            United States Court of Appeals
                        For the First Circuit

No. 17-1104

                      UNITED STATES OF AMERICA,

                              Appellee,

                                  v.

                         JOSÉ IGNACIO GORIS,

                        Defendant, Appellant.


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF RHODE ISLAND

               [Hon. Mary M. Lisi, U.S. District Judge]
          [Hon. John J. McConnell, Jr., U.S. District Judge]


                                Before

                   Lynch and Selya, Circuit Judges,
                      and Levy, District Judge.


     Robert B. Mann, with whom Robert B. Mann Law Office was on
brief, for appellant.
     Donald C. Lockhart, Assistant United States Attorney, with
whom Stephen G. Dambruch, Acting United States Attorney, was on
brief, for appellee.


                          November 27, 2017




     
         Of the District of Maine, sitting by designation.
               SELYA, Circuit Judge.           Defendant-appellant José Ignacio

Goris, convicted of a drug-trafficking offense in the aftermath of

a government sting, strives to convince us that he should be

granted    a    new    trial     based    on    denied    discovery    and    alleged

instructional error.         We are not persuaded: after articulating the

standard for materiality pertaining to discovery in criminal cases

(a matter of first impression in this circuit), we uphold both the

district court's denial of the requested discovery and its jury

instructions.         Accordingly, we affirm.

I.   BACKGROUND

               We briefly rehearse the relevant facts and travel of the

case.     In the late spring and summer of 2014, the defendant was

the target of an elaborate sting operation undertaken by the Drug

Enforcement       Administration         (DEA).     Believing       himself     to   be

communicating         with   a   representative          of   a   "reputable"    drug

trafficker (an oxymoron of the first order), the defendant had

extensive discussions with an undercover DEA agent regarding his

purchase of one to five kilograms of cocaine.                      The "reputable"

drug trafficker had previously provided the defendant with subpar

product. Once bitten, twice shy, so the defendant dealt cautiously

with the trafficker's supposed representative (the undercover

agent).    While the defendant repeatedly told the undercover agent

that his goal was to purchase from one to five kilograms of




                                          - 2 -
cocaine, he insisted that he could not make a large purchase

without first testing the product.

            At a meeting in the agent's car, the defendant explained

that he wanted to take one kilogram of cocaine and test it.             If

the sample proved satisfactory, he would then consummate the

purchase.    Reaching back behind the seat, the defendant handled a

dummy kilogram that had been placed there by the agent and said,

"that feels good."      Later in the day, the two men met inside a

home improvement store and made arrangements for the final handoff:

the defendant would remove a brick of cocaine (approximately one

kilogram) from the agent's car and take it home for testing.

            The test never came to pass.            After the defendant

retrieved the brick (the dummy kilogram, as matters turned out)

from the agent's car, he was arrested on the spot.         A federal grand

jury subsequently charged him with attempting to possess 500 grams

or more of cocaine with intent to distribute.               See 21 U.S.C.

§ 841(a)(1).

            In   the   course   of    routine   pretrial   discovery,   the

government produced materials making clear its intention to offer

at trial the recorded conversations between the defendant and the

undercover agent, including the conversation that occurred on the

day of the defendant's arrest inside the home improvement store

(the August 14 recording).           The defendant moved for additional

discovery related to the August 14 recording, but the district


                                     - 3 -
court (Lisi, J.) denied his discovery motion on two grounds,

finding   that   materiality     had   not   been   shown    and   that   the

information sought was proprietary in nature.               For reasons not

relevant here, the case was reassigned to a different trier and,

immediately before the start of trial, the defendant effectively

renewed his discovery motion.      The district court (McConnell, J.)

refused to revisit the earlier ruling.

           At trial, the defense sought to persuade the jury that

the defendant never actually intended to purchase the cocaine but,

rather, merely wanted a sample of the drug for testing.                   The

defense also suggested that the August 14 recording had been

manipulated by the government and could not be considered credible.

The jury was unconvinced: it found that the defendant had attempted

to possess 500 grams or more of cocaine with intent to distribute.

Judge McConnell imposed a five-year term of immurement and this

timely appeal followed.

II.   ANALYSIS

           In    this   venue,   the   defendant,    represented     by   new

appellate counsel, advances two claims of error.            First, he argues

that the district court abused its discretion in denying his motion

to examine the original of the August 14 recording and the software

that generated and stored it.          Second, he finds fault with the

district court's instructions regarding the jury's duty to find,

beyond a reasonable doubt, that the defendant had attempted to


                                   - 4 -
possess 500 grams or more of cocaine with intent to distribute.

We discuss these claims of error sequentially.

                                  A.    Discovery.

               We begin with the defendant's plaint that the district

court       improperly   denied    his    request    for   additional   pretrial

discovery. That request was brought under Federal Rule of Criminal

Procedure 16, and a district court's determinations under Rule 16

are reviewed for abuse of discretion. See United States v. Correa-

Alicea, 585 F.3d 484, 493 (1st Cir. 2009).                 We caution, though,

that an abuse of discretion will not be found in this context

"unless the objecting party can show prejudice."               United States v.

Chiaradio, 684 F.3d 265, 276 (1st Cir. 2012) (citing United States

v. Spinosa, 982 F.2d 620, 631 (1st Cir. 1992)).

               In   criminal   cases,     standard   types    of   discovery   are

routinely exchanged shortly after the arraignment, without the

necessity of any motion.          See Fed. R. Crim. P. 16(a)-(b); D.R.I.

R. Cr. 16.       Where circumstances warrant, however, a defendant may

seek additional discovery.             To this end, Rule 16 provides that,

upon    a    defendant's   request,      "the    government   must   permit    the

defendant to inspect . . . data, . . . tangible objects, . . . or

copies or portions of any of these items, if the item is within

the government's possession, custody, or control" and "the item is

material to preparing the defense."              Fed. R. Crim. P. 16(a)(1)(E).

The defendant, as the moving party, bears the burden of showing


                                         - 5 -
materiality.      See United States v. Carrasquillo-Plaza, 873 F.2d

10, 12 (1st Cir. 1989).

              Although our court has not yet defined "materiality" in

this context, we do not write on a pristine page.                  The courts of

appeals have displayed remarkable uniformity in concluding that it

is not enough that what is sought "bears some abstract logical

relationship to the issues in the case."                United States v. Ross,

511    F.2d   757,   762   (5th   Cir.     1975).       Rather,    a    showing   of

materiality requires "some indication" that pretrial disclosure of

the    information     sought     "would        have   enabled    the     defendant

significantly to alter the quantum of proof in his favor."                   Id. at

763; accord United States v. Caro, 597 F.3d 608, 621 (4th Cir.

2010); United States v. Jordan, 316 F.3d 1215, 1251 (11th Cir.

2003); United States v. Graham, 83 F.3d 1466, 1474 (D.C. Cir.

1996); United States v. Maniktala, 934 F.2d 25, 28 (2d Cir. 1991);

United States v. Marshall, 532 F.2d 1279, 1285 (9th Cir. 1976).

This significant alteration may take place in a myriad of ways,

such    as     "uncovering      admissible        evidence,      aiding    witness

preparation, corroborating testimony, or assisting impeachment or

rebuttal."      United States v. Lloyd, 992 F.2d 348, 351 (D.C. Cir.

1993) (citations omitted).

              In order to uphold a district court's denial of a request

for    additional    discovery,     we     do    not   demand     epistemological

certainty that no discoverable information was withheld from the


                                     - 6 -
defendant.     See United States v. Rosario-Peralta, 199 F.3d 552,

559 (1st Cir. 1999).      If, say, a defendant's discovery request is

grounded in a speculative theory, a district court's decision to

deny that request is not an abuse of discretion.         See id.

             Here, the defendant premised his request for additional

discovery on the notion that the government had doctored or

otherwise manipulated the recorded conversations supporting its

case (and, specifically, that the August 14 recording had been

edited).     The district court prudently convened an evidentiary

hearing to give the defendant an opportunity to put some flesh on

this bare-boned allegation.        At the hearing, defense counsel

introduced expert testimony from a former law enforcement officer

that, based on his experience with recording technology, the moment

when the background noise fell to zero in the August 14 recording

might suggest that the recording had been modified.             On cross-

examination,    though,   the   witness's   experience   with   recording

technology proved to be of little value: despite his years in the

field, he was unfamiliar with the type of recording technology

employed in this case and had never used that technology.

             This lack of familiarity was a critically important

datum.     As explained in an affidavit submitted by the government

in the district court, the recording system used in this case

allowed agents to record communications digitally on a secure,

web-based platform, which the recording officer accessed through


                                  - 7 -
a cellular connection.         Once a recording was initiated, a unique

file would be created in the database. This file could be accessed

for playback through a web-based platform, but could not be deleted

or modified.        That the recording technology relied on cellular

transmissions left it at the mercy of the strength of the cellular

signal and, thus, explained the poor quality of the resulting

recordings (including the background noise falling to zero at

times).

             Nor   was   the   expert's    lack    of   familiarity      the   only

infirmity in the defendant's proffer.             At the hearing, the defense

offered no specific evidence of what the defendant purportedly had

said in the "missing" portions of the August 14 recording.                     This

gap in the proffer is telling because the defendant was available

to testify at the discovery hearing and presumably could have

supplied the missing information.

             Viewed against this backdrop, the district court hardly

can be faulted for denying the discovery request.                        With the

district     court's       endorsement     of     the   credibility       of   the

government's affidavit, the undermining of the defense's expert

testimony,    and    the    absence   of   any     attempt   to   fill    in    the

purportedly    missing      portion   of   the    recorded   conversation,       it

cannot plausibly be said that the district court abused its

discretion in concluding that the requested discovery would not

have tipped the balance on any relevant issue.               Put another way,


                                      - 8 -
the defendant failed to provide some indication that allowing the

discovery request "would have enabled [him] significantly to alter

the quantum of proof in his favor."1                Ross, 511 F.2d at 763.

Consequently,     the    district      court's   determination        that    the

defendant had failed to show materiality was well within the

encincture of its discretion.2         See id. at 762; see also Rosario-

Peralta, 199 F.3d at 559 (explaining that when an appellant does

"little more than speculate" as to what his discovery request may

yield, an appellate court "simply cannot hold that the district

court abused its discretion" in denying the request).

                            B.   Jury Instructions.

             The defendant's second claim of error implicates the

district     court's    instructions      regarding    the   jury's    duty   to

determine,    beyond    a    reasonable    doubt,     whether   the   defendant



     1 The defendant claims that he should have at least been given
access to the original version of the August 14 recording stored
in the database so that he could compare it to the copy he had
received from the government. But granting this request in the
absence of some indication of tampering would be highly unorthodox:
under Rule 16, a defendant has no absolute right, on demand, to
require the court to help him independently confirm the integrity
of materials produced in discovery. In the case at hand, we are
satisfied that the district court did not abuse its discretion
when it denied even this limited request based on its acceptance
of the government's affidavit indicating that the file could not
have been edited.
     2 Since we conclude that the district court did not abuse its
discretion in ruling that the defendant failed to show materiality,
we need not address the district court's alternative holding that
the additional discovery should be denied because the defendant's
request involved the production of proprietary information.


                                     - 9 -
attempted to possess at least 500 grams of cocaine with intent to

distribute.    The importance of the drug-quantity finding cannot be

overstated: it triggered a mandatory minimum sentence of five

years.   See 21 U.S.C. § 841(b)(1)(B).

             In the context of jury instructions, a preserved claim

of   error    alleging   that   the   judge    gave    the   jury   a   faulty

interpretation of the law is normally reviewed de novo. See United

States v. Sasso, 695 F.3d 25, 29 (1st Cir. 2012).            In contrast, a

preserved claim of error alleging that the judge did not adequately

explain the law or explained it in confusing terms is normally

reviewed for an abuse of discretion.          See United States v. Ranney,

298 F.3d 74, 79 (1st Cir. 2002).         Unpreserved objections of either

stripe are reviewed only for plain error.              See United States v.

Deppe, 509 F.3d 54, 58 (1st Cir. 2007).

             Although these nuanced standards of review are sometimes

difficult to apply, we are spared any such difficulty here.                   The

government has agreed, at least for argument's sake, both that the

defendant's claim of instructional error was preserved and that

appellate review of that claim is de novo. We proceed accordingly.

             Jury   instructions   are    meant   to   "furnish     a   set    of

directions composing, in the aggregate, the proper legal standards

to be applied by lay jurors in determining the issues that they

must resolve in a particular case."           United States v. DeStefano,

59 F.3d 1, 2 (1st Cir. 1995).         A reviewing court is tasked with


                                   - 10 -
examining whether those instructions, "taken as a whole, show a

tendency to confuse or mislead the jury with respect to the

applicable principles of law."        United States v. Phath, 144 F.3d

146, 149 (1st Cir. 1998) (quoting United States v. Fulmer, 108

F.3d 1486, 1494 (1st Cir. 1997)).            So long as that standard is

satisfied, the district court's choice of phrase is "largely a

matter of discretion."      DeStefano, 59 F.3d at 2.

           In order to convict the defendant, the jury had to find

beyond a reasonable doubt that he attempted to possess 500 grams

or more of cocaine with the intent to distribute.           The defendant

concedes that, at several points during its jury instructions, the

district court accurately delineated these requirements.            But in

the   defendant's   view,   these    correct   statements   were   obscured

beyond redemption by two other statements that the district court

made.   We turn to these other statements.

           To begin, the district court told the jury:

           For you to find Mr. Goris guilty of this crime,
           you must be convinced that the Government has
           proven each of the following things beyond a
           reasonable doubt: First, that on August 14th,
           2014, Mr. Goris attempted to possess 500 grams
           or more of cocaine; second, that Mr. Goris did
           so knowingly and intentionally; and third,
           that he did so with specific intent to
           distribute cocaine over which he had actual or
           constructive possession.       Now, it's not
           necessary for you to be convinced that Mr.
           Goris actually delivered the cocaine to
           someone else or that he made any money out of
           the transaction.      It is enough for the
           government to prove beyond a reasonable doubt


                                    - 11 -
             that he attempted to possess what he believed
             was cocaine and that he intended to transfer
             it or some of it to someone else.

The defendant complains that the last sentence in this passage

makes no mention of the need to prove that he had attempted to

possess 500 grams or more of cocaine.

             This plaint lacks any semblance of merit.        The sentence

complained     of   was   plainly   an   elaboration   on   the   preceding

instruction provided by the court.           To require a trial court to

bloat each statement in a jury instruction by incorporating within

it all the details of the charged offense is to deny the jury not

only the clarity of properly segmented instructions but also the

benefits of proper syntax.      We discern no error.

             The second statement upon which the defendant harps

occurred in a passage in which the district court told the jury:

             Let me finally now define knowledge of the
             controlled substance.    The Government must
             prove that the offense involved a particular
             type and quantity of drug and that Mr. Goris
             knew, believed, or intended that the offense
             involved 500 grams or more of cocaine.
             However, the Government does not have to prove
             that Mr. Goris knew, believed or intended that
             he was distributing or attempting to possess
             with intent to distribute that particular drug
             type or that particular quantity.     However,
             the Government must prove beyond a reasonable
             doubt that Mr. Goris knew, believed or
             intended that the offense involved 500 grams
             or more of cocaine.




                                    - 12 -
The defendant spotlights the third sentence in this passage,

arguing   that   it    "completely   undercuts"   the    court's   correct

instruction about the government's burden of proving the offense.

           We do not agree.      Read in context, the third sentence

was likely an attempt by the district court to clarify for the

jury that the government did not have to prove any exact drug

quantity (say, 525 grams) beyond a reasonable doubt.         In the last

analysis, though, we need not decide whether this single sentence,

read apart from the rest of the court's charge and stripped bare

of context, might be erroneous.      Jury instructions must be read as

a whole, not in some sort of splendid isolation. See United States

v. Pennue, 770 F.3d 985, 990 (1st Cir. 2014).             Thus, a single

sentence in a court's jury instructions cannot be yanked from its

contextual moorings and construed in a vacuum.          See United States

v. Gomez, 255 F.3d 31, 39 (1st Cir. 2001) (rejecting claim that

single sentence in otherwise "meticulous" instruction constituted

error and explaining that claim "focus[ed] the lens of inquiry too

narrowly").   Rather, a reviewing court must consider whether jury

instructions, taken as a whole, are reasonably likely to have

misled the jury.      See Phath, 144 F.3d at 149.

           In this case, the district court repeated, over and over

again — including immediately before and immediately after the

challenged sentence — that the government had to prove beyond a

reasonable doubt that the defendant knew, believed, or intended


                                 - 13 -
that the offense involved 500 grams or more of cocaine.                  The

defendant     readily   admits   that   the    district    court    properly

explained the jury's obligations several times throughout the

course of its jury instructions.              So, too, the verdict form

accurately conveyed that drug quantity was an element of the

offense.     Amidst this bevy of accurate statements, an argument

that   the    challenged    sentence    altered    the    meaning   of   the

instructions trenches on the frivolous.         This is simply not a case

where the jury was reasonably likely to have been misled by the

court's instructions.      See, e.g., Pennue, 770 F.3d at 990 (finding

fact that "erroneous instruction was followed immediately by a

correct instruction" weighed in favor of conclusion that jury was

not reasonably likely to have been misled as to applicable law).

III.   CONCLUSION

             We need go no further. We hold that the district court's

decision to deny the defendant's Rule 16 motion was not an abuse

of discretion.      We further hold that the district court's jury

instructions, taken as a whole, were not erroneous.          Consequently,

the judgment of the district court is



Affirmed.




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