent    to

interfere with the victim's [Fourth Amendment] rights, 3) under

color of [Commonwealth] law."          United States v. Cortés-Cabán, 691

F.3d 1, 13 (1st Cir. 2012) (quoting United States v. Guidry, 456

F.3d 493, 507 (5th Cir. 2006)); see also United States v. Lebron-

Gonzalez, 816 F.2d 823, 829 (1st Cir. 1987) ("Although section 241

does not specify a 'color of law' requirement, the Fourteenth

Amendment requires it."        (citing United States v. Price, 383 U.S.

787, 799 (1966))).

             Martínez-Mercado argues that the conspirators did not

act under color of law.        He also argues that, even if they did act

under color of law, there could be no Fourth Amendment violation

without more evidence from an identifiable victim.                     We address

these two arguments in turn.

                                        1.

             Martínez-Mercado's        primary      argument     is    that      the

government    failed   to     prove    that    he   conspired     to    commit    a

constitutional violation "under color of law." In truth, Martínez-

Mercado's complaint seems to be that the alleged conspiracy was

never to orchestrate an illegal seizure under color of law; rather,


                                       - 8 -
the plan was for a band of hired "thugs" -- unmistakably private

actors -- to break into the condominium and steal valuables inside.

To be sure, Martínez-Mercado does not suggest that the mere

involvement of private individuals precludes prosecution under

section 241, as any such argument would inevitably prove futile.

See Price, 383 U.S. at 794 ("Private persons, jointly engaged with

state officials in the prohibited action, are acting 'under color'

of law for purposes of [section 241]."); United States v. Aponte-

Sobrado, 847 F. Supp. 2d 316, 319–20 (D.P.R. 2012).                  Nor can he

successfully argue that his failure to conceive of the heist in

constitutional terms provides any defense.                     Screws v. United

States, 325 U.S. 91, 106 (1945) (making clear that "[t]he fact

that the defendants may not have been thinking in constitutional

terms is not material where their aim was . . . to deprive a

citizen    of   a   right    and     that    right   was   protected    by     the

Constitution").

           Still, the "acts of officers in the ambit of their

personal   pursuits    are   plainly        excluded"   from    liability    under

section 241.    Id. at 111.        "[P]rivate conduct, outside the line of

duty and unaided by any indicia of actual or ostensible state

authority, is not conduct occurring under color of state law."

Martinez v. Colon, 54 F.3d 980, 986–87 (1st Cir. 1995).                Although

courts have had frequent occasion to interpret section 1983's

"color of law" requirement, "there is no bright line test for


                                      - 9 -
distinguishing 'personal pursuits' from activities taken under

color of law."    Pitchell v. Callan, 13 F.3d 545, 548 (2d Cir.

1994); see also Price, 383 U.S. at 794 n.7 (noting that, in section

1983 cases, "'under color' of law has consistently been treated as

the same thing as the 'state action' required under the Fourteenth

Amendment").   We have previously instructed that a state actor

does not act under color of law unless his "conduct occurs in the

course of performing an actual or apparent duty of his office, or

unless the conduct is such that the actor could not have behaved

in that way but for the authority of his office."     Martinez, 54

F.3d at 986; see also United States v. Classic, 313 U.S. 299, 326

(1941) ("Misuse of power, possessed by virtue of state law and

made possible only because the wrongdoer is clothed with the

authority of state law, is action taken 'under color of' state

law.").

           More specifically, this court trains its attention "on

the nature and circumstances of the officer's conduct and the

relationship of that conduct to the performance of his official

duties."   Martinez, 54 F.3d at 986.     "The key determinant is

whether the actor . . . purposes to act in an official capacity or

to exercise official responsibilities pursuant to state law." Id.;

see also Barreto-Rivera v. Medina-Vargas, 168 F.3d 42, 45 (1st

Cir. 1999) ("While certain factors will clearly be relevant -- for

example, a police officer's garb, an officer's duty status, the


                              - 10 -
officer's use of a service revolver, and the location of the

incident -- these factors must not be assessed mechanically.");

Parrilla-Burgos v. Hernandez-Rivera, 108 F.3d 445, 449 (1st Cir.

1997)    (listing   the   same   factors).       Martínez-Mercado    argues,

therefore, that the conspiracy at issue here did not involve

conduct committed in the performance of any actual or pretended

official duty.

            The facts show otherwise.           The conspirators literally

employed the colors of the law in the form of a marked on-duty

police vehicle to do what no private individual could do -- divert

private and police interlopers by creating the appearance of

legitimate police involvement.          The plan also addressed the risk

of a citizen call to the police by exploiting López-Torres's

official capacity to forestall any investigation at the scene.

López-Torres and Ramos-Figueroa were part of the conspiracy and

present at the scene of the heist precisely because they possessed

the     official    authority    to    ensure    that   it   would   proceed

uninterrupted.      This was surely enough to support a jury finding

that the conspirators acted under color of law.          See United States

v. Hatch, 434 F.3d 1, 4 (1st Cir. 2006) (noting that in deciding

a sufficiency challenge courts "must only satisfy [themselves]

that the guilty verdict finds support in a plausible rendition of

the record").




                                      - 11 -
                                       2.

             Martínez-Mercado also argues that the government failed

to prove a Fourth Amendment violation because it did not identify

any actual victim who had a "reasonable expectation of privacy" in

the PlayaMar condominium.          See Katz v. United States, 389 U.S.

347,   360    (1967)    (Harlan,   J.,      concurring).        Certainly,    the

government needed to show that the conspirators tried to violate

some person's right to be free from an unlawful search and seizure.

But the government did this.             It presented evidence that the

condominium was a home, and a locked one at that.               It also put in

evidence that Martínez-Mercado knew that the home belonged to a

recently arrested person. As the U.S. Supreme Court has explained,

"[w]ithout question, the home is accorded the full range of Fourth

Amendment protections."       Lewis v. United States, 385 U.S. 206, 211

(1966).      There is simply no blanket requirement that the victim

testify.       See     Cortés-Cabán,     691   F.3d   at   13    (noting     that

"circumstantial evidence will suffice" to establish the elements

of a conspiracy).        The government presented sufficient evidence

for the jury to reasonably infer that Martínez-Mercado conspired

to violate the Fourth Amendment rights of whoever lived in the

targeted apartment.

                                       B.

             Martínez-Mercado next argues that the district court

misinterpreted the scope of Federal Rule of Evidence 404 and then


                                    - 12 -
improperly admitted the testimony of two government witnesses

under   that     rule.          Although    we    review     the   district      court's

application of Rule 404 for abuse of discretion, when there is an

allegation that "the district court misapprehended the scope of

the Rules it was applying," we review its legal interpretations de

novo.    United States v. Gilbert, 229 F.3d 15, 20–21 (1st Cir.

2000); Olsen v. Correiro, 189 F.3d 52, 58 (1st Cir. 1999) ("The

proper interpretation of the Federal Rules of Evidence is a

question of law and is reviewed de novo.").

               Rule 404 dictates 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).               But

Rule 404    also       specifies    that     evidence       of   prior    acts    may    be

admissible to prove "motive, opportunity, intent, preparation,

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

accident."       Fed. R. Evid. 404(b)(2).             We have formulated a two-

part    test     for    determining        the    admissibility      of    Rule 404(b)

evidence.       First, a court must determine whether the evidence has

some "special relevance" independent of its tendency to show

criminal propensity.            United States v. Rodriguez-Barrios, 573 F.3d

55, 64 (1st Cir. 2009) (citing United States v. Aguilar-Aranceta,

58 F.3d 796, 798 (1st Cir. 1995)).                   Second, if the evidence has

some such relevance, the court must then decide whether its


                                        - 13 -
probative value is substantially outweighed by the danger of unfair

prejudice.     Id.   And probative value "must be considered in light

of the remoteness in time of the other act and the degree of

resemblance to the crime charged."        United States v. Frankhauser,

80 F.3d 641, 648 (1st Cir. 1996) (quoting United States v. Fields,

871 F.2d 188, 197 (1st Cir. 1989)).

             The district court allowed two government witnesses --

PRPD officers Pagán and Ramos-Veléz -- to testify, over repeated

defense objections, about two prior uncompleted conspiracies that

allegedly involved Martínez-Mercado.         The government summarized

that evidence as follows in its pretrial notice of intent to

introduce evidence of other bad acts:

             1.   In or about December of 2010, [while
             defendant was employed as a TFO for ATF],
             defendant, along with other Puerto Rico police
             officers entered a conspiracy to steal money
             and/or drugs from a house located in Santurce,
             San Juan, Puerto Rico, under color of
             law. . . . The plan included staying outside
             the location while other individuals entered
             the house dressed as police officers to
             conduct the robbery. Their contingency plan
             included identifying themselves as [PRPD
             officers] from the Criminal Investigations
             Division . . . .

             2.   On a date unknown, but while defendant
             was employed as a TFO for ATF, defendant
             entered a conspiracy with at least one known
             Puerto Rico police officer to steal money
             and/or drugs from a house in Carolina, Puerto
             Rico, under color of law.




                                 - 14 -
          Both plots were ultimately abandoned.     At trial, Pagán

testified that the first plot involved the execution of an "illegal

warrant" and that he was charged with staying "in front of the

house with the police patrol car."   Ramos-Veléz confirmed that the

first plot also contemplated the presence of a "marked patrol car."

The only relevant testimony as to the second plot was that Ramos-

Veléz and Martínez-Mercado called it off after they noticed that

the house in Carolina was armed with security cameras.

          The government argued to the district court that its

evidence of the two prior conspiracies was admissible "to show

that the Defendant had a common scheme or plan" that "involved

conducting robberies of homes . . . and that he hired other police

officers to . . . assist him in their marked patrol units or, as

a contingency plan, should they be detected either by an owner of

the apartment or by somebody in the vicinity of the area, to secure

the success of the operation."     Accordingly, the district court

admitted that evidence as proof of a "common scheme or plan."

          But the proffered bad acts did not reveal "a continuing

or connected scheme" linking the prior alleged conspiracies to the

instant conspiracy.    United States v. Lynn, 856 F.2d 430, 435 (1st

Cir. 1988); see also United States v. Varoudakis, 233 F.3d 113,

119 (1st Cir. 2000).    Rather, Pagán's and Ramos-Veléz's testimony

showed several such plans, rather than a single common scheme or

plan.


                               - 15 -
               The government alternatively argues that the evidence

was "specially relevant" to prove Martínez-Mercado's intent.                      The

government, though, does not articulate how Martínez-Mercado's

alleged participation in arranging the two uncharged conspiracies

is relevant to whether he had the requisite intent to conspire to

interfere with a known federal right in this case.                        See United

States    v.    Guest,    383    U.S.   745,   760    (1966)    (noting    that   the

conspiracy charge requires proof of "specific intent").                     Although

this   court     has     maintained     that   when    bad     acts    evidence    "is

introduced to show knowledge, motive, or intent, the Rule 404(b)

exceptions . . . have been construed broadly," United States v.

Flores Perez, 849 F.2d 1, 4 (1st Cir. 1988), we need be cautioned

that "the relevance of a prior conviction admitted to prove

'intent' . . . may rest on little more than propensity," United

States v. Henry, 848 F.3d 1, 15 (1st Cir. 2017) (Kayatta, J.,

concurring).        In    this   case,   it    is    difficult    to    escape    such

propensity-based         reasoning.       As     Martínez-Mercado       avers,    the

government's evidence of bad acts broadly highlighted his alleged

past corrupt associations with fellow police officers, inviting

the jury to generalize this bad behavior into "bad character and

[to] tak[e] that as raising the odds that he did the later bad act

now charged."          Old Chief v. United States, 519 U.S. 172, 180

(1997).    This is precisely what the rule seeks to avoid.




                                        - 16 -
             The government also arguably suggests that the evidence

established Martínez-Mercado's "identity" or "modus operandi" by

highlighting       the   similarity        between     the   prior        acts    and   the

September 2010 Carolina job.                   For Rule 404(b) evidence to be

admitted to prove modus operandi, the government must show "a high

degree of similarity between the other act and the charged crime."

United States v. Trenkler, 61 F.3d 45, 52 (1st Cir. 1995) (citing

United States v. Ingraham, 832 F.2d 229, 231–33 (1987)).                                The

government     "must      demonstrate          that   the    two    acts     exhibit      a

commonality of distinguishing features sufficient to earmark them

as the handiwork of the same individual."                          Id. at 53 (citing

Ingraham, 832 F.2d at 231).                    Moreover, under Federal Rule of

Evidence 104(b), district courts must condition the admission of

modus   operandi         evidence        "on    a     showing      that     the    shared

characteristics of the other act and the charged offense are

sufficiently idiosyncratic that a reasonable jury could find it

more likely than not that the same person performed them both."

Id.   In resolving whether the evidence supports an inference that

the incidents are "sufficiently idiosyncratic," the inquiry "must

focus   on   the    'totality       of    the    comparison,'       demanding       not   a

'facsimile or exact replica' but rather the 'conjunction of several

identifying    characteristics            or    the    presence      of    some    highly

distinctive quality.'"         Id. at 54 (quoting Ingraham, 832 F.2d at

232–33).


                                          - 17 -
          The government points to the use of a marked patrol car

parked outside the location of the planned heist as such a "highly

distinctive quality."    Of course, that identifying feature was

said to be present in only one of the two prior conspiracies.    As

to that conspiracy, the testimony did indeed describe a plan to

park a patrol vehicle outside the location to be robbed.    But the

plan as described otherwise markedly differed from the heist that

gave rise to this prosecution, most notably because it involved

the use of "an illegal warrant."     Nor was there any participation

of private individuals or even a break-in.      As Pagán explained:

"We were just going to appear there and knock that door down, go

inside the house and arrest the woman, take . . . whatever she had

there."   Given the differences, it is as if the government were

pointing to the use of a ball in both a cricket match and a baseball

game as proof of modus operandi for a particular player.    There is

a common factor but not one that is so unusual and distinctive as

to make two otherwise quite different methods of operation appear

to be the mark of a single person.    See Ingraham, 832 F.2d at 233;

see also United States v. Pisari, 636 F.2d 855, 859 (1st Cir. 1981)

("The single fact that in committing a robbery, one invokes the

threat of using a knife falls far short of a sufficient signature

or trademark upon which to posit an inference of identity.").    We

cannot say, therefore, that the prior bad acts were "specially




                              - 18 -
relevant" as evidence of modus operandi.       For these reasons, the

admission of the prior bad acts was erroneous.

          Nevertheless,   we   hold     that   the   district   court's

erroneous admission of the bad acts evidence was harmless.        While

we once again underscore "the folly of bad act overkill," United

States v. Arias-Montoya, 967 F.2d 708, 714 (1st Cir. 1992), in

this case we can determine "with fair assurance . . . that the

judgment was not substantially swayed" by the district court's

error, Kotteakos v. United States, 328 U.S. 750, 765 (1946); see

also United States v. Hicks, 575 F.3d 130, 143 (1st Cir. 2009)

("We   review    non-constitutional       evidentiary    errors     for

harmlessness; an error is harmless if it is 'highly probable that

the error did not influence the verdict.'"     (quoting United States

v. Roberson, 459 F.3d 39, 49 (1st Cir. 2006))).         The cell phone

records and location information corroborated the central gist of

the cooperators' testimony.    It confirmed the initial contacts

between the conspirators, and it solidly placed Martínez-Mercado

in the neighborhood of the home invasion in repeated communications

with López-Torres without any conceivable innocent explanation.

We therefore decline to hold that the admission of the Rule 404(b)

evidence was prejudicial error.

                                  C.

          Martínez-Mercado further claims that the district court

violated his rights under the Sixth Amendment's Compulsory Process


                               - 19 -
Clause and the Fourteenth Amendment's Due Process Clause in three

ways.   First, he argues that the district court undermined his

right to present a meaningful and complete defense by excluding

the testimony of two ATF agents.      Second, he contends that the

court erroneously ruled that the government's production of an FBI

302 Report on the eve of trial detailing an interview with Officer

Yaritza Cruz-Sánchez was not a Brady violation.       The court then

compounded that error, Martínez-Mercado claims, by refusing to

authorize a material-witness warrant for Officer Cruz-Sánchez and

by excluding the 302 Report itself.       Lastly, Martínez-Mercado

asserts that the court intimidated Jorge Fernández by repeatedly

advising him of his Fifth Amendment rights.

                                 1.

          Martínez-Mercado first complains that the district court

excluded the proffered testimony of two ATF agents.    In support of

his proffer, Martínez-Mercado represented that the agents would

testify that Martínez-Mercado was tasked with investigating an ATF

cooperating witness in an unrelated matter.   That task, he argued,

gave him a perfectly legitimate reason to be communicating with

Fernández and López-Torres on September 15 because they might have

"worked with this confidential informant before."         But one of

Martínez-Mercado's   proffered   witnesses    indicated    that   the

investigation of the cooperator did not commence until after the

cooperator's arrest on September 20. And the other witness offered


                             - 20 -
no alternative chronology. In light of that chronological mismatch

between the asserted theory or relevance and the actual testimony,

the district court sensibly concluded that the testimony was not

reasonably capable of establishing the relevant point Martínez-

Mercado hoped to establish.              We see no reason to upset that

determination.     See Pike v. Guarino, 492 F.3d 61, 78 (1st Cir.

2007)   ("Although       the     right    to     present    a     defense       is   of

constitutional dimension, it is not absolute."                     (citing Nix v.

Whiteside, 475 U.S. 157, 173 (1986))); United States v. Brandon,

17 F.3d 409, 444 (1st Cir. 1994) (noting that the district court

has "broad discretion in making relevancy determinations").1

                                         2.

           Martínez-Mercado           advances    several       related   arguments

concerning the trial court's treatment of a so-called 302 Report

summarizing   an   FBI    interview      with    PRPD   officer     Cruz-Sánchez.

During the interview, Cruz-Sánchez stated that (1) a person other

than the owner of the condominium first called in the burglary;

and   (2) López-Torres         told   Cruz-Sánchez      that     "they    had    taken

material (referring to drugs) and money" from the apartment.

Martínez-Mercado argues on appeal that the late production of this


1Martínez-Mercado argues on appeal that even with the September 20
arrest date, he might have started investigating the witness before
his arrest. But he did not make this argument at trial, so plain
error review applies, see United States v. Sánchez-Berríos, 424
F.3d 65, 78 (1st Cir. 2005), and there is no clear error because
his proffered testimony does not clearly back up this theory.


                                       - 21 -
report (on the eve of trial) was a Brady violation and that the

court should have admitted the report into evidence or compelled

Officer Cruz-Sánchez to testify.

             The    district        court     viewed       the   report      as    largely

irrelevant    and     at     best      marginally      impeaching       on    collateral

matters.      We     see   no    unreasonableness           in   that   determination.

Martínez-Mercado does not attempt to explain how who reported the

burglary is even relevant to his defense.                    He claims only that it

"refuted the testimony of Josue Cosme-Rosa," who did testify that

"the complainant himself . . . gave [the PRPD] access [to the

parking lot]."       Cosme-Rosa's testimony, however, had nothing to do

with who reported the break-in.               It is not clear that the identity

of the initial complainant is at all material to Martínez-Mercado's

defense.

             The    district        court     also    aptly      explained        away   any

superficial    inconsistency           between       the    302 Report       and    López-

Torres's     trial     testimony.           That     is,     although     López-Torres

testified that Martínez-Mercado told him that only money and

jewelry    were      taken      from    the    apartment,        López-Torres        never

testified as to his own knowledge of what was stolen.                              Besides,

the fact that López-Torres told Officer Cruz-Sánchez that drugs

were taken from the apartment does not suggest, as Martínez-Mercado

claims,    that    López-Torres         "planned       or    executed     the      crime."

Moreover, as the district court observed, evidence as to how the


                                         - 22 -
robbery was carried out would have been irrelevant to Martínez-

Mercado's defense because he was charged with a conspiracy offense

that does not require an overt act by him.              See United States v.

Crochiere, 129 F.3d 233, 234, 238–39 (1st Cir. 1997) (holding that

18 U.S.C. § 241 does not require an overt act in furtherance of

the conspiracy).

            Our    conclusion    that    the      district     court   reasonably

assessed    the    proffered    evidence     as    at   best      marginally    and

collaterally relevant dooms Martínez-Mercado's trio of arguments.

We review the denial of a new-trial motion on the basis of an

alleged Brady violation for manifest abuse of discretion.                 United

States v. Morales-Rodriguez, 467 F.3d 1, 14 (1st Cir. 2006).                    And

there is no Brady violation compelling a new trial when the

belatedly supplied evidence is merely cumulative or impeaching on

a collateral issue.         Conley v. United States, 415 F.3d 183, 189

(1st Cir. 2005).      Similarly, we review for abuse of discretion a

decision    to    exclude   evidence    as   cumulative      or    insufficiently

relevant.    Brandon, 17 F.3d at 444.             And there is no such abuse

when the evidence is at once both cumulative and relevant only

arguably to contradict other evidence on peripheral issues.                    Id.2




2 From our conclusion that these evidentiary rulings were not an
abuse of discretion, it follows that the district court's exclusion
of   Sánchez-Cruz's   testimony   and   the  302 Report   was   not
constitutional error.


                                   - 23 -
                                    3.

           Martínez-Mercado's      witness-intimidation          claim    also

fails.3   The district court properly advised Fernández of his Fifth

Amendment rights.     See United States v. Santiago-Becerril, 130

F.3d 11, 26 (1st Cir. 1997) ("A judge is entitled to make sure a

witness understands [his] Fifth Amendment rights.").             The district

court rightly noted that it did not "actively encourage[] a witness

not to testify or badger[] a witness into remaining silent."

United States v. Arthur, 949 F.2d 211, 216 (6th Cir. 1991).

Martínez-Mercado    takes    particular    issue    with   the    fact   that,

although the court first read the witness his rights outside the

presence of the jury, the judge subsequently "informed Fernández

of his ability to invoke his 'rights' on no less than three

occasions."    It is obvious from the trial transcript, however,

that the witness became confused and needed clarification of the

judge's proper warning.        The court had little choice but to

instruct him further.       What's more, as the district court found,

Fernández "testified fully" for Martínez-Mercado on direct and

only invoked his right to remain silent during parts of the

government's   cross-examination.          United   States   v.    Martínez-

Mercado, No. CR 15-576 (FAB), 2016 WL 8674489, at *11 (D.P.R.

June 17, 2016).     The district court did not inhibit Martínez-


3 In his post-trial motions, Martínez-Mercado framed this issue as
a judicial-bias claim.


                                  - 24 -
Mercado's right to present a meaningful defense.

                                        D.

          Martínez-Mercado next argues that the district court

abused its discretion by denying his second new-trial motion based

on newly discovered evidence.          See Fed. R. Crim. P. 33.       We review

the   denial   of   a     new-trial     motion     for   "manifest    abuse    of

discretion."   United States v. Carpenter, 781 F.3d 599, 608 (1st

Cir. 2015) (citing United States v. Wright, 625 F.2d 1017, 1019

(1st Cir. 1980)).       A court may grant a motion for a new trial based

on newly discovered evidence if

          (1) the evidence was unknown or unavailable to
          the   defendant   at   the  time   of   trial;
          (2) failure to learn of it was not because of
          lack of due diligence; (3) the evidence is
          material, and not merely cumulative or
          impeaching; and (4) it will probably result in
          acquittal upon retrial.

Carpenter, 781 F.3d at 621 (citing Wright, 625 F.2d at 1019); see

also United States v. Hernández-Rodríguez, 443 F.3d 138, 143 (1st

Cir. 2006) ("[W]e have no discretion to grant a motion for a new

trial if any one of the four factors is lacking.").                  Since both

sides agree that the first two prongs of the so-called Wright test

are satisfied, we address only the latter two.

          On   December 16,      2016,       the   government   disclosed     two

additional FBI 302 Reports summarizing information provided by

Metropolitan Detention Center inmates Arnaldo López-Ortiz and

Osvaldo Vasquez-Ruiz.        Martínez-Mercado argues in his brief that


                                      - 25 -
these reports, as well as a subsequent telephone interview with

Nadab Arroyo-Rosa (another federal inmate), suggest that López-

Torres and Ramos-Figueroa "(1) coordinated fraudulent testimony

designed     to   secure   the    conviction    of     Mr.    Martínez-Mercado;

(2) testified      falsely       and    fraudulently         at   [trial];   and

(3) deliberately misled prosecutors during debriefings."                     The

district court concluded that Martínez-Mercado failed to establish

that the newly discovered evidence was material as required by the

third prong.      United States v. Martínez-Mercado, 261 F. Supp. 3d

293, 306 (D.P.R. 2017).

             New evidence is "material" when "it has the potential

'to alter the outcome of the lawsuit under applicable legal

tenets.'"    United States v. Hernández-Rodríguez, 443 F.3d 138, 145

(1st Cir. 2006) (quoting Roche v. John Hancock Mut. Life Ins. Co.,

81 F.3d 249, 253 (1st Cir. 1996)).          Newly discovered evidence that

is merely impeaching, however, "normally cannot form the basis for

a new trial."         United States v. Colón-Muñoz, 318 F.3d 348, 361

(1st Cir. 2003) (quoting United States v. Bonadonna, 775 F.2d 949,

957 (8th Cir. 1985)).       Martínez-Mercado counters that "[t]he value

of the evidence was not simply to show that López-Torres and Ramos-

Figueroa were generally liars and perjured themselves in the past,"

but   that    "[i]t    demonstrated      they   were   actively     fabricating

testimony in this case in order to receive a sentence reduction."




                                       - 26 -
            The   reports    summarize    the   inmates'   claim   that   they

overheard the two cooperating conspirators in this case (López-

Torres and Ramos-Figueroa) talking about coordinating testimony.

According    to      the   inmates,    López-Torres    and   Ramos-Figueroa

discussed "getting a story straight" having to do with a firearm

and the possibility that cameras might show them to be someplace

on some occasion other than where they claimed to be.              One inmate

allegedly mentioned that if the prosecutors found out that López-

Torres and Ramos-Figueroa were concocting a false story, the "other

guy" (presumably, thought the FBI agents, the person against whom

López-Torres and Ramos-Figueroa were going to testify) would walk.

The government was unable to provide any further information about

the context in which these broad statements were made or when the

conversation took place.       Martínez-Mercado further argues that one

of   the   inmates    "specifically     confirmed   that   López-Torres   and

Ramos-Figueroa discussed concocting false and fraudulent testimony

on one or more occasions."

            The materiality of the newly discovered evidence depends

on whether a jury would probably presume that López-Torres and

Ramos-Figueroa were discussing Martínez-Mercado's case in a manner

that suggests perhaps a frame.         The district court answered in the

negative, and we find no abuse of discretion in that determination.

Although, as Martínez-Mercado notes, the district court conceded

that "[t]he information in the 302 reports suggest[s] that López-


                                      - 27 -
Torres and Ramos-Figueroa concocted testimony," Martínez-Mercado,

261 F. Supp. 3d at 305, the court never stated that the "concocted

testimony" related to this case.          On this point, Martínez-Mercado

asserts that, "López-Torres and Ramos-Figueroa did not testify at

any other trials or in-court legal proceedings."               But nothing in

the reports suggests that the reference to "testimony" was limited

to trial testimony in this case, as opposed to statements provided

to FBI agents and prosecutors in other cases. Further, the reports

describe the conversation as covering a withheld firearm and

cameras   at      various   locations,    significant    details   that     have

nothing at all to do with this case.

             For purposes of this appeal, we can nevertheless assume

without deciding that the proffered evidence was "material," and

not irrelevant or merely impeaching.           That assumption brings us to

the fourth prong:       Would the evidence "probably" have altered the

result?      We    think    not.   As    we   have   already   explained,    the

government's case against Martínez-Mercado was not reasonably

vulnerable to an enhanced credibility attack on the cooperating

witnesses.     It is undisputed that the break-in occurred and that

the cell phone evidence placed Martínez-Mercado both in timely

repeated communication with López-Torres and in the area of the

crime without any suggestion in the record that either of them had

any legitimate reason to be there (much less talking to one

another) at that time.         There was no testimony at trial about any


                                    - 28 -
camera or firearm.    And, had there been, we see no reasonable

likelihood that any such evidence could be viewed as exculpatory.

The evidence contained in the 302 reports and corroborated by

Arroyo-Rosa's interview was not "sufficiently compelling that it

would probably result in an acquittal."       United States v. Alicea,

205 F.3d 480, 487 (1st Cir. 2000).

                                 E.

          Finally, Martínez-Mercado argues that his sentence was

procedurally unreasonable.     The court below calculated a total

offense level of twenty-seven and a criminal history category of

I, resulting in a guidelines range of seventy to eighty-seven

months, and sentenced Martínez-Mercado to eighty-seven months in

federal prison.    We review sentencing decisions for abuse of

discretion,   examining   findings    of   fact   for   clear   error   and

interpretations of the sentencing guidelines de novo.              United

States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013).

          The district court correctly calculated a base offense

level of seventeen by referencing U.S.S.G. § 2B2.1 pursuant to

U.S.S.G § 2H1.1(a)(1), which instructs the court to apply the

offense guideline applicable to any underlying offense.         Here, the

conduct underlying Martínez-Mercado's conviction for conspiring to

violate civil rights was burglary of a residence, so U.S.S.G.

§ 2B2.1(a)(1) dictated a base level of seventeen.




                               - 29 -
             The district court increased the base level by six levels

under U.S.S.G. § 2H1.1(b)(1), which applies when the defendant

"was a public official at the time of the offense" or "the offense

was committed under color of law." For the reasons we have already

explained,    there   was   no   error   in    finding   the   terms   of   that

enhancement satisfied.

             Under U.S.S.G. § 3B1.1(a), the district court increased

the base level by an additional four levels because "the defendant

was an organizer or leader of a criminal activity that involved

five or more participants."        The government presented evidence at

trial demonstrating that the alleged conspiracy involved Martínez-

Mercado, Fernández, López-Torres, Ramos-Figueroa, and at least two

"thugs."      And,    contrary   to    Martínez-Mercado's      assertions    on

appeal, the amended presentence report reflected as much.                   The

district court did not abuse its discretion at sentencing.

                                       III.

             Finding the evidence sufficient to sustain Martínez-

Mercado's conviction, and finding no other reversible error, we

affirm the conviction and sentence.




                                      - 30 -
