          United States Court of Appeals
                     For the First Circuit


No. 13-2520

                    UNITED STATES OF AMERICA,

                           Appellee,

                               v.

              ALEXIS AMADOR-HUGGINS, a/k/a/ Negro,

                      Defendant-Appellant.


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

       [Hon. Jay A. García-Gregory, U.S. District Judge]


                             Before

                 Thompson, Kayatta, and Barron,
                        Circuit Judges.


          Arza Feldman and Feldman and Feldman were on brief, for
appellant.
          Susan Jorgensen, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, were on
brief, for appellee.


                        August 26, 2015
          KAYATTA,     Circuit    Judge.     Alexis      Amador-Huggins     was

convicted of attempted carjacking resulting in death, 18 U.S.C.

§ 2119(3), aiding and abetting the same, id. § 2, and use of a

firearm resulting in death, id. § 924(j).                The district court

sentenced him to life imprisonment and also imposed restitution in

the amount of $13,332.86.        He now appeals his conviction and the

order of restitution.     Finding no reversible error, we affirm.

                            I.     Background

          Amador-Huggins's       appeal    trains   on    a   number   of   the

district court's evidentiary rulings.           We therefore recite the

facts in a "balanced" manner in which we "objectively view the

evidence of record."    United States v. Burgos-Montes, 786 F.3d 92,

99 (1st Cir. 2015) (internal quotation marks omitted).

          In June 2012, seventeen-year-old Stefano Steenbakkers

Betancourt departed from his sister's birthday party driving his

grandmother's white Lexus.        His mother left with his sister and

other party guests a few minutes later.               As she was driving,

Betancourt's mother received a call from Betancourt, who said that

another vehicle was hitting1 him from behind and that he was scared


     1 At trial, Betancourt's mother used both the word "bumping"
and the word "hitting" to describe what the Jeep was doing to the
Lexus.   Amador-Huggins presented testimony that when she first
spoke to the police, the Spanish word she used to relay what her
son had told her in English was "choca[n]do," which defense counsel
suggested should be translated as "crashing." Morales, who was in
the Jeep and observed the events first-hand, used the word "bump"
in his testimony.
                                   - 2 -
and didn't know what to do.        His mother told him to read her the

license plate number, which he did, and she repeated it over and

over to the passengers in her vehicle.       The phone then went dead.

A bit further on, Betancourt's mother found the Lexus on the side

of the road with her son inside, shot in the head.        He died three

days later.

           Law enforcement officers arrested Amador-Huggins and

John   Anthony   Morales   Lopez    ("Morales"),   charging   them   with

attempted carjacking, 18 U.S.C. § 2119(3), use of a firearm, id.

§ 924(c)(1)(A)(iii), use of a firearm resulting in death, id.

§ 924(j), and with aiding and abetting each other in furtherance

of those crimes, id. § 2.

           At Amador-Huggins's trial, the key testimony came from

Morales, who pled guilty pursuant to a plea agreement, and who

admitted to shooting Betancourt as part of an attempted carjacking.

Morales testified to the following:

           Amador-Huggins introduced the idea of the carjacking

while he and Morales were driving together in a white Jeep, saying

that friends of his would pay the two of them $1,500 to carjack an

SUV.   They drove to a housing project in Catano and got a gun from

a man who introduced himself as "El Gordo."        They left after about

20 minutes and drove toward Dorado, with Amador-Huggins driving

and Morales in the passenger seat.      They saw the white Lexus driven

by Betancourt and decided to steal it.

                                   - 3 -
            Amador-Huggins then explained the plan:        he would give

the Lexus "a little bit of a bump" and the driver would pull over,

thinking it was an accident.    At that point, they would pull a gun

on   the   driver.    Amador-Huggins   bumped   the    Lexus   once;   when

Betancourt didn't stop, Amador-Huggins bumped it again, this time

a little harder.     However, Amador-Huggins told Morales he didn't

want to hit the Lexus too hard because he was driving his mother's

car and didn't want to damage it.      Morales also estimated that the

traffic was moving at only about 10 to 15 miles per hour.

            When Betancourt didn't pull over after a third bump,

Morales and Amador-Huggins got "ticked off."          Amador-Huggins gave

Morales the gun and told Morales that he was going to cut off the

Lexus, at which point Morales should do "whatever it took" to get

the Lexus.     The Jeep pulled in front of the Lexus and Morales got

out and shot into the vehicle five or six times.         Morales got back

into the car, and Amador-Huggins calmly said, "Man. I think you

killed him."     Amador-Huggins was smiling as he said it.

            The two drove back to the housing project in Catano.

They found El Gordo with some associates in front of the basketball

court.     After Amador-Huggins explained what had happened--that

they didn't manage to steal a car but they did manage to kill

someone--the group "congratulat[ed] [Morales] for what happened"

as they hung out, "celebrating."



                                 - 4 -
           In addition to the foregoing testimony by Morales, the

government also presented:              evidence that a white Jeep Compass

registered to Amador-Huggins but used by and paid for by his mother

bore the exact plate number read by the victim to his mother;

testimony by Amador-Huggins's mother that her son had borrowed the

Jeep the night of the shooting; highway toll booths records showing

the location of the Jeep at various times the night of the

attempted carjacking; testimony by an eyewitness to the shooting

describing   an   individual       in    the    Jeep     that   matched   Morales's

description; and testimony by a witness who knew them both and saw

them together in the Jeep the night of the attempted carjacking.

Presumably   because    of   the    overwhelming          evidence   that   Amador-

Huggins was driving the Jeep that contacted and cut off the

victim's   car,   the   defense         focused     on    undermining     Morales's

testimony that Amador-Huggins had deliberately bumped into the

Lexus and that he was a knowing participant in the carjacking.

                               II.       Analysis

A.   Prior Bad Acts

           Amador-Huggins first challenges two comments by Morales

that suggested that Amador-Huggins used marijuana and Percocet in

the celebration with El Gordo after the attempted carjacking.                   He

argues that those statements are evidence of "prior bad acts" that

are inadmissible under Federal Rule of Evidence 404(b).                        The



                                        - 5 -
parties agree that our review is for abuse of discretion.       See

United States v. Appolon, 715 F.3d 362, 371 (1st Cir. 2013).

           The events that led to the challenged comments are as

follows:   The government sought to introduce Morales's testimony

that he and Amador-Huggins had consumed Percocet when they first

arrived at El Gordo's apartment to get the gun before the attempted

carjacking.     The defense objected    and, after a sidebar, the

government agreed not to ask Morales about his and Amador-Huggins's

drug use unless the defendant inquired into it on cross. Morales's

testimony continued.    When the government asked him to describe

the return to the housing project where they celebrated the murder

after the attempted carjacking, the following exchange occurred:

           Q.   And what happened when you and Amador
           Huggins saw Gordo and four of his friends?

           A. Well, at that point he gave him the gun
           back.   We bought illegal substances there,
           marijuana, Perco[cet].

           [Defense Counsel]:   Same objection, Judge.

           [Prosecution]:
           Q. You bought illegal substances?2

           A.   Yes, I did.

           The defense made no further objection at that time, and

the judge did not make a ruling.   A few sentences later, as Morales




     2 The government argues in its brief that the "you" in the
transcript was emphasized, meaning the sentence should be read as
an attempt to limit any damaging effects from the "we."
                                - 6 -
was    still     describing   the    celebration,    the   following   exchange

occurred:

                Q.   And then what happened?

                A. At that moment, he with stayed there [sic],
                and we bought the pills. I had my marijuana,
                and my Perco[cet], and we bought some beer.
                And we explained what happened there, and we
                just continued like that.

                The defense did not object to the second statement.

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

or other act is not admissible to prove a person's character in

order to show that on a particular occasion the person acted in

accordance with the character." Fed. R. Evid. 404(b)(1). However,

the Rule also provides that such evidence may be admissible for

other purposes, such as to prove motive, opportunity, or intent.

Fed.       R.   Evid.   404(b)(2).     When    a   defendant   challenges   the

admissibility of prior bad acts evidence, this circuit usually

asks whether the evidence has "'special relevance,'" meaning it is

"relevant for any purpose apart from showing propensity to commit

a crime."3       United States v. Doe, 741 F.3d 217, 229 (1st Cir. 2013)

(quoting United States v. Rodríguez-Berríos, 573 F.3d 55, 64 (1st

Cir. 2009)), cert. denied, 135 S. Ct. 168 (2014).




       Even if it has special relevance, evidence may still be
       3

excluded if the court concludes under Federal Rule of Evidence 403
that its probative value is substantially outweighed by the danger
of unfair prejudice. United States v. Habibi, 783 F.3d 1, 4 (1st
Cir. 2015). Amador-Huggins makes no Rule 403 argument, however.
                                       - 7 -
            Here, we need not engage in this inquiry because it is

immediately clear that any possible error from Morales's two stray

uses of the word "we" was harmless, meaning it was "highly probable

that the error did not contribute to the verdict."         United States

v. Varoudakis, 233 F.3d 113, 125-26 (1st Cir. 2000) (internal

quotation marks omitted).     In the context of this case, it could

hardly have made any difference to the jury whether Amador-

Huggins's celebration of the death of a young man was accompanied

by Percocet rather than, for example, milk. In short, any material

prejudice flowed from the part of the story to which there was no

objection, with the Percocet serving at most like a small match

added to a raging conflagration.        See United States v. Williams,

985 F.2d 634, 638 (1st Cir. 1993) (erroneous admission of Rule

404(b) evidence was harmless because, in light of the properly

admitted evidence, it was unlikely that the 404(b) evidence had

prejudicial impact).     Any error, if it occurred, was therefore

harmless.

B.   Expert Testimony on Bumpers

            Amador-Huggins   next    challenges   the   district   court's

denial of his mid-trial request for a continuance to call an expert

on bumper damage in response to what he characterized as expert

testimony of an FBI agent called by the government.         The district

court's decision to admit or exclude expert testimony is reviewed



                                    - 8 -
for "manifest abuse of discretion."      United States v. Montas, 41

F.3d 775, 783 (1st Cir. 1994).

            At trial, Amador-Huggins tried to discredit Morales by

arguing that, as Amador-Huggins put it in his brief, Morales's

"claims that the Jeep struck the Lexus three times, at 10 to 15

miles per hour, could not possibly be true because, had that

occurred, the bumper would have been badly dented," when in fact,

the bumper of the Jeep was only scratched.                To counter this

argument, the government called an FBI agent, Ruben Marchand, to

testify about the damage to the Jeep.         When the government asked

Marchand what material bumpers are typically made of, the defense

objected on the grounds that Marchand was not qualified as an

expert, and that allowing the "unannounced expert testimony" would

be "trial by ambush."    The district court overruled the objection,

and Marchand testified that late-model vehicles generally have

plastic bumpers that are "made to bounce back once [they have] an

impact."     He   also   testified,   based    on   his    own   experience

investigating carjackings that used the bumping technique, that it

was not unusual for bumpers to sustain little damage in carjackings

because the carjackers don't want to damage the car they are

stealing.

            After Marchand had testified, defense counsel moved for

a continuance and for the court to appoint an expert in bumpers to

counter the "expert" testimony of Marchand.         See Fed. R. Evid. 702

                                 - 9 -
(allowing for testimony by expert witnesses).    The district court

denied this motion, ruling that Marchand had offered lay testimony

based on his on-the-job experience investigating bumpers.   Amador-

Huggins now argues that the district court abused its discretion

in denying him a bumper expert to counter Marchand's "expert"

testimony.

          As an initial matter, we are inclined to agree that the

district court did not abuse its discretion in finding that

Marchand presented only lay testimony.     Marchand did not present

himself as an expert, and on cross-examination made it clear that

he had no knowledge of bumper resistance or the bumpers' technical

specifications.   Rather, his knowledge of bumpers was "rationally

based on the witness's perception," Fed. R. Evid. 701(a), acquired

in the course of his work as an FBI agent.     See United States v.

Habibi, 783 F.3d 1, 4-6 (1st Cir. 2015).   Marchand was not offering

a research-backed opinion that under no conditions would a bumper

be damaged after being hit at 10-15 miles per hour by a vehicle

moving in the same direction. He was simply rebutting the argument

to the contrary--that Morales's testimony "could not possibly be

true"--because, in his experience, he had seen bumpers that had

been hit under circumstances similar to those Morales described

that were not "badly damaged."    And if Marchand's testimony was




                              - 10 -
not expert testimony under Rule 702, Amador-Huggins's argument

fails.4

          Moreover, if the purpose of the expert testimony was to

convince the jury that the events described in Morales's testimony

were, according to the laws of physics and the crash-resistance of

Jeep Compass bumpers, impossible, the need for such testimony would

have been obvious even before trial began.        Indeed, in his opening

statement to the jury, defense counsel told the jury they would

hear testimony that the Jeep was repeatedly hitting the Lexus, but

that they would "see that the front part of the Jeep shows no

evidence of being involved in a repeated hitting of two cars."

Counsel's claims of ambush, then, ring entirely hollow.

          Finally, the evidence was overwhelming that, as Morales

testified,   the   white   Jeep   bumped   the   Lexus.   Why   else   did

Betancourt call his mother to say he was "scared" and read the

plate numbers to her?      Whether Morales's estimate of 10-15 miles

was accurate (and whether it was an estimate of the Lexus's speed

or the difference in speed between the vehicles) was simply not




     4 Amador-Huggins's argument that the government agreed that
Amador-Huggins should be allowed to appoint an expert is also
unconvincing. The prosecution's statement that "if the Court is
inclined to grant him an expert, he is entitled to present his
defense" and similar statements were simply a preface to the
prosecution's request that if the court was inclined to allow the
expert, that the court should ensure that it should not unduly
delay the proceedings.
                                  - 11 -
something that could have made a difference in this case.             The

district court therefore did not manifestly abuse its discretion.

C.   Timing of the Curative Instruction on a Witness's Improper
     Comment

          Amador-Huggins   next   argues   that    the   district   court

abused its discretion when it denied his request for a curative

instruction to correct an improper comment by an FBI agent at the

time it was requested, and instead gave the instruction as part of

the jury charge.

          The comment came on June 4, when defense counsel was

pressing an FBI agent on why she had never used a polygraph.5          The

agent said "I have never felt the need for [a polygraph].           I have

never lost a case either, but I have never used a polygraph."

Defense did not object at the time, and in fact responded by

saying, "There's a first time for everything, ma'am?"

          On June 6, the next day of trial, defense counsel asked

the court to give a curative instruction to the jury "today" that

would instruct them to disregard the "never lost a case" comment.

The judge indicated that he would give the instruction at the end

of trial, and defense counsel said, "Okay."       The next day, June 7,

the district court gave the instruction as part of the jury charge.

Amador-Huggins now argues that the district court erred by not




     5 The line of questioning stemmed from evidence that Morales
had failed a polygraph.
                              - 12 -
giving a curative instruction when it was first requested on

June 6.

              Whether trial counsel's "okay" waived the issue, we need

not decide.       Nor need we decide whether our standard of review is

for   plain     error,    as    the   government    argues,   or     for   abuse    of

discretion, as Amador-Huggins argues.                The trial court handled

this issue well under any standard.               The moment when the arguably

objectionable response from the witness was fresh was lost due to

defense counsel's lack of objection.                 Amador-Huggins offers no

support for the premise that a belated curative instruction need

randomly be given on such a minor evidentiary issue stemming from

an isolated comment, when the request for such an instruction comes

two days after the arguably objectionable testimony and shortly

before    the    end     of    the    evidence.     Indeed,    bringing     up     the

instruction out of context may well have highlighted the objected-

to    testimony    as     having      more   significance     than    it   actually

possessed.

D.     Admission of Amador-Huggins's "Star Witness" Statement

              The district court admitted Morales's testimony that

Amador-Huggins told him, while they were both being detained before

trial, that Amador-Huggins hoped there would not be a "star

witness" against him.            The parties agree that our review of how

the district court applied the hearsay rules to these facts is for

abuse of discretion.           See United States v. Omar, 104 F.3d 519, 522

                                         - 13 -
(1st   Cir.    1997).     Although    the     parties   debate   whether   this

statement is admissible as a statement against penal interest under

Federal Rule of Evidence 804(b)(3), this statement by Amador-

Huggins is clearly admissible as a statement of a party-opponent

under Rule 801(d)(2)(A).       See United States v. Avilés-Colón, 536

F.3d 1, 23 (1st Cir. 2008) (stating that under Rule 801(d)(2)(A),

"an out-of-court statement is not hearsay if it is offered against

the party and it is the party's own statement").                     While the

district court seemed to admit the statement under Rule 804(b)(3),

this court can affirm the admission "on any independent ground

made apparent by the record."         United States v. Cabrera-Polo, 376

F.3d 29, 31 (1st Cir. 2004).

E.     Questioning a Witness about Uncharged Criminal Activity

              Amador-Huggins argues that the district court violated

his rights under the Confrontation Clause of the Sixth Amendment

of the United States Constitution when it prevented him from

questioning a witness about whether the witness had ever committed

a crime.      We review Confrontation Clause challenges "de novo to

determine     whether    defense   counsel     was   afforded    a   reasonable

opportunity to impeach adverse witnesses.            But when that threshold

is reached, any constraints imposed by the trial court on the

extent and manner of cross-examination are reviewed only for abuse

of discretion."     United States v. Villarman-Oviedo, 325 F.3d 1, 14

(1st Cir. 2003).        Amador-Huggins concedes that our review should

                                     - 14 -
be   for   abuse   of   discretion,     which    in   the    context   of   the

Confrontation Clause requires us to find that the trial judge

afforded    the    defendant   a    fair   opportunity      to   cross-examine

witnesses to establish "a reasonably complete picture of the

witness's veracity, bias, and motivation."            Stephens v. Hall, 294

F.3d 210, 226 (1st Cir. 2002) (internal quotation marks omitted).

            Amador-Huggins argues on appeal that the district court

did not allow him to probe into the potential bias of Juan

Rodriguez, a witness who testified that, as he was sitting outside

smoking marijuana at a housing project in Caguas the night of the

attempted carjacking, he saw Morales and Amador-Huggins arrive in

a Jeep.     Rodriguez was an unwilling witness who testified under a

pseudonym and insisted on being brought to the courtroom in

shackles to make it clear that he was there involuntarily.

            On cross-examination, defense counsel sought to question

Rodriguez about his involvement in drug dealing and burglary, but

the government objected on relevance grounds under Federal Rules

of Evidence 401 and 403, and because neither act was a "crime of

honesty" that fell under the purview of Rule 608(b).               See Fed. R.

Evid. 608(b) (allowing for impeachment of witnesses based on their

character for truthfulness or untruthfulness).              The district court

sustained the objection.       On redirect examination, the government

asked Rodriguez if he had ever been convicted of a crime, to which

Rodriguez    answered   no.        Immediately   afterwards,      on   recross,

                                     - 15 -
defense counsel asked Rodriguez if he had ever "committed a crime."

The government objected and the district court sustained the

objection.   Amador-Huggins now appeals that final ruling.

          Amador-Huggins's    argument   on    appeal   that   his

Confrontation Clause rights were violated is that he needed to be

able to probe Rodriguez's potential bias and prejudice. He alleges

that Rodriguez may have been prejudiced against Amador-Huggins

"based on their narcotics relationship," and that the fact that he

insisted on appearing shackled suggested bias.    However, Amador-

Huggins points to nothing in the record to suggest he raised any

theory of bias below.    See United States v. Figueroa, 818 F.2d

1020, 1025 (1st Cir. 1987) (noting that arguments raised for the

first time on appeal are waived). Moreover, the bias theory raised

on appeal is premised on something that is not in the record:

Amador-Huggins's drug dealings.    Amador-Huggins--who objects to

evidence that he used Percocet--makes no claim that he wanted to

put in evidence of his drug dealings.    Thus, his theory for why

the disallowed inquiry was necessary to establish a "reasonably

complete picture" is speculative, lacking in support for its

foundational premise, see United States v. Martínez-Vives, 475

F.3d 48, 53 (1st Cir. 2007), and likely waived.   The trial court's

ruling was not an abuse of discretion.




                              - 16 -
F.    Restitution

           Amador-Huggins's final argument is that the district

court erred in awarding $13,332.86 in restitution to Betancourt's

family.   As defense counsel did not object below, our review is

for plain error.     See United States v. Sánchez-Maldonado, 737 F.3d

826, 828 (1st Cir. 2013).          "To show plain error, the appellant

must demonstrate: '(1) that an error occurred (2) which was clear

or   obvious   and   which   not   only   (3)   affected    the    defendant's

substantial rights, but also (4) seriously impaired the fairness,

integrity, or public reputation of judicial proceedings.'"                   Id.

(quoting United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)).

Amador-Huggins cannot so demonstrate.

           Betancourt's      father,   who   lives   in    the    Netherlands,

claimed   $26,665.72    in   losses,   including     funeral      expenses   for

services in both the Netherlands and Puerto Rico, flights for eight

family members to attend the funeral in Puerto Rico, hotels for

the family, the cancellation fee for Betancourt's private school,

and payment to a traumatology institute.6          Without discussion, the

district court awarded the family $13,332.86.                  Amador-Huggins

makes two claims of error: that the amount was arbitrary because

none of the claimed expenses precisely added up to the amount




      6 The government of the Netherlands reimbursed $3,000 of the
family's expenses, so the $26,665.72 represents the family's
claimed costs after the reimbursement.
                                   - 17 -
awarded, and that the district court was not authorized to award

restitution either for two funerals or for travel expenses under

the Mandatory Victims Restitution Act ("MVRA"), 18 U.S.C. § 3663A.7

          We begin with the latter claim.    The MVRA provides that

an order for restitution arising from a victim's death shall cover

"an amount equal to the cost of necessary funeral and related

services."   Id. § 3663A(b)(3).     The expenses for two funerals

totaled $11,057.97.   The amount requested on top of that included

$15,005.70 in airline fares for eight people between Puerto Rico

and the Netherlands, as well as $2,576.56 in hotel fees.      Neither

party cites any case that speaks one way or the other to the

question of whether travel expenses are "necessary . . . related

services."   Id. § 3663A(b)(3).   In the absence of any guidance, we

conclude that under these circumstances, where a minor victim's

immediate family members lived in a different country, some travel

expenses can without plain error be treated as necessary services

related to the funeral.

          Amador-Huggins   also   argues   that   the   amount--almost

exactly one-half of    the expenses listed above        that were not

reimbursed by the government--was arbitrary.      To a certain extent,

any line drawing here would be arbitrary, but that does not make


     7 The district court said that the restitution was being
awarded under 18 U.S.C. § 3663, which appears to be a misstatement,
but any discrepancy is irrelevant because the language Amador-
Huggins challenges is identical under both provisions.
                              - 18 -
it inequitable or unsustainable.            See Sánchez-Maldonado, 737 F.3d

at 828 ("A district court's calculation of restitution is not held

to standards of scientific precision. As long as the court's order

reasonably    responds      to    some    reliable    evidence,   no   more     is

exigible." (citation omitted)).             Here, the expenses allowed were

sufficient to cover only a portion of the claimed expenses related

to   the   funeral   that   took    place    in   Puerto   Rico   (thus   likely

excluding some of the airfare for eight family members traveling

from the Netherlands), and none of the expenses for the Netherlands

funeral.

            In any event, even if the district court's approach was

error, we cannot conclude it was plain error that affected Amador-

Huggins's substantial rights or seriously impaired the fairness,

integrity, or public reputation of judicial proceedings.                  Id.

                                 III.    Conclusion

            For the foregoing reasons,8 we affirm.




      8Because we found no error in the district court's rulings,
we also reject Amador-Huggins's claim of cumulative error.
                                        - 19 -
