          United States Court of Appeals
                     For the First Circuit


No. 19-1232

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                    MOUSFAFA MOATAZ ABOSHADY,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Nathaniel M. Gorton, U.S. District Judge]


                             Before

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


     Joshua N. Ruby, with whom Peter E. Gelhaar, George W. Vien,
and Donnelly, Conroy & Gelhaar, LLP were on brief, for appellant.
     Ross B. Goldman, Attorney, United States Department of
Justice, Criminal Division, with whom Andrew E. Lelling, United
States Attorney, David G. Lazarus, Assistant United States
Attorney, Abraham R. George, Assistant United States Attorney,
Brian A. Benczkowski, Assistant Attorney General, and Matthew S.
Miner, Deputy Assistant Attorney General, were on brief, for
appellee.
February 20, 2020
           BARRON, Circuit Judge. Moustafa Aboshady ("Aboshady")

challenges his 2018 federal convictions arising from a healthcare

fraud conspiracy.      We affirm.

                                          I.

           In March 2014, Fathalla Mashali, Aboshady's uncle, was

indicted and, in 2017, he pleaded guilty in the United States

District Court for the District of Massachusetts to a multi-

million-dollar healthcare fraud that he perpetrated through New

England Pain Associates ("NEPA"), which Mashali owned.                      Mashali

committed this fraud against both government and private insurers

by   coordinating    the    fraudulent         documentation      of   non-existent

medical   services     in       patients'        medical   records     to   justify

reimbursement for services not rendered.

           From 2010 to 2013, Aboshady worked for Mashali in the

billing   department       of    NEPA,    which     had    four   clinical    pain-

management offices in New England, though its billing office was

located in Cairo, Egypt.          When billers would send audit requests,

employees in the billing department, including allegedly Aboshady,

would "get the information together" and send it to the billers

for them to then submit to the insurer.

           In connection with the fraud for which Mashali had been

convicted, Aboshady was indicted on various federal charges in the

United States District Court for the District of Massachusetts on

September 27, 2016. The indictment was for one count of conspiracy


                                         - 3 -
to   make   false    statements   and   to   conceal   in   connection   with

healthcare benefit programs, in violation of 18 U.S.C. § 371, and

two counts of false statements in connection with healthcare

benefit programs, in violation of 18 U.S.C. § 1035.

             Aboshady pleaded not guilty to the charges against him,

and a trial ensued.       The jury found Aboshady guilty on all three

counts, and the District Court sentenced Aboshady to 75 months in

prison.     He then timely filed this appeal.

                                    II.

             Aboshady's first set of challenges to his convictions

concerns the District Court's denial of his December 2017 motion

to suppress data that the government had acquired pursuant to a

2014 warrant.       That warrant authorized the search and seizure of

certain electronic data contained in six Gmail accounts, including

Aboshady's.     The warrant provided that it was to be executed on

Google, Inc.1

             We review a district court's findings of fact in denying

a motion to suppress for clear error and its conclusions of law de


      1Below, in addition to filing his motion to suppress with
the District Court, Aboshady also moved to compel discovery before
the federal magistrate judge who had issued the search warrant to
obtain information relating to the government's seizure of
material obtained from Google via the warrant.      The Magistrate
Judge held a hearing on that motion but then denied it in a written
decision. Aboshady sought review of that ruling from the District
Court.   Based in part on the Magistrate Judge's findings, the
District Court denied the motion in a written opinion. Aboshady
does not appeal that ruling to us.


                                   - 4 -
novo.    See United States v. Almeida, 748 F.3d 41, 47 (1st Cir.

2014).   Because "[s]uppression of evidence . . . has always been

our last resort, not our first impulse," Utah v. Strieff, 136

S. Ct.   2056,      2061   (2016),    it   is    permitted    only      when   the

government's conduct in searching or seizing the evidence in

question reflects a "deliberate, reckless, or grossly negligent

disregard for Fourth Amendment rights," Davis v. United States,

564   U.S.   229,    238   (2011)    (internal    quotation     marks    omitted)

(quoting Herring v. United States, 555 U.S. 135, 144 (2009)).

             Aboshady argues that the District Court erred in denying

his suppression motion because the government executed the warrant

in a manner that reflects a flagrant disregard of the warrant's

terms.   He contends that this flagrant error in execution occurred

because the government required Google, Inc. to hand over a drive

that held all of the data in Aboshady's account, including certain

electronic documents that contained very personal information of

his, and then, in preparation for trial, retained all of that data

and   possibly      searched   it    (including    in   those    searches      the

electronic documents within that data that contained that personal

information).       Aboshady appears to premise this contention on an

assertion that the warrant did not permit the government to retain

for as long as it did either his personal emails or any of the

other electronic documents contained within the data that the

government had acquired from Google, Inc.               He also appears to


                                      - 5 -
contend that the warrant did not permit the government to then

search the personal information contained in the emails and the

electronic documents to which he refers.

              We begin by considering what the record shows about the

government's execution of the warrant on Google, Inc.                    Section II

of the warrant, which is entitled "Accounts and Files to be Copied

by Google, Inc. Personnel[,]" clearly states that Google, Inc. was

to     copy      "[a]ll       data      files        associated        with      . . .

tifaaboshady@gmail.com" and that "Google, Inc. will provide th[at]

account duplicate to law enforcement personnel.                   Law enforcement

personnel will then search the account duplicate for the records

and data to be seized."          In accord with the plain terms of that

section of the warrant, the government executed the warrant on

Google, Inc., and, in response, the company produced a duplicate

data file of Aboshady's Gmail account, including the personal

emails that he singles out. Subsequently, in accord with the plain

terms of that section of the warrant, personnel from the Federal

Bureau   of    Investigation         ("FBI")    who    were   not    part     of   the

prosecution     team   then    uploaded    to    a    searchable       database    the

estimated 430,081 documents contained in the data file that Google,

Inc.   had    turned   over,     applied       search    terms    to    filter     out

potentially      privileged     communications,         and   then      turned     the




                                        - 6 -
database over to the investigative team.2 Thus, we see no violation

of   the   warrant,   let   alone   a   flagrant   one,   in   either   the

government's execution of the warrant on Google, Inc. or its

subsequent creation of the database.

            We turn, then, to the government's execution of the

warrant once that database had been created.          As this aspect of

the government's execution does not implicate Section II of the

warrant, we focus, as Aboshady does, on Section III, which is

entitled "Records and Data to be Searched and Seized by Law

Enforcement Personnel."      That section of the warrant states that

the government is authorized to search within, and to seize from,

the data that it has acquired from Google, Inc. pursuant to Section

II the following: "[a]ll communications between or among" the six

accounts; "[a]ll communications pertaining to patient records,

billing, and/or claims for payment relating to NEPA patients";

records relating to "[t]he identity of the person or persons who

have owned or operated the e-mail accounts"; the "existence and

identity of any co-conspirators"; and "[t]he travel or whereabouts

of" the owners of the six accounts.



      2
      We note that Federal Rule of Criminal Procedure 41(e)(2)(B)
provides that a warrant "may authorize the seizure of electronic
storage media or the seizure or copying of electronically stored
information. Unless otherwise specified, the warrant authorizes
a later review of the media or information consistent with the
warrant." Fed. R. Crim. P. 41(e)(2)(B).



                                    - 7 -
             Aboshady      argues    that     the     government      impermissibly

interpreted the provision in Section III that gives the government

"authorization to seize records relating to the identity of the

operators of the relevant email accounts" to mean "that every email

in Dr. Aboshady’s account falls within the terms of the warrant."

(First    emphasis        added).      Aboshady        asserts     that       such    an

interpretation      is     implausible,       because      it   would     allow      the

government     to   search     and    seize    every       email   (including        any

attachments to it) that was sent or received from the email

address, "tifaaboshady@gmail.com," just by virtue of the fact that

the email had been sent to or received by that email address.

             Aboshady asserts that such a broad interpretation of the

warrant   would      conflict       with    both     the    "Fourth     Amendment's

particularity       and     reasonableness          requirements"       and     "[t]he

structure of the warrant." As to that latter contention, he points

to the fact that the warrant contains distinct sections -- namely,

Section II and Section III -- and argues that, when this feature

of the warrant is "combined with the different categories listed

in the separate sections of the warrant," the warrant clearly

"implies that the set of data described in Section III of the

warrant is more restricted than the universe of [S]ection II."

Aboshady then proceeds to describe, albeit briefly, "[t]he non-

seizable documents retained by the government" pursuant to what he

contends was its impermissible interpretation of Section III to


                                       - 8 -
"include email communications between Dr. Aboshady and his wife,

sensitive financial and medical information, and numerous personal

and sensitive photographs.       Examples include emails Dr. Aboshady

wrote to his family members updating them on the progress of his

wife's labor, accompanied by photographs of his wife in the

delivery room."

             As far as we are aware, the government continues to hold

all of the data contained in the database and thus the electronic

documents that contain the personal information that Aboshady

specifically contends that the government impermissibly retained

pursuant     to   what   he   asserts     is    its   flagrantly    overbroad

construction of the word "identity" in Section III.                   It also

appears that the government intends to keep the entirety of that

data until the end of Aboshady's criminal appeals.

             Nothing in Section III or anything else in the warrant,

however, sets forth a time limit on the retention of the data that

Section II    plainly    authorized     the    government   to   acquire   from

Google, Inc.      And, given the absence of any such time limit, we do

not see why it would be unreasonable to interpret the warrant to

permit the government to retain that data until the appeals are

completed, see United States v. Ramirez, 523 U.S. 65, 71 (1998)

(describing how the "touchstone of reasonableness . . . governs

the method of execution of the warrant"), let alone why it would

be so unreasonable to so construe it that suppression would be


                                   - 9 -
required here.   See United States v. Ganias, 824 F.3d 199, 213-15

(2d Cir. 2016) (en banc) ("[I]n assessing the reasonableness, for

Fourth Amendment purposes, . . . [p]reservation of the original

medium or a complete mirror may therefore be necessary in order to

safeguard the integrity of evidence that has been lawfully obtained

or to authenticate it at trial."); id. at 215 ("Retention of the

original storage medium or its mirror may also be necessary to

afford criminal defendants access to that medium . . . so that

. . .   they may challenge the authenticity or reliability of

evidence allegedly retrieved."); United States v. Ulbricht, 858

F.3d 71, 99–100 (2d Cir. 2017) (noting that due to the "nature of

digital storage, it is not always feasible to extract and segregate

responsive data from non-responsive data" (internal quotation

marks and citation omitted)).   The pre-digital age precedents that

Aboshady points to in arguing otherwise, moreover, are not to the

contrary.   See Andresen v. Maryland, 427 U.S. 463, 482 n.11 (1976)

(discussing the return of non-responsive documents in the pre-

digital era); United States v. Tamura, 694 F.2d 591, 595-97 (9th

Cir. 1982) (same); United States v. Abrams, 615 F.2d 541, 543 (1st

Cir. 1980) (describing how the warrant at issue failed to meet the

requirement of particularly when it did not provide a limitation

as to what records could be seized).

            To the extent that Aboshady means to argue that the

government's execution of the warrant flagrantly violated its


                                - 10 -
terms because the government not only retained the data that it

had acquired from Google, Inc. pursuant to Section II of the

warrant but also may have run searches on that data for years

afterwards "as it developed new theories" of his possible criminal

liability, we also are not persuaded.   An "unreasonable delay" in

conducting a search that had been authorized by a warrant could

"result[] in the lapse of probable cause," United States v.

Syphers, 426 F.3d 461, 469 (1st Cir. 2005) (quoting United States

v. Marin-Buitrago, 734 F.2d 889, 894 (2d Cir. 1984)),3 but there

is no evidence in the record here that suffices to show that

probable cause had lapsed at the time that any particular search

of the data may have been conducted, see United States v. Arnott,

758 F.3d 40, 45 n.6 (1st Cir. 2014) (noting that when an argument




     3 The Syphers court pointed to two district court decisions
where the government continued to do searches on seized electronic
data for many months after first executing the warrant but where
the courts found that such a period of time was not unreasonable.
First, in United States v. Gorrell, 360 F. Supp. 2d 48, 55 n.5
(D.D.C. 2004), there was a ten-month delay in processing the seized
computer and camera, but the court found that "[t]he warrant did
not limit the amount of time in which the government was required
to complete its off-site forensic analysis of the seized items and
the courts have not imposed such a prophylactic constraint on law
enforcement."   And, in United States v. Triumph Capital Group,
Inc., 211 F.R.D. 31, 66 (D. Conn. 2002), the court found that
"computer searches are not, and cannot be subject to any rigid
time limit because they may involve much more information than an
ordinary document search, more preparation and a greater degree of
care in their execution."



                              - 11 -
"lack[s] . . . specificity, any claim of error relating to the

statements may well be waived").4

           That leaves Aboshady's apparent contention that the

flagrant violation in the execution of the warrant inheres in the

government's impermissible search and seizure of the particular

electronic documents that contained the very personal information

that he describes the government as having acquired from Google,

Inc. pursuant to Section II of the warrant but that he contends

that Section III of the warrant, properly read, did not then permit

the government to search or seize. Aboshady premises this argument

on the contention that the reference in Section III to "identity"

does not provide the government with authorization to search or

seize emails that Google, Inc. had handed over just based on the

fact that those emails were associated with Aboshady's email

account.




     4Aboshady invokes United States v. Wey, 256 F. Supp. 3d 355
(S.D.N.Y. 2017), which held that a search of electronic data was
"impermissible" because the agents searched "materials already
sorted out as impertinent two years earlier" based on alternative
charging theories that were "never presented to a judge," id. at
405-09.   But, Wey noted that the government appeared to be
"intentionally taking advantage of its sweeping electronic take to
look for evidence" that "essentially" supported an "independently
developed probable cause," id. at 407, and there is no basis in
this record for finding similarly here.




                              - 12 -
            There is no basis on this record, however, for concluding

that the government's search or seizure of the information that

Aboshady contends falls outside the warrant's scope depends on a

construction of the reference to "identity" in Section III that

would   necessarily     encompass      any   email   in    the     data   that   the

government had acquired from Google, Inc. that had been sent to or

received from the email address appearing to bear Aboshady's

surname.    The electronic documents that he identifies as having

been    encompassed     by   the      government's       supposedly       overbroad

interpretation of the word "identity" in Section III of the warrant

included statements and pictures uniquely relevant to Aboshady

because they were uniquely personal to Aboshady, and only Aboshady.

This feature of those documents thus demonstrated that it was

unlikely that anyone but Aboshady would have sent or received the

emails that contained the statements or pictures and, in that

respect, as the District Court concluded, helped to demonstrate

that the email account that was alleged to be Aboshady's was in

his control, despite his apparent contention to the contrary.                    The

same could not necessarily be said of every email sent or received

from that address.

            Moreover,    the   word     "identity"        must    be   given     some

meaning.    Yet, Aboshady does not explain what meaning he would

ascribe to that word that would give it some content and yet also

clearly    preclude   the    search    and     seizure    of     electronic    files


                                      - 13 -
that -- in consequence of the especially personal information

contained in them -- provide evidence that at the time the files

were sent and received, Aboshady had control over the email address

to or from which the information had been sent.5   For this reason,

too, we reject this aspect of his challenge to the denial of his

motion to suppress.

          In any event, even if we were persuaded by Aboshady's

argument that the government's execution of the warrant misapplied

Section III's reference to "identity," Aboshady is not entitled to

the remedy he seeks — the blanket suppression of all emails seized

and admitted at trial.   Under our precedent, "[t]he remedy in the


     5 We note that Aboshady supports his contention that "[t]he
government’s execution of the Gmail warrant was unreasonable -- and
unconstitutional -- because it made no attempt, at all, to
'segregate[e] electronic data that is seizable from that which is
not,'" by quoting from United States v. Comprehensive Drug Testing,
Inc., 621 F.3d 1162, 1177 (9th Cir. 2010) (en banc) (per curiam).
But, the full sentence from Comprehensive Drug Testing from which
Aboshady partially quotes in this passage states that:         "The
process of segregating electronic data that is seizable from that
which is not must not become a vehicle for the government to gain
access to data which it has no probable cause to collect." Id.
Given what the record shows about the nature of the electronic
documents that contain the personal information that Aboshady
highlights and how the nature of that information bears on the
identity of the person in control of the email address to which
that information had been sent or from which that information had
been received, the mere fact that the government retained that
information and also may have searched it fails to demonstrate
that the government made no attempt to segregate the data acquired
from Google, Inc. that the warrant permitted to be searched and
seized from the data that the warrant did not.



                              - 14 -
case of a seizure that casts its net too broadly is . . . not

blanket suppression but partial suppression."                    United States v.

Falon, 959 F.2d 1143, 1149 (1st Cir. 1992) (citing United States

v. Riggs, 690 F.2d 298, 300 (1st Cir. 1982)).                  If the scope of the

government's search was too broad, Aboshady would only be entitled

to suppression of those emails that were introduced at trial and

that reasonably fell outside the scope of the warrant unless the

"lawful   and     unlawful    parts     of     the    search    are    inextricably

intertwined or where the lawful part seems to have been a kind of

pretext for the unlawful part."           United States v. Young, 877 F.2d

1099, 1105 (1st Cir. 1989).           Aboshady cannot show either.             What is

more, Aboshady has not clearly identified which emails that were

introduced   at    trial     fell     outside   the    scope     of    the    warrant.

Consequently, even if the government's conduct violated the Fourth

Amendment, there is nothing in the record to show that any of the

evidence introduced at trial should have been suppressed.

                                        III.

           Aboshady's        second    set     of    challenges       focus    on   the

District Court's instruction to the jury about the inferences that

it could draw from the fact that one of the staff members of the

NEPA Cairo office, Joseph Ashraf, was not called to testify.

Ashraf appeared on the government's initial witness list and was

referenced by multiple witnesses during the course of trial.                        On

the eve of trial, Aboshady asked the District Court to give a so-


                                       - 15 -
called "missing witness" instruction to inform the jury that it

was permitted to infer that Ashraf's testimony would have been

unfavorable to the government.     See First Cir. Pattern Crim. Jury

Instruction 2.12.     The District Court denied this request, and

Aboshady has not renewed his request on appeal.

           Instead, Aboshady focuses on the instruction that the

District   Court   ultimately   gave    —   which   instructed   the   jury

concerning the inferences that could be drawn from the fact that

a witness had not been called to testify. Here, too, we find that

his challenges lack merit.

           Aboshady's trial counsel, in his closing argument to the

jury, asserted that there was a lack of direct evidence that a co-

conspirator possessed the requisite criminal intent to be guilty

of a crime and that Aboshady could not "aid and abet a non-crime."

His trial counsel then added that the government had been in

contact with Ashraf and "[t]he Government has this [Immigration

and Customs Enforcement] parole procedure to bring people into the

country, but he's not here."           And, further, Aboshady's trial

counsel stated in his closing argument that there are "[s]ome

questions that are unanswered because there is this hole in the

case" and that one of these questions was whether Ashraf and the

other Cairo-based employees had the requisite intent to conspire

with Aboshady.




                                - 16 -
          Following   these   statements   by   trial   counsel,   the

District Court, sua sponte, instructed the jury:

          You must also not make any inferences based upon
     any witness who was not called to testify. There is no
     requirement that all participants in a crime be charged
     and prosecuted or tried in one proceeding or that all
     witnesses testify.    Also, other individuals who were
     mentioned frequently during the trial and may have had
     relevant information for your consideration were not
     called as witnesses to testify because they were beyond
     the subpoena power of either party and unavailable as
     witnesses for either the Government or the Defendant.
     Therefore, you should draw no conclusions either for or
     against the Defendant or the Government from the failure
     of such witnesses to appear and testify at this trial.
     Your verdict must be based solely on the evidence
     presented in this Courtroom and in accordance with my
     instructions.


Aboshady then moved to strike the instruction, which he described

as "about when a witness is beyond the subpoena power of both

sides;" "because there was no evidence about subpoena power of

either side" counsel argued, "it's inappropriate because there was

no evidence."   The District Court denied the motion to strike the

instruction.6

          Aboshady argues on appeal that the District Court erred

in denying the motion to strike because the instruction wrongly

stated that the jury could "not make any inferences based upon any


     6 We treat as waived for lack of development any challenge to
the instruction insofar as it relates to any witness other than
Ashraf. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990)   ("[I]ssues   adverted   to   in  a   perfunctory   manner,
unaccompanied by some effort at developed argumentation, are
deemed waived.").


                               - 17 -
witness who were not called to testify."     The parties dispute

whether Aboshady preserved this challenge below and thus whether

we review this challenge de novo or only for plain error.   But, we

may bypass this dispute, because the challenge fails even under

the de novo standard that Aboshady contends applies.   See United

States v. Wright, 937 F.3d 8, 22 (1st Cir. 2019) (explaining that

for "preserved challenges to jury instructions, we 'consider de

novo whether an instruction embodied an error of law'" (quoting

United States v. Ackell, 907 F.3d 67, 78 (1st Cir. 2018))).

          We have explained before that a party may "highlight" a

"missing witness[] to argue evidentiary insufficiency."       United

States v. Jiménez-Torres, 435 F.3d 3, 12 (1st Cir. 2006).   We have

further explained that "[w]here the court finds that an uncalled

witness is clearly favorably disposed toward one of the parties,

an instruction, if requested, may properly be given that the jury

may draw an inference favorable to the other party." United States

v. Johnson, 467 F.2d 804, 809 (1st Cir. 1972); see also id. at 808

("The basis for either argumentative comments or request for

instructions with regard to an opponent's failure to call a

knowledgeable witness is . . . that if a party has evidence which

will illuminate questions in issue and fails to present it, it may

be inferred that such evidence would be harmful to his case.").

          We have also explained, however, that an "[a]ttorney[]

may not argue that the jury should draw an inference against an


                             - 18 -
opponent where the opponent does not present witnesses that are

available to both parties." Jiménez-Torres, 435 F.3d at 12 (citing

Johnson, 467 F.2d at 808 ("No inference is permissible, however,

where . . . the evidence is equally available to either party.")).

And, in Johnson, we observed that, even if a party cannot subpoena

a witness or require a witness to testify, the witness could still

be "available" to that party if favorably disposed to the party,

such that the witness would testify of the witness's own volition

were the party to so request.         467 F.2d at 808-09 ("A witness's

availability is not to be decided on the basis of his physical

presence in the court room or his accessibility . . .           by subpoena.

We hold rather that a witness's . . . availability is to be

determined on the basis of his disposition and relationship toward

the parties.").

          Here,   in    denying     Aboshady's   request    for      a    missing

witness instruction before trial, the District Court specifically

found that it was "satisfied with the government[']s explanation

of Mr. Ashraf[']s unwillingness to come to the United States to

testify at trial," such that "a missing witness instruction will

not be given."    Moreover, Aboshady develops no argument that the

explanation provided to the District Court reveals that either

Ashraf's reason for being unwilling to come to testify or that the

government's   reason   for   not    calling   him   had   to   do       with   any

hostility to or disagreement on his part with the government's


                                    - 19 -
case against Aboshady.     Nor does Aboshady dispute that neither he

nor the government had the power to compel Ashraf to testify at

trial, as he does not dispute that neither party had the authority

to subpoena a foreign national located in a foreign country.          See

Fed. R. Crim. P. 17(e)(2); 28 U.S.C. § 1783; United States v.

Theresius Filippi, 918 F.2d 244, 246 n.2 (1st Cir. 1990) ("The

United States has no subpoena power over a foreign national in a

foreign country.").     Thus, because Aboshady fails to develop any

argument as to how, notwithstanding these aspects of the record,

he can meet the Johnson standard with respect to whether Ashraf

was "available" to the government, see Jiménez-Torres, 435 F.3d at

12; Johnson, 467 F.2d at 808-809, we see no basis for finding error

in the District Court's "no inference" instruction.

            Insofar as Aboshady means to challenge the District

Court's instruction on the separate ground that it impermissibly

shifted    the   prosecution's   burden    by   "improperly   nullif[ing]"

defense counsel's argument that the government had failed to meet

its burden of proof, this argument also fails.           The instruction

merely told the jury not to make any inference as to why the

government did not call the witness.        It did not instruct the jury

not to consider the lack of testimony from Ashraf and other Cairo

employees in deciding whether the government had met its burden to

prove Aboshady's guilt beyond a reasonable doubt on any of the

charges.    Moreover, "[j]ury instructions must be read as a whole,


                                  - 20 -
not in some sort of splendid isolation," and the District Court

separately instructed the jury that the prosecution retained the

burden of proof.   United States v. Goris, 876 F.3d 40, 48 (1st

Cir. 2017); see Richardson v. Marsh, 481 U.S. 200, 206 (1987)

(noting "the almost invariable assumption of the law that jurors

follow their instructions"); United States v. Diaz-Diaz, 433 F.3d

128, 135 (1st Cir. 2005) (finding that although the prosecutors'

statement to the jury impermissibly shifted the burden of proof to

the defense, the remark was effectively addressed by the judge's

prompt instruction "to the jury that the burden of proof remained

with the government").

          Finally, Aboshady challenges the instruction because he

contends that it added a fact not in evidence by stating that

certain witnesses did not testify "because" they were beyond the

parties' subpoena power.    A federal district court judge can

"comment on the facts and evidence," but if, in doing so, a judge

adds a fact not in evidence, then the judge has "exceed[ed] the

limitations on his power to comment."   United States v. Paiva, 892

F.2d 148, 159 (1st Cir. 1989).   The question then becomes whether

any such error was nonetheless harmless beyond a reasonable doubt.

See Chapman v. California, 386 U.S. 18, 24 (1967); see also Paiva,

892 F.2d at 159.

          Aboshady contends that, by instructing the jury that the

witnesses had not testified "because they were beyond the subpoena


                             - 21 -
power of either party and unavailable as witnesses," (emphasis

added), the District Court necessarily implied that Ashraf would

not appear as a witness at the trial of his own volition even

though     no   evidence      had    been      introduced    to     support       that

determination.        But,    even    assuming     that   construction       of   the

instruction is a tenable one, any error was harmless beyond a

reasonable doubt on this record.

            Aboshady's       assertion      that   the    instruction       was    not

harmless    depends    on    his    contention     that   the     wording    of   the

instruction     effectively        precluded    the   jury   from    drawing      the

inference from Ashraf's nonappearance that he would have testified

in Aboshady's favor.          But, as we have explained, Aboshady has

failed to make the case that the District Court, on this record,

erred in instructing the jury not to draw that precise inference.

Accordingly, we do not see how the instruction may be understood

to have caused Aboshady any harm.              See Paiva, 892 F.2d at 159.

                                         IV.

            For the reasons stated, we affirm Aboshady's conviction.




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