          United States Court of Appeals
                     For the First Circuit


No. 16-2247

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                   FEDERICO DUCOUDRAY ACEVEDO,

                      Defendant, Appellant.


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

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


                             Before

                    Barron, Selya, and Lipez,
                         Circuit Judges.


     Linda Backiel on brief for appellant.
     Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Thomas F. Klumper, Assistant United States
Attorney, Senior Appellate Counsel, on brief for appellee.



                        February 14, 2018
           BARRON,      Circuit    Judge.    Federico      Ducoudray     Acevedo

("Ducoudray"), formerly an attorney in Puerto Rico, appeals his

convictions for tampering with a witness, victim, or an informant,

18 U.S.C. § 1512(b)(1), and for obstructing the due administration

of justice, 18 U.S.C. § 1503. These convictions arise from a visit

that Ducoudray made in August of 2012 to an alleged co-conspirator

of one of Ducoudray's clients, who at the time was facing several

criminal charges in both state and federal court. The government

alleged   that   Ducoudray   committed       the   underlying      offenses    by,

during that visit, requesting that the co-conspirator "retract"

the statements that he made to law enforcement that implicated

Ducoudray's client.

           On    appeal,   Ducoudray       contends     that    there   was    not

sufficient evidence to support the convictions.                He argues, in the

alternative, that a series of errors occurred at his trial that,

he   contends,   show    either    singly    or    in   combination     that   the

convictions may not stand.         We affirm both convictions.

                                      I.

           We reserve a discussion of the full set of facts,

complicated as they are, for our discussion of the individual

issues Ducoudray raises.          For now, it suffices to recount those

facts that make it possible to understand the charges underlying

the convictions.




                                     - 2 -
            The relevant sequence of events begins on July 21, 2012.

A federal criminal complaint was filed that day in the United

States District Court for the District of Puerto Rico against Edwin

Santana Hernández ("Hernández"), a client of Ducoudray.                          The

complaint charged Hernández with being a participant in a drug

trafficking conspiracy.

            The complaint included a probable cause affidavit.                       The

affidavit stated that Hernández's cousin, Julio Santana Castillo

("Castillo"),    had    already     been   arrested      in   New   York        as    a

participant in the same drug trafficking conspiracy in which

Hernández was implicated.         The affidavit also stated that Castillo

was cooperating with federal law enforcement by providing law

enforcement   with     evidence    of   Hernández's   involvement          in   that

conspiracy.

            Hernández was arrested on the same day that the federal

criminal    complaint    was   filed    against   him.        Two   days    later,

Ducoudray provided a "notice of appearance" in that federal case

indicating that he had been retained to serve as Hernández's

attorney.

            The next day, Castillo, who was being held at the time

in a correctional facility in New York City on a New York state

law charge of conspiracy to traffic narcotics, hired a defense

attorney named Peter Frankel ("Frankel") to represent him.                      Over

the course of the next week, Frankel met with Castillo in the


                                     - 3 -
correctional     facility,   appeared     in   state   court   on   Castillo's

behalf in connection with the conspiracy charges that had been

brought against Castillo, and was present at a proffer session

with state and federal authorities during which Castillo confessed

to his participation in the drug trafficking conspiracy.

          Soon thereafter, on August 1, 2012, a grand jury in the

United States District Court for the District of Puerto Rico

indicted both Hernández and Castillo, as co-defendants.                    The

indictment charged them with various counts related to the drug

trafficking    conspiracy    in   which    they    were   alleged     to   have

participated.1

          The next key events for present purposes were as follows.

On the same day that the federal indictment of Hernández and

Castillo came down, August 1, 2012, Ducoudray left Puerto Rico and

headed to New York City in hopes of visiting with Castillo at the

correctional facility where Castillo was being held.                Then, the

next day, according to Castillo's testimony at Ducoudray's trial,

Ducoudray met with Castillo at the correctional facility and told

him that he should "retract [the] story" that he had told to law

enforcement, as "Hernández was going to trial, and [Castillo's




     1 This indictment was docketed as a different matter than the
matter in which the federal criminal complaint had previously been
filed against Hernández, although the case previously filed
against Hernández was merged into the newly docketed case on August
1, 2012.


                                   - 4 -
retraction] was the only way [Hernández] was going to beat [his]

case."    In addition, Castillo testified, Ducoudray first told

Castillo that he had called Castillo's lawyer several times and

that Castillo's lawyer never picked up.          But, Castillo testified,

Ducoudray later in the conversation "changed the story" to say

that Castillo's lawyer had, in fact, given Ducoudray permission to

speak with Castillo.

             Ducoudray ended the meeting, according to Castillo's

testimony, by telling Castillo that he should not tell his brother

or his attorney about the meeting.         But, Castillo testified, after

the visit Castillo feared for his safety and told his brother about

the visit.

             Soon after meeting with Castillo, moreover, Ducoudray

contacted Frankel, according to Frankel's testimony at Ducoudray's

trial.   Frankel testified that, when the two men talked, Ducoudray

identified    himself   as   Hernández's    attorney   and    asked    Frankel

whether Castillo was cooperating with law enforcement but that

Ducoudray did not reveal that he was in New York City or that he

had just visited Castillo.       Frankel also testified that, after he

later learned from Castillo's brother that there had been an

unauthorized    visit   by   a   lawyer    to   Castillo,    Frankel    called

Ducoudray.    According to Frankel's testimony, Ducoudray initially

denied that the visit had occurred, stating that he was in Puerto

Rico, but, when pressed by Frankel, admitted that he had visited


                                   - 5 -
and spoken with Castillo, though he stated it was only to "find

out who [Castillo's] lawyer was."

            The next morning, Frankel testified, he contacted the

Assistant United States Attorney ("AUSA") prosecuting Hernández's

case and reported the incident to that AUSA, both orally and later

by email.   The email included an account of what Castillo had told

Frankel about what Ducoudray had said to Castillo during their

meeting at the correctional facility.

            In 2015, Ducoudray was indicted on federal charges of

obstructing the due administration of justice2 and tampering with

a witness, victim, or an informant,3 in connection with his visit

to Castillo.    A jury trial was held in January 2016, after which

Ducoudray was convicted of both offenses.4   He now appeals.




     2  "Whoever corruptly, . . . impedes, or endeavors to
influence, obstruct, or impede, the due administration of justice,
shall be punished . . . ." 18 U.S.C. § 1503.
     3 "Whoever knowingly . . . corruptly persuades another person,
or attempts to do so, . . . with intent to . . . influence, delay,
or prevent the testimony of any person in an official proceeding
. . . shall be fined under this title or imprisoned . . . ." 18
U.S.C. § 1512(b).
     4 Prior to trial, in October 2012, Castillo and Hernández
entered into plea agreements with respect to the federal drug
charges against them.    They were both sentenced in 2013, with
Castillo receiving a reduced sentence recommendation due to his
cooperation with law enforcement.


                               - 6 -
                                         II.

               We   first     address   Ducoudray's       contention      that     the

District       Court   wrongly    denied   his    motion    for   a     judgment    of

acquittal pursuant to Federal Rule of Criminal Procedure 29, as to

both charges.5         To succeed on his Rule 29 motion, Ducoudray must

show that the evidence presented at trial, even when viewed in the

light most favorable to the government, did not suffice to prove

the elements of the offenses beyond a reasonable doubt. See United

States v. Gabriele, 63 F.3d 61, 67 (1st Cir. 1995).

               In order to convict Ducoudray of a violation of 18 U.S.C.

§ 1512(b)(1), the government had to prove beyond a reasonable doubt

that       Ducoudray   "(i)   knowingly    (ii)   . . .    corruptly      persuaded

[Castillo], or attempted to do so . . . (iii) with intent to

influence[, delay, or prevent the] testimony [of Castillo] (iv) in

an official proceeding."           United States v. Cruzado-Laureano, 404

F.3d 470, 487 (1st. Cir. 2005). We have previously held, moreover,

that "[t]rying to persuade a witness to give false testimony counts

as 'corruptly persuading' under § 1512(b)[(1)]."                  Id.




       5
       The Rule 29 motion Ducoudray filed appeared to be limited
to a motion for acquittal on just the 18 U.S.C. § 1512(b)(1)
offense. However, the District Court did reference the criminal
statutes underlying both offenses in its ruling denying the motion.
On appeal, Ducoudray appears to argue that his Rule 29 motion
encompassed the convictions for both offenses, and the government
does not contest this characterization. For the purpose of our
Rule 29 analysis, therefore, we assume without deciding that
Ducoudray's Rule 29 motion below concerned both offenses.


                                        - 7 -
            In order to convict Ducoudray of violating 18 U.S.C.

§ 1503, the government had to prove beyond a reasonable doubt the

following: that there was a pending judicial proceeding; that

Ducoudray had notice of the proceeding; and that Ducoudray acted

corruptly with the intent to influence or obstruct, or endeavored

to influence or obstruct, the proceeding.             See United States v.

Cueto,    151   F.3d   620,   633   (7th   Cir.   1998);   United   States   v.

Frankhauser, 80 F.3d 641, 650-51 (1st Cir. 1996).             The government

contends that proof that Ducoudray tried to persuade Castillo to

provide    false   testimony    at    Hernández's    criminal   trial   would

suffice to support Ducoudray's conviction for violating § 1503,

just as it would suffice to support his conviction for violating

§ 1512(b)(1).      Ducoudray makes no argument to the contrary.

            Accordingly, setting to one side any other theories of

criminal liability that the parties address in their briefing to

us, Ducoudray's challenge to the denial of his Rule 29 motion fails

if the evidence at trial sufficed to show that, in Ducoudray's

words, he "knowingly attempted to persuade [Castillo] to violate

the law by providing false testimony."            Our review of the denial

of the motion is de novo.           United States v. Hernández, 218 F.3d

58, 64 (1st Cir. 2000).6        But that review is "quite limited," as


     6 Ducoudray submitted a Rule 29 motion at the close of the
government's evidence, but he did not renew his Rule 29 motion
after the verdict. Contrary to the government's assertion that
this failure to renew means the standard of review should be "for


                                     - 8 -
"we must affirm unless the evidence, viewed in the light most

favorable to the government, could not have persuaded any trier of

fact of the defendant's guilt beyond a reasonable doubt."                   Id.

(quoting United States v. Paradis, 802 F.2d 553, 559 (1st Cir.

1986)).    Moreover, "[i]n applying this standard, 'no premium is

placed upon direct as opposed to circumstantial evidence; both

types of proof can adequately ground a conviction.'"              Id. (quoting

United States v. Ortiz, 966 F.2d 707, 711 (1st Cir. 1992)).

Finally,   "[a]   trial   court   in   passing   on   [a   Rule    29]   motion

considers all of the evidence it has admitted, and . . . it must

be this same quantum of evidence which is considered by the

reviewing court."     United States v. Diaz, 300 F.3d 66, 77 (1st

Cir. 2002) (quoting Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988)).

Thus, on appeal, "[u]nder Rule 29, we must examine 'all the

evidence submitted to the jury, regardless of whether it was

properly admitted.'"       Id. (quoting United States v. Gonzalez-

Sanchez, 825 F.2d 572, 588 (1st Cir. 1987)).7



clear and gross injustice only," because Ducoudray did not put on
any evidence in his defense he did not have to renew his motion in
order to preserve the issue. See Hernández, 218 F.3d at 63 n.3.
As such, our review is de novo. See id. at 64.
     7 We thus reject Ducoudray's contention that we must ignore,
or discount the weight to be given, certain evidence in evaluating
his challenge to the denial of his Rule 29 motion due to the errors
that he alleges the District Court made at trial with respect to
that evidence. Later in this opinion, however, we do consider the
challenges that Ducoudray makes to those trial rulings, but only
in connection with Ducoudray's contention that those alleged


                                   - 9 -
           Applying these principles, we first consider Ducoudray's

contention that the evidence did not supportably show beyond a

reasonable doubt that Ducoudray "knew . . . [Castillo] was a

witness in Hernández's pending proceeding."              In considering that

contention, however, we must keep in mind that "[t]he key is not

whether the defendant knows or doesn't know that someone is a

'witness.'"      See United States v. Misla-Aldarondo, 478 F.3d 52, 69

(1st Cir. 2007).       The key is whether the defendant knew that the

person   might    be   providing   testimony   in   an    upcoming    official

proceeding that the defendant's actions were likely to affect.

See id. (interpreting § 1512(b) and explaining that the inquiry is

into   "whether    [the   defendant]   is   intending     to   head   off   the

possibility of testimony in an 'official proceeding'"); United

States v. Aguilar, 515 U.S. 593, 599 (1995) (holding, with respect

to intent to influence, obstruct, or impede testimony in an

official proceeding under § 1503, a defendant must have "knowledge

that his actions are likely to affect the judicial proceeding").

           Here, the government put forth sufficient evidence from

which a jury could find "that [Ducoudray] knew that an official

proceeding had begun [against Hernández], or that he believed one

to be likely in the future," Misla-Aldarondo, 478 F.3d at 69

(footnote omitted).        The government also put forth sufficient



errors provide a basis, either individually or in combination, for
vacating his convictions. See infra §§ III-IV.


                                   - 10 -
evidence from which a jury could reasonably conclude that Ducoudray

knew that Castillo was likely to be a witness for the government

in that proceeding.

                  That evidence included a copy of the notice of appearance

that        Ducoudray      filed      in     federal      court   confirming       his

representation of Hernández in the federal case against him.                      That

evidence also included Castillo's testimony about Ducoudray's

request that Castillo "retract" his statements to law enforcement

so that Hernández could "beat his case" at trial.                      After all, a

jury could reasonably conclude from this testimony that Ducoudray

was concerned about getting Castillo to change his story to help

Hernández "beat his case" because Ducoudray thought that Castillo

was likely both to testify as a witness against Hernández at trial

and to provide testimony that would help the government to convict

Hernández.           Hernández, 218 F.3d at 64 (explaining that "all

reasonable inferences [are] made in the light most favorable to

the government" (quoting United States v. Loder, 23 F.3d 586, 590

(1st       Cir.    1994)));   Diaz,    300    F.3d   at   77   ("In   assessing    the

sufficiency of the evidence under Rule 29, 'we view the evidence

and draw reasonable inferences in the light most favorable to the

verdict.'" (quoting United States v. McGauley, 279 F.3d 62, 66

(1st Cir. 2002))).8


       8
       Ducoudray also contends that Castillo's testimony cannot
suffice to sustain the verdicts because he was a "biased witness,"


                                           - 11 -
           We turn, then, to the question of whether the evidence

also sufficed to show that Ducoudray "knowingly" sought to persuade

Castillo to give false testimony, if need be, at the upcoming trial

of Hernández.      Ducoudray's chief argument that the evidence did

not suffice in that regard is that "[t]he prosecution made no

effort to show that . . . Ducoudray knowingly asked [Castillo] to

retract truthful statements."       He contends the evidence suffices

at most to show that Ducoudray was merely asking Castillo either

to not "falsely implicate[]" Hernández or to invoke a valid Fifth-

Amendment privilege against testifying.        In connection with this

contention, Ducoudray argues the testimony that he told Castillo

to "accept [his] responsibilities" shows that, in asking Castillo

to "retract" what he had told authorities, Ducoudray was merely

asking Castillo to "correct what [Hernández] had told [Ducoudray]

were lies."

           We must, however, consider the evidence in the light

most   favorable   to   the   verdict.     Hernández,   218   F.3d   at   64

(explaining that the court of appeals "must uphold any verdict

that is 'supported by a plausible rendition of the record'"




who was cooperating with the government. But, in reviewing the
denial of a Rule 29 motion, we do not "weigh the evidence or make
credibility judgments; these tasks are solely within the jury's
province." Hernández, 218 F.3d at 64. Insofar as Ducoudray is
also challenging the District Court's failure to provide a
requested cooperating witness jury instruction, we separately
address that argument later in this opinion. See infra § III.B.


                                  - 12 -
(quoting Ortiz, 966 F.2d at 711)).         In addition, "if the evidence

can be construed in various reasonable alternatives, the jury is

entitled to freely choose from among them."               United States v.

Smith, 680 F.2d 255, 259 (1st Cir. 1982).                Furthermore, "the

government    need   not   present   evidence     that     precludes   every

reasonable hypothesis inconsistent with guilt in order to sustain

a conviction."     Hernández, 218 F.3d at 64 (quoting Loder, 23 F.3d

at 590).

            When we review the record from this verdict-friendly

perspective, it is clear that the evidence did not require the

jury to view Ducoudray's attempt to persuade Castillo to "retract"

his statements to authorities as merely a request to testify

truthfully or to invoke a valid privilege.              Most significantly,

Castillo testified that he understood the "retract" statement not

to be advice that he should invoke a Fifth-Amendment right, but

rather to be a request that he lie to authorities to help Hernández

to "beat his case" at trial. Furthermore, Castillo testified that,

during the same conversation in which the "retract" statement was

made, he had told Ducoudray that what he had told authorities about

Hernández's culpability for the conspiracy was the truth.              Thus,

the jury could supportably find that, in making the request to

"retract"    the   statement,   Ducoudray   was   not    merely   requesting

Castillo to stay silent or tell the truth, but instead, if need




                                  - 13 -
be, to lie in his own testimony at Hernández's trial to enable

Hernández to "beat his case."

              The   reasonableness     of   such    a   conclusion   about    the

intention behind Ducoudray's request to Castillo is bolstered by

the   ample    record    evidence    that   supports     the    conclusion   that

Ducoudray was trying to hide the fact of his visit to Castillo.

That evidence ranges from evidence that shows that Ducoudray

entered a false address in the visitor log of the correctional

facility at which he visited Castillo, to evidence that shows that

Ducoudray      lied   to   Castillo     about      Castillo's    lawyer   giving

Ducoudray permission to speak with Castillo, to evidence that shows

that Ducoudray told Castillo not to tell anyone about the visit,

to evidence that shows that Ducoudray falsely claimed that he had

not made the visit when Frankel initially asked him about it.

              To be sure, a jury was by no means required to conclude

that Ducoudray sought to conceal his visit because he had asked

Castillo to lie.        Perhaps, as Ducoudray posits in his reply brief,

the jury could have found that Ducoudray was "aware[] that he was

at least skirting a professional rule" -- namely Model Rule 4.2 of

the American Bar Association Model Rules of Professional Conduct

("Rule 4.2")9 -- and thus that he "act[ed] surreptitiously [only]

in order to avoid potential professional problems."


      9Rule 4.2 states that "[i]n representing a client, a lawyer
shall not communicate about the subject of the representation with


                                      - 14 -
             But, a jury was entitled to draw a less favorable

inference.      And, thus, the evidence supports the convictions.    See

Misla-Aldarondo, 478 F.3d at 69 (interpreting § 1512(b)).            For,

even if, as Ducoudray posits, there might be some other "reasonable

hypothesis" with respect to his actions that is "inconsistent with

guilt," that possibility, on this record, does not reveal the

evidence   to    be   insufficient.   Accordingly,   we   conclude   that

Ducoudray's challenge to the denial of his Rule 29 motion fails.10




a person the lawyer knows to be represented by another lawyer in
the matter, unless the lawyer has the consent of the other lawyer
or is authorized to do so by law or a court order." Model Rules
of Prof'l Conduct r. 4.2 (Am. Bar Ass'n 2016).
     10  In light of the evidence just described, Ducoudray's
challenge to the Rule 29 motion fails even if we assume that, as
he contends, the District Court was mistakenly of the view both
that, in visiting Castillo, Ducoudray violated Rule 4.2 and that
such a violation "was relevant to proof of intent" with respect to
either offense. But, wholly apart from whether there was evidence
to support a finding that Ducoudray violated the prohibition set
forth in Rule 4.2, a jury could have reasonably found from the
evidence that we have described above that Ducoudray knew that
Castillo was likely to testify at Hernández's trial and that
Ducoudray encouraged Castillo, if need be, to lie in providing
that testimony.
     Moreover, because the evidence suffices to support the
convictions apart from whether the evidence reveals that Ducoudray
violated Rule 4.2, we need not address Ducoudray's additional
argument that the District Court erred in denying his Rule 29
motion for the separate reason that there was no evidence that
Ducoudray knew that Castillo was represented in the "same matter"
as Hernández and thus that there was no basis for finding that
Ducoudray violated Rule 4.2. We do address later in this opinion,
however,   Ducoudray's   challenge   to  the   supplemental   jury
instruction concerning Rule 4.2, see infra § III.D, including his
contention that the instruction was unwarranted by the facts.


                                  - 15 -
                                    III.

             Ducoudray contends in the alternative that, even if his

convictions need not be reversed due to insufficiency of the

evidence, they must be vacated due to various trial errors that

the District Court made.        We consider these various claimed trial

errors in turn.

                                     A.

             Ducoudray first argues that the District Court erred

when it admitted into evidence the email that Frankel sent to the

AUSA and certain testimony that Frankel provided at trial, insofar

as this evidence purported to describe what Castillo told Frankel

concerning Castillo's conversation with Ducoudray.                 Ducoudray

contends that the email and the testimony -- by offering that

description -- were inadmissible hearsay under Federal Rule of

Evidence 802 and that the erroneous admission of this evidence was

not harmless.       In this regard, Ducoudray contends that this

evidence had the prejudicial effect of lending credibility to

statements of Castillo, "a convicted felon," by allowing such

statements to be repeated through "the modulated voice of an

attorney, practiced in the art of addressing judges and juries."

             "We review the legal interpretation of a rule of evidence

de novo, but the decision to admit or exclude evidence is reviewed

for an abuse of discretion."         United States v. Phoeun Lang, 672

F.3d   17,   23   (1st   Cir.   2012).      In   addition,   we   review   any


                                   - 16 -
"subsidiary fact-finding" that bears on the issue "for clear

error."   See United States v. Burgos-Montes, 786 F.3d 92, 114 (1st

Cir. 2015).

                                        1.

             We    start    with   Ducoudray's      challenge      to    the    Frankel

testimony.        That testimony concerned what Castillo told Frankel

about what Ducoudray "advised" Castillo during his visit with him.

That testimony also concerned what Ducoudray told Castillo during

that visit with respect to "whether or not . . . Ducoudray had

spoken to [Frankel] prior to [that] visit."

             The problem for Ducoudray is the following.                       At first

Ducoudray    made    a     hearsay   objection      to   the   admission        of   any

testimony    from     Frankel      concerning    the     content    of    Castillo's

conversation       with    Ducoudray.        But,    before     Frankel        actually

testified as to what Castillo told him, Ducoudray's counsel then

reversed course by telling the District Court that "whatever was

covered in direct examination or cross-examination of [Castillo]

could be covered by [Frankel]," because "[i]t would be hearsay,

but it would be admissible."            As the record shows that Castillo

had testified on direct examination and cross-examination about

his conversation with Ducoudray at the correctional facility, we

thus agree with the government that Ducoudray waived his hearsay

objection to the Frankel testimony insofar as it purported to relay




                                      - 17 -
what Ducoudray had said to Castillo during the visit.          See United

States v. Sánchez-Berríos, 424 F.3d 65, 74 (1st Cir. 2005).

                                     2.

             We turn, then, to the email that Frankel sent.             The

government    acknowledges    that   Ducoudray    preserved   his   hearsay

objection to the admission of the email.         The government contends,

however, that even if the email was improperly admitted, any error

was harmless.     We agree.    Ducoudray does not contend on appeal

that the email described any statements attributed to Castillo

that exceeded the scope of Frankel's testimony about what Ducoudray

or Castillo had said during their meeting. Thus, because Ducoudray

waived his challenge to the Frankel testimony, any error in

admitting the email was harmless.         See, e.g., United States v.

Vigneau, 187 F.3d 70, 78-79 (1st Cir. 1999); United States v.

Fulmer, 108 F.3d 1486, 1502 (1st Cir. 1997).

                                     B.

             Ducoudray also challenges the jury instructions.          But

here, too, we find Ducoudray's arguments unpersuasive.

             Ducoudray first challenges the District Court's refusal

to grant his request to give the jury a portion of the District

Courts of the First Circuit Pattern Criminal Jury Instruction 2.08

"on the caution due testimony witnesses cooperating under an




                                 - 18 -
agreement with the prosecution."11             Ducoudray argues that the

District Court's refusal to give his requested instruction was in

error because Castillo was a cooperating witness. Ducoudray points

out that Castillo "testified in [Ducoudray's] case as a result of

his status as an accomplice in another [case -- the case against

Hernández    --],   in   which   he   signed    a   plea   and   cooperation

agreement."

            Ducoudray further contends that he was prejudiced by the

District Court's refusal to give this "caution due" instruction.

As he explains, even though "[t]he defense theory hung upon the

lack of credibility of [Castillo]'s testimony," "the jury never

learned the legal principle that [Castillo]'s testimony should be

received with 'particular caution' because he 'may have had reason

to make up stories or exaggerate . . [sic] because he wanted to

help himself."

            Ducoudray concedes, however, that, insofar as he failed

to object or renew his request for this instruction at trial after

it had been denied, then our review is only for plain error.            And,


     11The instruction as requested by Ducoudray read: "You have
heard the testimony of [Castillo].     He provided evidence under
agreements with the government[.] Some people in this position
are entirely truthful when testifying. Still, you should consider
the testimony of [Castillo] with particular caution. He may have
had reason to make up stories or exaggerate what others did because
he wanted to help himself.       You must determine whether the
testimony of such a witness has been affected by any interest in
the outcome of this case, any prejudice for or against the
defendant."


                                  - 19 -
because we find that he did so fail, Ducoudray must overcome the

hurdle of plain error review, which "nowhere looms larger than in

the context of alleged instructional errors."            See United States

v. Paniagua-Ramos, 251 F.3d 242, 246 (1st Cir. 2001).12

            To "vault this hurdle," Ducoudray must show "that an

error occurred," "that the error was clear or obvious," "that the

error affected his substantial rights," and "that the error so

seriously impaired the fairness, integrity, or public reputation

of the proceedings as to threaten a miscarriage of justice."             Id.

We   have   made   it   clear,   moreover,   that   "a   showing   of   'mere

possibilities [is] not enough' to prove that an instructional error

affected a defendant's substantial rights."              United States v.

Rivera-Izquierdo, 850 F.3d 38, 44 (1st Cir.), cert. denied, 137 S.

Ct. 2204 (2017) (quoting United States v. Procopio, 88 F.3d 21, 31

(1st Cir. 1996)).

            Here, in light of the fact that the requested instruction

would have only cautioned the jury that Castillo might have had

"reason to make up stories or exaggerate" to "help himself," we do

not see how Ducoudray can show on this record that the "outcome of

the case would likely have changed" if the omitted instruction had

been given.    Id. (quoting United States v. Colon, 744 F.3d 752,




      12
       We, therefore, need not address the government's argument
that Ducoudray waived appellate review of this challenge due to
his actions below.


                                   - 20 -
758 (1st Cir. 2014)).     Ducoudray does not dispute that he visited

Castillo   and   asked   him   to   "retract"   his    statements   to   law

enforcement.     He contends instead that he was not asking Castillo

to lie. But Castillo's less innocent interpretation of Ducoudray's

"retract" request was bolstered circumstantially by the wealth of

evidence indicating that Ducoudray sought to conceal his visit

with Castillo.

           The conclusion that Ducoudray has failed to show the

required effect on his substantial rights, draws further support

from the fact the District Court did instruct the jurors that they

"[did not] have to accept the testimony of any witness if [they

did not] find the witness credible" and that they should consider

a witness's "apparent fairness or any bias that they may have

displayed" and "any interest [they] may discern that [a witness]

may have had in the outcome of the case."             See United States v.

Carr, 5 F.3d 986, 992 (6th Cir. 1993).       Given that "we customarily

assume that jurors follow the instructions given to them by the

district court," United States v. Rodríguez, 735 F.3d 1, 12 (1st

Cir. 2013), and that the jury had been apprised of both the

evidence of Castillo's plea agreement (including its terms) and

his cooperation with law enforcement, those general instructions

provided a basis for the jury to be on the lookout for Castillo's

potential bias.




                                    - 21 -
          Accordingly,   on   this   record,   "it   would   be     pure

speculation to conclude that the [failure to provide the 'caution

due' instruction] had any effect on deliberations," and "[s]uch

speculation is insufficient to ground a successful claim that a

clear error affected the defendant's substantial rights."         United

States v. McFarlane, 491 F.3d 53, 61 (1st Cir. 2007); see also

Carr, 5 F.3d at 992 (finding no error in the trial court's failure

to give a particular credibility instruction where the court had

given general credibility instructions that "adequately informed

the jury regarding the credibility of witness testimony").           Nor

does Ducoudray identify any authority suggesting otherwise.           We

thus find no plain error.

                                C.

          Ducoudray separately argues that the instructions for

the offense of tampering with a victim, witness, or an informant

under 18 U.S.C. § 1512(b)(1) misstated the offense.     He points to

the fact that the District Court rejected the Third Circuit pattern

instruction regarding the specific intent element of that offense.

He also contends that the failure to give that instruction was

especially problematic because of the way that the District Court




                              - 22 -
described the offense and because the District Court also gave a

supplemental instruction on Rule 4.2.13

               But, here, too, we find that the challenge to the

District Court's instruction fails.             Prior to instructing the jury

on this count, the District Court modified the instruction that

the District Court intended to give the jury by including some

additional text regarding the meaning of "corruptly persuades" in

light of concerns that Ducoudray raised.             The District Court then

announced the text of the instruction that would be (and was)

provided       to   the     jury.     In    response,     Ducoudray's   counsel

affirmatively stated that he had "no objection."                 We thus find

that Ducoudray waived this challenge. See United States v. Hansen,

434 F.3d 92, 101 (1st Cir. 2006).

                                           D.

               That brings us to Ducoudray's final challenge to the

jury        instructions,     which   concerns      the    supplemental   jury




       13
        In his opening brief, Ducoudray states that his "arguments
[with respect to the tampering with a victim, witness, or informant
count] concerning the definition of 'corruptly' . . . apply with
equal force to [the obstructing the due administration of justice
count]."    However, Ducoudray does not explain why his argument
concerning the instruction on the "corruptly persuades" element of
the offense of tampering with a victim, witness, or informant would
be applicable to the distinct jury instruction concerning the
"corruptly" element of the offense of obstructing the due
administration of justice.     Accordingly, we find the argument
waived.    See United States v. Zannino, 895 F.2d 1, 17 (1990)
("[I]ssues adverted to in a perfunctory manner, unaccompanied by
some effort at developed argumentation, are deemed waived.").


                                      - 23 -
instruction that the District Court gave regarding Rule 4.2.       The

instruction stated:

          The Cannons of Professional Conduct for
          Lawyers provide that, while representing a
          specific   client,   the  lawyer    shall  not
          communicate   about   the   subject    of  the
          representation with another defendant whom the
          lawyer knows to be represented by another
          lawyer in the matter, unless the lawyer has
          the consent of the other lawyer or is
          authorized to do so by law or a court order.
          These Canons are part of the Local Rules of
          this Court and have the force of law.

The District Court, with respect to this instruction, did not

instruct the jury that it had to find whether or not a violation

of Rule 4.2 occurred.

          Ducoudray attacks the Rule 4.2 instruction on a number

of grounds.    None, however, has merit.

          Ducoudray first argues that the instruction on Rule 4.2

"was unwarranted by the facts."       He contends that "Frankel never

represented [Castillo] in any federal case."         He also contends

that the record does not support the finding that Ducoudray knew

that Castillo was a defendant in the same case as Hernández.        He

argues, therefore, that in meeting with Castillo he could not

possibly have been violating Rule 4.2.

          It    does   not   appear    that   Ducoudray   raised   this

"unwarranted by the facts" objection to the Rule 4.2 instruction

below.   But, even if our review of the District Court's decision




                                - 24 -
to give this instruction on this record is only for an abuse of

discretion, we find none.          See United States v. Anguiano-Morfin,

713 F.3d 1208, 1209 (9th Cir. 2013) ("We review for an abuse of

discretion whether [a jury instruction] has some foundation in the

evidence." (internal quotation marks omitted)).

            Castillo    testified      that     Ducoudray     told    him     that

Ducoudray had permission from Castillo's lawyer to speak with

Castillo.     That     statement    reasonably     provides    circumstantial

evidence that Ducoudray understood Castillo to be represented in

the federal matter, especially when that statement is considered

in the context of the tight timing between Castillo being named in

the federal indictment with Hernández and Ducoudray's decision to

go visit Castillo in the correctional facility in New York City.

Moreover, when the fact of Castillo's representation came up during

the   conversation     between     Ducoudray    and   Castillo,      the    record

supportably shows that Ducoudray did not stop the conversation.

In    addition,   Frankel,   Castillo's        lawyer,   testified     that    he

represented Castillo with respect to the federal charges and that

he had not given Ducoudray permission to speak with Castillo.14


       14
        Ducoudray separately contends that, at the time of his
visit with Castillo, Castillo "was simply not 'another defendant
who the lawyer knows to be represented by another lawyer in the
matter,'" because the sealed indictment charging both Castillo and
Hernández was not entered on the docket until the day of
Ducoudray's visit with Castillo. But, Ducoudray does not identify
where the record shows that he made the argument below that the
timing of the sealed indictment's entry into the docket somehow


                                    - 25 -
Thus, the record clearly provides "some foundation," id., for

finding that Frankel did represent Castillo with respect to the

federal   charges     against     Castillo,     that   Ducoudray    understood

Castillo to be a represented co-defendant in the same matter as

Hernández, and that Ducoudray nevertheless chose to speak with

Castillo without "the consent of [Castillo's] lawyer" in that

matter or "authoriz[ation] to do so by law or a court order."

Model Rules of Prof'l Conduct r. 4.2.

              Ducoudray    argues,      in   the   alternative,         that   the

instruction was given in error because the jury was in no position

to determine what conduct would constitute a violation of Rule

4.2.   Here, too, Ducoudray's challenge to the instruction was not

apparently made below.           But, once again, even if we review the

instruction for an abuse of discretion, see United States v.

Gonzalez, 570 F.3d 16, 21 (1st Cir. 2009), we find none.

              Ducoudray's challenge on this score appears to rest

entirely on his assertions in his brief about Rule 4.2's ambiguity.

But, Ducoudray points to no authority to support his contention

that a jury may not be permitted to pass on whether a professional

rule   such    as   Rule   4.2   was    violated   simply   due    to    possible



precludes a finding that, at the time of his visit with Castillo,
Ducoudray had knowledge that Castillo was a defendant in the same
case as Hernández. And, in any event, the evidence discussed above
permitted the jury to infer that Ducoudray did know that Castillo
was represented by Frankel in the federal matter, notwithstanding
the timing of the entry on the docket of the sealed indictment.


                                       - 26 -
uncertainty     about   what   the    rule     prohibits.      Moreover,    the

government     identifies   precedents        in   which   juries   have   been

permitted to consider the ethical obligations of attorneys under

seemingly similar professional rules, which contain their own

ambiguities.     See, e.g., United States v. Machi, 811 F.2d 991,

1000-02 (7th Cir. 1987).       Accordingly, and in light of the fact

that jury was not instructed that it had to make a determination

regarding whether Ducoudray violated Rule 4.2 or not, we do not

see how we could conclude, based on what Ducoudray has argued in

this regard, that the District Court abused its discretion in

giving this instruction.

             Ducoudray's final challenge to the instruction regarding

Rule 4.2 is that it improperly "relieved the prosecution of its

burden to prove the element of corruption at the heart of both

counts of the indictment by allowing the jury to rely upon its

view of whether [Rule 4.2] was violated to find the required mens

rea of both offenses."15        Ducoudray further contends that this

instructional error is one of law and should be reviewed de novo.


     15 In his opening brief, Ducoudray makes only passing
reference to the additional argument that he had no opportunity at
trial to "fairly address" the purported Rule 4.2 violation "with
facts and argument" or to argue that any violation of Rule 4.2 was
not the corrupt intent charged in the indictment. Thus, we regard
this underdeveloped argument as waived. See Zannino, 895 F.2d at
17. And, in any event, the record reveals that at the beginning
of the second day of trial and prior to Frankel's testimony (and
even before the close of the government's evidence), the District
Court informed the parties that it would be providing an


                                     - 27 -
          But, the instruction, as written, did not tell the jury

that it had to find that proof of the violation of Rule 4.2 in and

of itself would satisfy any element of either of the offenses that

Ducoudray was charged with committing.      Nor, by terms, did the

instruction even tell the jury that proof of such a violation could

in and of itself satisfy any such element.        Accordingly, this

challenge is ultimately to the potentially misleading nature of

the instruction's wording, and so our review of this preserved

challenge to the instruction is only for abuse of discretion.    See

Gonzalez, 570 F.3d at 21.16

          The government contends that the District Court did not

err in providing this instruction.     In so arguing, the government

relies on the explanation that the District Court gave when it

addressed this issue in the context of a post-conviction motion

for bail by Ducoudray.   There, the District Court stated that the




instruction concerning Rule 4.2. Additionally, the record reveals
no objection was offered by Ducoudray to the inclusion of the Rule
4.2 instruction on the grounds that he lacked the opportunity to
introduce or elicit evidence to rebut a purported Rule 4.2
violation.
     16 Below, Ducoudray requested the District Court change the
"have the force of law" language in the instruction to "carry
enforceability" by arguing that while Rule 4.2 embodies a "rule of
ethics" and describes conduct that would be "improper" and
"unethical" for a lawyer to undertake, a violation of Rule 4.2 by
a lawyer is "not illegal" because Rule 4.2 is "not a rule of law."
Ducoudray, however, does not raise this argument in his briefing
on appeal, and so we do not consider it. See United States v.
Bauzó-Santiago, 867 F.3d 13, 21 (1st Cir. 2017).


                              - 28 -
instruction "did not tell the jury that [Ducoudray's] alleged

conduct was, in fact, an ethical violation, and a violation of

law," "did not suggest an absolute prohibition on legal visits to

represented persons," and "did not direct[] the jury to determine

that [Ducoudray] had the requisite mens rea."        United States v.

Ducoudray-Acevedo, Criminal No. 15-166 (ADC), 2017 WL 1286783, *3

(D.P.R. Apr. 5, 2017) (internal quotation marks omitted).           Thus,

according to the government, this instruction was not improper

because it merely identified "peripheral concepts" relevant to the

jury's evaluation of Ducoudray's conduct and, insofar as it served

this evidentiary function, it was perfectly permissible.       See id.

          As     the   government   notes,   precedent   supports     the

conclusion that proof of a violation of a professional rule may

play an evidentiary function in assessing the mens rea of a lawyer

charged with criminal conduct in other contexts. See, e.g., United

States v. Kelly, 888 F.2d 732, 744 (11th Cir. 1989); Machi, 811

F.2d at 1000-02; United States v. DeLucca, 630 F.2d 294, 301 (5th

Cir. 1980); see also, e.g., United States v. Klauber, 611 F.2d

512, 520 (4th Cir. 1979).       And while it is true, as Ducoudray

argues, that none of these cases concern Rule 4.2, we do not see

why that fact shows that proof of a violation of Rule 4.2 could

not serve a similar evidentiary function concerning Ducoudray's

mens rea here.




                                - 29 -
          The     fact   that   Ducoudray   was   visiting   Castillo   in

violation of a professional ethical rule, such as Rule 4.2, could

well be relevant to an assessment of whether he was acting with

the required "corrupt" intent, rather than with the innocent intent

that Ducoudray contended that he had.       And Ducoudray identifies no

authority that supports a contrary conclusion.          Thus, Ducoudray

supplies no basis on which we could rule that the District Court

abused its discretion, insofar as the supplemental instruction

served only the function of identifying the proscription that Rule

4.2 sets forth.

          Moreover, Ducoudray never explains how the wording of

the instruction misled the jury into concluding that proof of a

violation to Rule 4.2 could, in and of itself, "stand in for the

elements of the offenses," rather than that such proof could simply

be relevant to the determination of whether Ducoudray had acted

with the requisite corrupt intent.17        Consequently, we do not see

a basis for concluding that the inclusion of this supplemental

instruction was an abuse of discretion. After all, the instruction

was given only as a supplemental instruction after the jury had

been separately instructed about the elements of each offense that

it was required to find in order to convict Ducoudray.           And the


     17Ducoudray, in passing, asserts that the wording of the Rule
4.2 instruction "implied that [Ducoudray] had violated [Rule
4.2]," but never explains how exactly the text of the instruction
implies that is so.


                                  - 30 -
instruction, which clearly appeared as a stand-alone instruction

in the written instructions, did not, by its terms, reference any

of the elements of the offenses or say anything about how Rule 4.2

related to them.

          For these reasons, we see no merit in Ducoudray's various

challenges to the supplemental instruction concerning Rule 4.2.

And thus we see no basis for concluding that áthis instruction

requires that the convictions -- with respect to either offense

-- be vacated.

                                  IV.

          Ducoudray's final argument is that his convictions must

be reversed on the distinct ground that, even if no single error

at trial warrants reversal, the cumulative effect of the errors

does.    But,    although   "[i]ndividual   errors,   insufficient   in

themselves to necessitate a new trial, may in the aggregate have

a more debilitating effect," United States v. Sepulveda, 15 F.3d

1161, 1195-96 (1st Cir. 1993), the cumulative error doctrine offers

no help to Ducoudray.

          Our review of the individual alleged errors reveals that

there were either no errors or that the objections to the alleged

errors were waived, with the sole exception being the admission of

the Frankel email to the AUSA.    But, as to that email evidence, we

found that any error on the part of the District Court in admitting




                                - 31 -
that   evidence   was   harmless.    As   such,   we   find   Ducoudray's

cumulative error argument to be meritless.

                                    V.

           The judgment is affirmed.




                                - 32 -
