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[[COURTLISTENER_SUBOPINION {"id":"11059700","type":"010combined","part":"opinion","author":null,"source_field":"html_with_citations"}]]
United States Court of Appeals
For the First Circuit
No. 24-1184
UNITED STATES OF AMERICA,
Appellee,
v.
VICTOR SOTO-SANCHEZ, a/k/a Newton Batista, a/k/a Hooka,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Lance E. Walker, U.S. District Judge]
Before
Barron, Chief Judge,
Montecalvo, and Rikelman, Circuit Judges.
Edward Crane for appellant.
Brian S. Kleinbord, Assistant United States Attorney, with
whom Darcie N. McElwee, United States Attorney, was on brief, for
appellee.
May 27, 2025
RIKELMAN, Circuit Judge. Victor Soto-Sanchez appeals
his conviction and sentence for possession of a controlled
substance with an intent to distribute. He argues that his Sixth
Amendment right to confront the witnesses against him was violated
when the district court permitted a police officer to testify at
trial about the substance of an informant's tip. Soto-Sanchez
also claims that the district court erred in applying a two-point
enhancement for obstruction of justice in determining his
sentence.
Although we agree with Soto-Sanchez that his Sixth
Amendment rights were violated, we conclude that the error was
harmless given the overwhelming evidence against him.
Nevertheless, we reiterate that the government cannot avoid the
requirements of the Confrontation Clause by labeling improper
testimony as mere background context. We also reject
Soto-Sanchez's sentencing challenge. We conclude that he has
waived his legal and factual arguments related to his claim that
only conduct that independently violates federal law can qualify
as "unlawful influence" under section 3C1.1 of the U.S. Sentencing
Guidelines. Thus, we affirm his conviction and sentence.
I. BACKGROUND
Because Soto-Sanchez does not challenge the sufficiency
of the government's evidence against him at trial, we recite the
facts in a "balanced" manner and "objectively view[] the evidence
- 2 -
of record." United States v. Velazquez-Fontanez,
6 F.4th 205, 212
(1st Cir. 2021) (quoting United States v. Amador-Huggins,
799 F.3d
124, 127
(1st Cir. 2015)).
A. Investigation
In late 2021, Detective Duane Cloutier of the Waterville
Police Department received a phone call from a confidential
informant who wanted to provide a tip on a "large-scale drug
dealer" in Waterville, Maine, in exchange for leniency for another
individual with pending charges. The informant described the
alleged drug dealer as a Dominican man in his mid-30s who sold
"large quantities" of three types of fentanyl and crack cocaine;
lived in an apartment on College Avenue with Jasmine Dostie, who
drove a white BMW; and had firearms in his residence.
After receiving this information, law enforcement
officers conducted various checks on Jasmine Dostie to confirm
that she drove a white BMW and lived at 185 College Avenue, Unit 1.
The officers then used the informant to conduct two controlled
buys of fentanyl from that apartment and determined that a man
matching Soto-Sanchez's description was involved in the sales. In
addition, the officers conducted surveillance and additional
checks to confirm that Soto-Sanchez was associated with the 185
College Avenue address.
Based on the investigation, surveillance, and controlled
buys, the officers applied for and received a search warrant for
- 3 -
Soto-Sanchez, his vehicle, and the apartment on College Avenue.
Officers executed the search warrant on December 14, 2021, and
found cash, bank cards, and identification cards on Soto-Sanchez.
Afterwards, they arrested him and brought him to the police
station. Officers then searched the apartment and recovered over
ten pounds of cocaine and fentanyl, many firearms and magazines,
cash, and assorted drug paraphernalia and equipment. Officers
also discovered a notebook that appeared to be a drug ledger
recording names, drug amounts, and dollar amounts in Spanish, as
well as documents indicating that Soto-Sanchez resided in the
apartment.
The police then interviewed Soto-Sanchez at the station.
After being advised of his Miranda rights, Soto-Sanchez stated
that the drugs found in the apartment belonged to "dark-skinned
people" "from downtown" who paid him to store them and that the
guns belonged to friends who visited. He also informed the police
that his DNA and fingerprints would likely be found on the drugs
and guns, because he touched the items when they arrived at his
apartment.
B. Trial
After a grand jury indicted Soto-Sanchez on a single
count of possession with intent to distribute cocaine and fentanyl
in violation of
21 U.S.C. § 841
(a)(1), he proceeded to trial. The
government called Detective Cloutier as its second witness. Before
- 4 -
the detective took the stand, Soto-Sanchez objected on
Confrontation Clause and hearsay grounds to any testimony by the
detective about the substance of the confidential informant's tip.
In response, the government claimed that the substance of the tip
would be offered only "to show the effect on the reader or listener
[and] to explain the steps [Detective Cloutier] took in the
investigation," not for its truth. The district court overruled
Soto-Sanchez's objection, confirmed that it was preserved for
appeal, and asked him to object to individual questions as needed
during the direct examination.
Soon after taking the stand, Detective Cloutier
testified that he had received a tip from an informant about a
drug dealer in Waterville, Maine. When the government asked
Detective Cloutier to provide details about the informant's tip,
Soto-Sanchez again objected.1 The government reiterated that the
testimony would "show why Detective Cloutier took the steps he did
in the investigation," and the district court overruled the
objection once more. Detective Cloutier then testified:
The individual told me that this large-scale
drug dealer lived on College Avenue with a
girl named Jasmine Dostie. The individual
told me that the apartment building they live
1At this point in the direct examination, Soto-Sanchez
objected on hearsay grounds only, despite raising both a hearsay
and a Confrontation Clause objection before Detective Cloutier
took the stand. The government agrees that his initial objection
was sufficient to preserve the Confrontation Clause challenge on
appeal.
- 5 -
in was the last apartment building on the
right-hand side if you were driving from
Waterville to Fairfield. The individual told
me that the drug dealer is a Dominican male
that goes by the street name Hooka and is in
his mid[-]30s. The individual told me that
Hooka sells three different types of fentanyl,
along with crack cocaine. The individual told
me that Hooka does not sell small quantities;
he sells large quantities. The three
different kinds of fentanyl the individual
said was green, which was the most potent,
white, which was a little less potent [than]
the green, and then brown, which was the least
potent. Besides that, the individual said
that Hooka bought Jasmine a white BMW that
they use to travel in, and the individual also
said that, having been in the apartment,
they'd seen pistols in the apartment.
The district court did not revisit Soto-Sanchez's objection
immediately after this testimony. Instead, the government
proceeded with its direct examination of Detective Cloutier,
followed by defense counsel's cross-examination, and then
re-direct, and re-cross.
More than two hours after Detective Cloutier testified
about the substance of the informant's tip, he left the stand. At
that point, the district court sua sponte provided a limiting
instruction to the jury:
Early in his direct examination when [the
prosecutor] was asking Detective Cloutier
questions specifically about
the . . . confidential informant, and
specifically statements that Detective
Cloutier said that the confidential informant
made to him, those statements were not offered
by the Government and you are not to consider
them as evidence supporting the subject of
- 6 -
those statements. They're not offered for the
truth of the matter asserted in those
statements. They're offered for the limited
purpose of explaining the next steps in the
investigation that Detective Cloutier took.
Thank you.
The government also called as a witness Jasmine Dostie,
who was cooperating with the prosecutors under an immunity
agreement. Dostie confirmed that Soto-Sanchez primarily spoke
Spanish; had multiple nicknames, including "Hooka" and "the plug"
(another term for "drug dealer"); and had lived with her at 185
College Avenue, Unit 1. Dostie also testified that Soto-Sanchez
had told her that he sold drugs himself and supplied three
lower-level dealers with drugs: Kenneth Ortega, Brad Brown, and
Tori York.
After a three-day trial, the jury found Soto-Sanchez
guilty of possession with intent to distribute cocaine and
fentanyl. The jury also found beyond a reasonable doubt that
Soto-Sanchez's offense involved 400 grams or more of a mixture or
substance containing a detectable amount of fentanyl, and 500 grams
or more of a mixture or substance containing a detectable amount
of cocaine.
C. Sentencing
In a pre-sentence investigation report ("PSR"), the
probation officer recommended that the district court apply a
two-point enhancement for obstruction of justice under
- 7 -
section 3C1.1 of the U.S. Sentencing Guidelines. Section 3C1.1
reads:
If (1) the defendant willfully obstructed or
impeded, or attempted to obstruct or impede,
the administration of justice with respect to
the investigation, prosecution, or sentencing
of the instant offense of conviction, and
(2) the obstructive conduct related to (A) the
defendant's offense of conviction and any
relevant conduct; or (B) a closely related
offense, increase the offense level by 2
levels.
U.S. Sent'g Guidelines Manual § 3C1.1 (U.S. Sent'g Comm'n 2023)
[hereinafter "U.S.S.G."]. Application Note 4(A) further explains
that the guideline applies to conduct that amounts to "threatening,
intimidating, or otherwise unlawfully influencing a co-defendant,
witness, or juror, directly or indirectly, or attempting to do
so." Id. § 3C1.1 cmt. n.4(A).
The probation officer explained that the district court
could apply the two-point enhancement based on section 3C1.1 and
the following uncontested facts from paragraph 13 of the PSR:
The week of January 10, 2022, Ortega
[allegedly one of the lower-level drug dealers
Soto-Sanchez supplied] went to Dostie's
residence, and despite her telling him to
leave, he inquired, "What am I supposed to
tell him?" and "He told me to tell you not to
say anything." Dostie understood Ortega to be
speaking about [Soto-Sanchez]. Additionally,
subsequent to the offense, the defendant's
cousin from New Jersey messaged Dostie and
told Dostie that the defendant told her to
contact Brown [another alleged drug dealer]
for money; Dostie did not contact Brown for
- 8 -
any money. Dostie stated that she has not
received any threats.
Soto-Sanchez objected to the enhancement in his
sentencing memorandum. The entirety of his objection stated:
In this case, Ms. Dostie did not report that
anybody threatened or intimidated her and
there is no proof of what Mr. Soto[-]Sanchez
intended by attempting to get her money. Ms.
Dostie was his girlfriend and he could have
just as easily been trying to look out for her
during his incarceration or to get money on
his books at the jail.
The district court sentenced Soto-Sanchez in February
2024. At the sentencing hearing, Soto-Sanchez elaborated briefly
on his objection to the sentencing enhancement, making only two
points. First, he "vehemently denie[d] that he sent anyone over
there to talk with [Dostie] about this case, and he also dispute[d]
that he had any knowledge of that." Second, he conceded that, if
he had, the enhancement "could apply, certainly," and then argued
"but I don't think it's the most egregious way to obstruct justice
and I think it can be interpreted differently as well, you know,
the money thing is him trying to take care of her while he's in
jail. So I'll rest on that."
The district court applied the enhancement over
Soto-Sanchez's objection. In doing so, it relied on our decision
in United States v. O'Brien,
870 F.3d 11
(1st Cir. 2017),
explaining that O'Brien "held that the enhancement applied when
the defendant told the victim's attorney that her ability to repay
- 9 -
funds to the victim might depend on what the victim told the
government."
Id. at 18
. The court ultimately adopted a guideline
sentencing range of 210 to 262 months and imposed a sentence of
210 months, followed by five years of supervised release.
Soto-Sanchez timely appealed.
II. DISCUSSION
As we previewed above, this appeal raises two primary
issues. First, Soto-Sanchez challenges his conviction by claiming
that the district court admitted testimony that violated his
Confrontation Clause rights. Second, Soto-Sanchez challenges his
sentence by contending that the district court erred in applying
the obstruction-of-justice enhancement. We address each argument
in turn and ultimately conclude that neither warrants reversal or
resentencing.
A. Confrontation Clause
Soto-Sanchez contends that admitting Detective
Cloutier's testimony on the substance of the confidential
informant's tip violated his Confrontation Clause rights. We agree
but conclude that the error was harmless.
1. Violation of Confrontation Clause
We review preserved Confrontation Clause challenges de
novo. See United States v. Cruz-Díaz,
550 F.3d 169, 176
(1st Cir.
2008). The Confrontation Clause of the Sixth Amendment provides
that "[i]n all criminal prosecutions, the accused shall enjoy the
- 10 -
right . . . to be confronted with the witnesses against him." U.S.
Const. amend. VI. The U.S. Supreme Court defined the scope of a
defendant's Confrontation Clause rights in its landmark decision
in Crawford v. Washington,
541 U.S. 36
(2004). After conducting
a survey of the Clause's historical background, the Court held
that "a declarant's 'testimonial' out-of-court statement is not
admissible under the Confrontation Clause unless (1) the declarant
testifies, or (2) the defendant had a prior opportunity for
cross-examination and the declarant is unavailable, or (3) the
evidence is admitted for purposes other than establishing the truth
of the matter asserted." United States v. Maher,
454 F.3d 13,
19-20
(1st Cir. 2006) (citing Crawford,
541 U.S. at 53-54
, 59 n.9).
The government does not dispute that the confidential
informant's statement to Detective Cloutier was testimonial. And
the confidential informant did not testify at trial, nor did
Soto-Sanchez have a prior opportunity to cross-examine the
informant. Thus, the only Confrontation Clause issue on appeal is
whether the informant's statement was "admitted for purposes other
than establishing the truth of the matter asserted."
Id.
The government argues that the informant's statement was
admissible under Crawford because it was offered not for its truth
but to explain the detective's next steps in the investigation:
conducting records checks on Dostie and arranging controlled buys.
Our court has sometimes held that out-of-court testimonial
- 11 -
statements do not violate the Confrontation Clause when they serve
only to provide necessary context for other admissible evidence.
For example, in United States v. Walter, we held that a recording
of an incriminating conversation between a non-testifying
informant and the defendant was properly admitted to provide
context for the defendant's admissions. See
434 F.3d 30, 33-34
(1st Cir. 2006). We explained that, without hearing the
informant's half of the conversation, the jury could not understand
the defendant's responses, so the informant's statements were
"reasonably required to place [the defendant's] admissions into
context" and were not offered for their truth.
Id. at 34
.
But we do not automatically reject a Confrontation
Clause challenge whenever the government claims that it introduced
out-of-court statements only to provide "context." "[W]hen an
out-of-court statement is purportedly offered into evidence as
non-hearsay -- for example, to provide context for police action
or inaction -- we are concerned about whether the stated purpose
for introducing the evidence masks an attempt to evade Crawford
and the normal restrictions on hearsay." Cruz-Díaz,
550 F.3d at
177
(citing Maher,
454 F.3d at 22-23
); see also Smith v. Arizona,
602 U.S. 779, 794
(2024) ("We therefore do not 'accept [a State's]
nonhearsay label at face value.'" (alteration in original)
(quoting Williams v. Illinois,
567 U.S. 50, 106
(2012) (Thomas,
J., concurring))). Thus, a Crawford assessment requires a court
- 12 -
to "conduct an independent analysis of whether an out-of-court
statement was admitted for its truth," and the government's use of
the "context" label is not dispositive. Smith,
602 U.S. at 794
.
If it were, the protections of the Confrontation Clause would prove
elusive. See Maher,
454 F.3d at 22
.
Indeed, we were unpersuaded when the government made a
similar context argument in Maher. There, after a police officer
recounted an informant's tip that the defendant sold him cocaine,
the district court "immediately" instructed the jury not to
consider that statement for its truth.
Id.
The court also
included in its limiting instruction examples of permissible and
impermissible inferences the jury could draw from that testimony.
See
id. at 21
. Despite the detailed limiting instruction provided
right after the challenged testimony, we held that "[i]t appears
the testimony was primarily given exactly for the truth of the
assertion that Maher was a drug dealer," and its admission
therefore violated the Confrontation Clause.
Id. at 23
.
In so holding, we rejected the government's argument
that the informant's out-of-court statement merely provided
context for the police investigation. See
id. at 22
. As we
explained, "the prosecution easily could have structured its
narrative to avoid" recounting the out-of-court statement,
id. at
23
, by, for example, having the officer testify that he "acted
upon information received, or words to that effect,"
id.
(quoting
- 13 -
2 Broun et al., McCormick on Evidence § 249, at 103 (5th ed.
1999)). Given this "adequate alternative approach," we concluded
that the officer's testimony about the substance of the informant's
tip "should not have been admitted." Id. We also "warn[ed]
prosecutors of the risks they face in backdoor attempts to get
statements by non-testifying confidential informants before a
jury." Id.
Maher squarely applies here. Detective Cloutier's
testimony recounting exactly what the informant said to him was
much more extensive than the police officer's testimony in Maher,
and thus the government has a much steeper hill to climb in
describing the testimony in this case as purely "contextual." If
context had been the only goal, there would have been no reason
for Detective Cloutier to describe the informant's statement about
the various types of fentanyl Soto-Sanchez purportedly sold,
Soto-Sanchez's personal life, and the contents of his apartment.
Like the officer in Maher, Detective Cloutier could have explained
his next steps in the investigation by stating simply that he
"acted upon information received, or words to that effect." Id.
(quoting Broun et
al., supra,
§ 249). Thus, "[i]t appears [that
Detective Cloutier's] testimony was primarily given exactly for
the truth of the assertion that [Soto-Sanchez] was a drug dealer
and should not have been admitted given the adequate alternative
approach." Id.
- 14 -
Just as in Maher, the district court's limiting
instruction here did not prevent any Confrontation Clause
violation. See id. (finding violation despite more detailed
limiting instruction given "immediately" afterwards). We leave
for another day the question of whether an instruction could make
a difference in a particularly close case where our independent
assessment indicates that the "context" rationale is plausible,
and the district court provides a robust instruction immediately
after the testimony. But those are not the facts of this case.
Instead, the government's "context" argument is not supported by
the record, and the district court's instruction came more than
two hours after the testimony about the informant's tip. Thus, as
in Maher, we consider the fact of the limiting instruction only in
determining whether any Crawford error was harmless.2 See id. at
2 We note that Soto-Sanchez has not raised a Confrontation
Clause claim under Bruton v. United States,
391 U.S. 123
(1968),
which evaluated the admission of a codefendant's confession in a
joint trial. When a codefendant's confession does not directly
incriminate the defendant and thus is not testimony "against the
[defendant]" for Confrontation Clause purposes, courts reviewing
Bruton claims have considered limiting instructions in deciding
whether a Bruton error occurred. See, e.g., Samia v. United
States,
599 U.S. 635, 643, 655
(2023) (finding no Bruton error
where the codefendant's confession "did not directly inculpate the
defendant and was subject to a proper limiting instruction");
Tennessee v. Street,
471 U.S. 409, 414-17
(1985) (concluding that
the state introduced codefendant's confession for a "legitimate,
nonhearsay purpose" and considering limiting instruction to
determine whether jurors may have "misused" the confession).
- 15 -
21-23; see infra Section II.A.2.3
The concurring opinion reads Maher differently. It
concludes that we decided Maher only on "the prejudice prong of
the plain error standard" and "thus had no need to determine"
whether any Crawford error had occurred.
But most of the Confrontation Clause analysis in Maher
would have been unnecessary if the court had intended to decide
the case solely on the prejudice prong of the plain error test.
To be sure, we found no prejudicial error in Maher. See
454 F.3d
at 21-23
. Had the court intended to rule only on prejudice
grounds, however, it presumably would have followed our usual
practice of assuming that an error had occurred and then moving
directly to a discussion of the prejudice prong. Instead, the
Maher court devoted four pages of its opinion to discussing the
merits of the Crawford issue (and only two paragraphs to
prejudice), ultimately concluding that "[i]t appears the testimony
[about the informant's tip] was primarily given exactly for the
3 In Maher, we reviewed the defendant's Sixth Amendment claim
for plain error because he raised his Confrontation Clause
challenge for the first time on appeal. See
454 F.3d at 21-23
.
We ultimately found that the defendant failed to meet the plain
error standard because the error was not sufficiently prejudicial,
given that the testimony about the informant's tip "was immediately
followed by a sua sponte instruction" not to consider it for its
truth and the government had introduced overwhelming physical
evidence against the defendant.
Id. at 23
. Here, Soto-Sanchez
preserved his Confrontation Clause challenge, so we review it for
harmless error. See infra Section II.A.2.
- 16 -
truth of the assertion . . . and should not have been admitted."
Id. at 23
. There would have been no need for this extended analysis
or the court's ultimate conclusion that the testimony about the
tip "should not have been admitted" if the court's holding had
been limited to prejudice, with only a warning to the government.
Id.
(emphasis added). Thus, we read Maher to have found a Crawford
error.4
The government makes one last argument on the
Confrontation Clause issue: It insists, relying on Cruz-Díaz, that
it offered the informant's statement here not for its truth but
only to rebut Soto-Sanchez's argument that the government should
have investigated other individuals. We note that the government
has forfeited this "rebuttal" argument by failing to raise it at
any point before the district court. Indeed, at trial, the
government claimed only that it was offering the testimony about
the informant's tip to "show the effect on the reader or listener"
and to "explain the [next] steps" in the investigation.
4 The concurring opinion also suggests that Maher did not
grapple with the officer's particular testimony in that case and
whether it could be justified as mere context-setting. But we do
not see how that can be so when the court expressly considered the
facts of the case to conclude that the testimony "should not have
been admitted given the adequate alternative approach" because
"the prosecution easily could have structured its narrative to
avoid such testimony." Maher,
454 F.3d at 23
. This strikes us as
a fact-bound analysis and not "only [a] respon[se]" to the
government's "'impossibly overbroad' justification" that any
statement from an informant to police which sets context for the
investigation is not offered for its truth.
- 17 -
In any event, this case is not like Cruz-Díaz. There,
the defendant "opened the door" to the testimonial hearsay by
"pointedly cross-examining" an officer about why the police did
not pursue other leads. Cruz-Díaz,
550 F.3d at 178
. Specifically,
Cruz-Díaz questioned the officer about the failure to lift any
forensic evidence from a car involved in the offense, including
DNA and fingerprint evidence, claiming that the government missed
"eleven opportunities" to obtain physical evidence tying him to
the crime.
Id.
All in all, Cruz-Díaz pursued a defense that
focused on "paint[ing] a picture of police and FBI ineptitude."
Id.
Here, by contrast, Soto-Sanchez did not claim at any
point before Detective Cloutier testified that the police failed
to investigate other individuals in a way that would have required
the detective to describe the informant's statement in response.5
Instead, Detective Cloutier was only the second witness at trial,
5The government contends that Detective Cloutier's testimony
responded to defense counsel's claim in his opening statement that
several other people had access to the apartment where the drugs
were found. To be sure, defense counsel argued in his opening
statement that the drugs did not belong to Soto-Sanchez and that
many people, including "J.D.," "would frequent Ms. Dostie's
apartment before Mr. Soto[-]Sanchez ever started staying there."
Defense counsel also stated that Soto-Sanchez told the police that
the drugs belonged to J.D. But these general statements are far
from the defendant's "pointed[] cross-examin[ation]" in Cruz-Díaz
about why the police "missed eleven opportunities to tie [a
defendant] to the crime."
550 F.3d at 178
. Thus, the government
could have rebutted Soto-Sanchez's contention without eliciting
the testimonial hearsay.
- 18 -
and the government solicited the testimonial hearsay on direct
examination by asking him what the informant told him. Thus, there
would have been no "unjustified cost" to Detective Cloutier
testifying more generally that he had started his investigation
into Dostie and Soto-Sanchez "because of information received."
Id.
As a result, we conclude that Detective Cloutier's testimony
on the substance of the confidential informant's tip violated the
Confrontation Clause.
The concurring opinion also suggests that we should not
reach the merits of Soto-Sanchez's Crawford claim, given our
conclusion below that any error was harmless. Instead, our
colleague would have us decide the appeal on harmlessness grounds
only and merely repeat Maher's warning from two decades ago. In
urging this approach, the concurring opinion suggests that
Soto-Sanchez's Crawford claim based on Maher has not been
"subjected to true adversarial testing" because "we have no
arguments from the parties ventilating the many
complexities . . . that necessarily arise in evaluating a
case-specific context argument."
But the Maher arguments were the focus of the parties'
Confrontation Clause briefing. Soto-Sanchez zeroed in on Maher as
the most relevant case in his favor and devoted three pages of his
brief to Maher, describing the court's rejection of the
government's context argument in that case and comparing the
- 19 -
challenged testimony in Maher to the challenged testimony here.
The government responded in kind, and the oral argument also
centered on Maher, including the legal impact, if any, of the
immediate, curative jury instruction the district court had
provided in that case. Further, the government never argued that
the Maher court did not find a Crawford error and, instead, tried
to distinguish Maher on its facts. It also, commendably,
acknowledged at oral argument that "the better practice would be
not to have as much detail solicited for the jury" about an
informant's tip when the government seeks to rely on that tip only
to provide context for its investigation.
Thus, the Crawford and Maher arguments were sufficiently
presented in this case. And by resolving Soto-Sanchez's claim on
the merits, we provide critical, additional guidance on a recurring
issue: the contours of a defendant's Sixth Amendment right to
confrontation when the government seeks to introduce testimony
about an informant's tip under the "context" framework. At the
same time, we reiterate our warning from Maher of the "risks
[prosecutors] face in backdoor attempts to get statements by
non-testifying confidential informants before a jury."
454 F.3d
at 23
.
2. Harmless Error
Nevertheless, as we previewed above, the Confrontation
Clause violation here amounts to harmless error. Even if evidence
- 20 -
is admitted in violation of a defendant's constitutional rights,
we do not reverse a conviction if we determine that "the government
has met 'its burden of showing that any such error was harmless
beyond a reasonable doubt.'" United States v. Cabrera-Rivera,
583
F.3d 26, 36
(1st Cir. 2009) (quoting United States v. Earle,
488
F.3d 537, 545
(1st Cir. 2007)). To evaluate harmlessness, we
consider several factors, including: "the overall strength of the
case," "the strength of corroborating or contradicting evidence,"
"whether the statements were merely cumulative of other (properly
admitted) evidence," and "whether the challenged statements were
central to the prosecution's case."
Id.
All these factors favor a finding of harmless error here.
Setting aside the substance of the informant's tip, the government
presented overwhelming evidence that Soto-Sanchez was guilty of
possession with an intent to distribute. The physical evidence
alone was staggering. Cf. Maher,
454 F.3d at 23
(finding that the
Confrontation Clause violation was harmless in part due to
significant physical evidence of possession with an intent to
distribute, including drugs in amounts too large to be explained
by personal use, paraphernalia, and related equipment). Law
enforcement officers seized over ten pounds of cocaine and fentanyl
from the 185 College Avenue apartment, an amount that the district
court later characterized during sentencing as "fairly
extraordinary even by [the standards of] federal court drug cases."
- 21 -
In the apartment, they also found multiple firearms and magazines;
cash; a notebook that appeared to be a drug ledger written in
Spanish; documents indicating that Soto-Sanchez resided there; and
assorted drug paraphernalia and equipment, including blenders, a
scale, and a money counter. The government also presented evidence
collected during a three-week police investigation of
Soto-Sanchez, including two controlled buys of fentanyl, as well
as Soto-Sanchez's own admissions to the police that his DNA and
fingerprints would likely be found on the drugs. Finally, the
jury heard Dostie's trial testimony that she and Soto-Sanchez had
lived together at 185 College Avenue, Unit 1, and that he had told
her he sold drugs himself and supplied drugs to three lower-level
dealers.
This properly admitted evidence rendered Detective
Cloutier's testimony on the substance of the informant's tip merely
cumulative. Cf. Cabrera-Rivera,
583 F.3d at 36-37
(vacating
conviction because of Confrontation Clause violation after
concluding that the challenged testimony was "not merely
cumulative of other [properly admitted] evidence"). Dostie's
testimony, the police investigation after the tip, and the physical
evidence independently established the facts that Soto-Sanchez was
involved in dealing substantial quantities of drugs from the
College Avenue address. The physical evidence also confirmed the
presence of firearms, fentanyl, and crack cocaine in the apartment.
- 22 -
Thus, the confidential informant's statement here did not
"suppl[y] information [un]available from other witnesses."
Id. at
37
.
The remaining factors also indicate that the
Confrontation Clause violation was harmless. The confidential
informant's statement was not "central to the prosecution's case."
Id. at 36
. The government did not refer to the substance of the
informant's tip later in its case-in-chief or during its closing
argument. See
id.
(highlighting that the challenged testimony
"featured centrally in the government's closing arguments" in
ruling that the Confrontation Clause error was not harmless).
Finally, at the end of Detective Cloutier's testimony, the district
court instructed the jury not to consider the informant's statement
for its truth, another factor in favor of finding the error
harmless. Cf. United States v. Rathbun,
98 F.4th 40, 61
(1st Cir.
2024) (finding evidentiary error to be harmless in part because
district court gave limiting instruction that "cabined how the
jury could consider it").
Considering each of the relevant factors, the government
has established that the Confrontation Clause error here was
harmless beyond a reasonable doubt. Thus, we do not disturb
Soto-Sanchez's conviction.
- 23 -
B. Sentencing Enhancement
Soto-Sanchez also challenges his sentence based on the
district court's application of a two-point enhancement for
obstruction of justice under section 3C1.1 of the Sentencing
Guidelines. To recap, section 3C1.1 applies if a defendant
"willfully obstructed or impeded, or attempted to obstruct or
impede, the administration of justice with respect to the
investigation, prosecution, or sentencing of the instant offense
of conviction." U.S.S.G. § 3C1.1. Under the commentary, covered
conduct includes "threatening, intimidating, or otherwise
unlawfully influencing a co-defendant, witness, or juror, directly
or indirectly, or attempting to do so." Id. § 3C1.1 cmt. n.4(A).
According to Soto-Sanchez, the district court made two
errors in applying the section 3C1.1 enhancement. First, he
contends that, as a legal matter, the district court should not
have applied the enhancement under an "unlawful[] influenc[e]"
theory without determining that any "influence" independently
violated federal law. Second, he claims that, as a factual matter,
(i) the district court should not have applied the enhancement
without finding by a preponderance of the evidence that
Soto-Sanchez was offering Dostie money in exchange for her silence
and (ii) the evidence was insufficient to support such a finding.
We conclude that Soto-Sanchez has waived his arguments
related to the sentencing enhancement. Critically, before the
- 24 -
district court, Soto-Sanchez conceded that if the facts were as
Dostie testified, the "provision could apply, certainly." And he
pursued only two factual theories in challenging the enhancement.
First, he claimed that Ortega and his cousin contacted Dostie on
their own initiative, without his knowledge. Second, and
alternatively, he argued that there was an innocent explanation
for contacting Dostie: to provide for her financially while he was
in jail. Thus, Soto-Sanchez did not raise to the district court
his legal argument that there can be no unlawful influence under
the enhancement without an independent violation of federal law or
his factual argument that the enhancement could apply only if he
had offered Dostie money for her silence. As a result, we must
review both of these claims for plain error on appeal. See United
States v. Sansone,
90 F.4th 1, 6
(1st Cir. 2024) ("Unpreserved
claims of error, if not deemed waived, are reviewed only for plain
error."). But Soto-Sanchez failed to address the plain error
standard in his opening brief, and therefore he has waived both
arguments entirely. See United States v. Cordero-Velázquez,
124
F.4th 44, 52
(1st Cir. 2024) (concluding that defendant's
unpreserved sentencing argument was waived because he did not
address the plain error standard in his opening brief (citing
United States v. Melendez-Hiraldo,
82 F.4th 48, 54
(1st Cir.
2023))).
Even after the government argued in its brief that the
- 25 -
plain error standard applied, Soto-Sanchez failed to address the
standard in his reply. Instead, he claimed that he merely "added
more heft to his argument on appeal." We disagree. The record is
clear that Soto-Sanchez made no statutory construction argument to
the district court about the correct legal interpretation of the
guideline; instead, his arguments were factual. Further, the
factual arguments he made to the district court were markedly
different from the factual argument that he now presses on appeal:
that the court could apply the enhancement only if it found that
Soto-Sanchez offered Dostie money for her silence and that the
evidence was insufficient to support such a finding. Thus,
Soto-Sanchez did not "favor[] the lower court with the argument
that he now stitches together." United States v.
Turbides-Leonardo,
468 F.3d 34, 37
(1st Cir. 2006).
In sum, we reject Soto-Sanchez's challenge to the
district court's application of the sentencing enhancement in
section 3C1.1.
III. CONCLUSION
For all these reasons, we affirm Soto-Sanchez's
conviction and sentence.
- Concurring Opinion Follows -
- 26 -
BARRON, Chief Judge, concurring in part. Finding the
claimed Confrontation Clause violation harmless beyond a
reasonable doubt, the majority rightly rejects Victor
Soto-Sanchez's challenge under Crawford v. Washington,
541 U.S. 36
(2004), to his federal conviction. The majority nonetheless goes
on to hold that a Crawford violation did occur with reference to
United States v. Maher,
454 F.3d 13
(1st Cir. 2006), which the
majority concludes is "squarely" on point. I write separately to
explain why I cannot agree with that characterization of Maher and
so would not venture beyond our harmless error ruling in disposing
of Soto-Sanchez's constitutional claim.
In Maher, the defendant failed to satisfy the prejudice
prong of the plain error standard in making his Crawford challenge.
We thus had no need to determine when testimony that the government
claims to have offered only for context -- and so in compliance
with Crawford -- was in fact offered for its truth -- and so in
violation of Crawford.
Id. at 23
.
The majority nonetheless treats Maher as if it, quite
unnecessarily, found a Crawford violation. It reasons that
otherwise "most of the Confrontation Clause analysis in Maher would
have been unnecessary." The analysis to which the majority refers,
however, is more naturally understood to have been offered in
service of the panel's stark warning about the constitutional risks
that prosecutors face under Crawford when they rely on patently
- 27 -
weak rationales for deeming testimony to have been offered only
for context. See
id.
This more limited understanding of what the panel did in
Maher comports with the fact that, so far as I am aware, it has
not been our habit to give such precatory warnings when we hold
that a claimed constitutional violation has in fact occurred. The
constitutional holding itself would seem to provide warning
enough. Maher's care in stating that the testimony at issue there
merely "appear[ed]" to have been offered for its truth also
comports with this same understanding of its holding.
Id.
So,
too, does the fact that, unlike in past cases of ours, Maher did
not, in rejecting the Confrontation Clause challenge under the
plain error standard's prejudice prong, nonetheless make
unmistakably clear its intention to hold under that standard's
first prong that a Crawford violation had occurred. See, e.g.,
United States v. Rodríguez-Adorno,
695 F.3d 32, 41
(1st Cir. 2012)
(holding that a prosecutor's statement was "unmistakably the
personal opinion of the prosecutor as to the honesty of a witness
and constitute[d] improper vouching" but that "[b]ecause appellant
has failed to show the requisite prejudice, this error does not
justify a new trial under the plain error rubric").
Maher aside, it still may be that the government's
response to Soto-Sanchez's Crawford challenge is not persuasive.
Perhaps, despite the specific limiting instruction that the jury
- 28 -
received, the investigating officer's references to the substance
of the informant's tip must be deemed to have been offered for
their truth. Perhaps, in other words, those references may not be
deemed to have been offered only to provide context for the
officer's choice to focus his suspicion on Soto-Sanchez rather
than the others whom his counsel repeatedly suggested at trial may
have been the true offenders.
But, as the majority itself agrees, we need not decide
that question to reject Soto-Sanchez's Crawford claim. I thus see
no reason to depart from the general principle that we should avoid
unnecessarily deciding constitutional issues. See, e.g.,
Bellville v. Town of Northboro,
375 F.3d 25, 30
(1st Cir. 2004).
I especially see no reason to do so when the constitutional
challenge before us rests on a precedent that is as readily
distinguishable as Maher is.
The panel there, in addressing the government's argument
that no Crawford violation occurred, described the government's
"articulated justification" as "impossibly overbroad," because the
panel understood that justification to be "that any statement by
an informant to police which sets context for the police
investigation is not offered for the truth of the statement."
Maher,
454 F.3d at 22
(emphasis added). And while the panel in
Maher did say that the "prosecution easily could have structured
its narrative to avoid" the testimony which related the substance
- 29 -
of the informant's tip, including by having the officer in that
case "merely [say] he 'acted upon information received, or words
to that effect,'"
id. at 23
, the panel did so only in responding
to the "impossibly overbroad" justification just described. Thus,
I do not understand Maher to have addressed how to assess the kind
of fact-bound context argument that the government makes in this
case. Accordingly, Maher did not address, let alone purport to
pass on, how we should go about determining whether, in the face
of a specific limiting instruction and the defense counsel's
specific opening statements, Detective Cloutier's testimony in
referring to what the informant told him was offered only to
provide context.
In my view, therefore, we have no reason to do more in
resolving this Crawford challenge than Maher did in resolving that
one. I thus think that here, as there, we should reject the
challenge solely on the ground that the defendant has failed to
show the requisite degree of prejudice but then warn prosecutors
of the constitutional risk of their reliance on "backdoor attempts
to get statements by non-testifying confidential informants before
a jury."
Id.
That more cautious approach would provide a useful
reminder to prosecutors. But it would not break new ground that
would bind future panels in our Circuit, which, unlike our own
panel, may have no choice but to decide whether testimony that
- 30 -
relates to the substance of an informant's tip has been offered
for its truth, rather than for its context, in the face of a
limiting instruction.
There is sometimes reason, of course, to offer guidance
even when it is not strictly necessary to do so. But we are best
positioned to give that guidance when it concerns a matter that
has been subjected to true adversarial testing. And, even then,
we should be most cautious about giving it when the question is a
constitutional one. Here, the parties' briefing on the
Confrontation Clause issue focused on Maher and its application to
the facts of Soto-Sanchez's case, as did oral argument. But we
have no arguments from the parties ventilating the many
complexities presented by this complicated and much-contested area
of law that necessarily arise in evaluating a case-specific context
argument of the kind that the government has presented to us, and
which the panel in Maher did not understand itself to be
addressing. I therefore respectfully decline to join Part II.A.1,
supra, but otherwise concur fully in the majority's decision.
- 31 -Case Information
- Court
- 1st Cir.
- Decision Date
- May 27, 2025
- Status
- Precedential