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Case: 22-1421 Document: 00117881326 Page: 1 Date Filed: 05/27/2022 Entry ID: 6498507
UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
_______________
No. 22-1421
________________
UNITED STATES OF AMERICA
v.
RAFAEL PINA-NIEVES,
Defendant-Appellant
_________________
MOTION OF DEFENDANT-APPELLANT RAFAEL PINA-NIEVES FOR

RELEASE PENDING APPEAL
Defendant-Appellant Rafael Pina-Nieves hereby moves, pursuant to 18 U.S.C.
§ 3143(b) and Fed. R. App. P. 9(b), that this Honorable Court order that he be
released on bond pending his appeal to this Court. Mr. Pina-Nieves presents no flight
or safety risk, and his appeal will raise substantial questions of law that, if decided in
his favor, will likely result in a new trial.
Trial of this case was rendered fundamentally unfair by a number of grave
errors, some of them of constitutional magnitude. First, the district court erroneously
admitted, as consciousness of guilt evidence, a sentence extracted from a pretrial
motion to dismiss filed by trial counsel, attributing to the Pina-Nieves the words
written by counsel: “Just the fact that the government learned that the defendant was
resigned to the fact that he would have to spend time in prison is a tremendous
advantage to have in plea negotiations.” This sentence was not an admission by Pina-
Nieves but was instead argument by counsel based on what an informant had
reportedly told the government that a third party had told him about a conversation
among Pina and family members at which the third party had been present. The
statement was, accordingly, double hearsay and not admissible as an admission of a
party-opponent under Rules 801(d)(2)(C), (D). Its admission, and government’s
reliance on it as substantive evidence of Pina-Nieves’ guilt, deprived Pina-Nieves of
his right to a fair trial and to effective assistance of counsel, requiring vacation of his
convictions.
As this Court has noted, courts have “urg[ed] caution in admitting such
statements in criminal context to avoid infringing defendant's right against
self-incrimination, the right to counsel of the defendant’s choice [i.e., insofar as
admission of such a statement might require counsel to be disqualified], and the right
to effective assistance of counsel.” United States v. Lombard, 72 F.3d 170, 189 n.25
(1st Cir. 1995), quoting United States v. Valencia, 826 F.2d 169, 172 (2d Cir. 1987).
All of these dangers were realized in this case. The admission of the statement,
amplified for the jury through the court’s judicial notice and consciousness of guilt
instructions and the government’s dramatic exploitation of it during its closing and
rebuttal arguments, in which it went so far as to mock defense counsel for providing
2
it with such powerful evidence against their client and arguing that counsel’s
statement was akin to a confession of his client’s guilt, see pages 11-16, infra,
irremediably tainted the fairness of Pina-Nieves’ trial and cannot, therefore, be
regarded as harmless. Pina-Nieves, who was denied a longer period to self-report that
would have allowed him to remain on release while the Court reviewed this motion
but was instead required to report late the same day as sentencing, should not be
required to remain behind bars while the Court grapples with the questions of first-
impression of critical importance for the criminal defense function that will be
presented in this appeal.
Second, Pina-Nieves was denied his Fifth and Sixth Amendment rights to
present a complete defense by the court’s exclusion, on the ground of relevance, of
the testimony of a defense witness that would have established that during the
relevant time frame Pina-Nieves was living most of the time in Miami. That testimony
was relevant because it had direct bearing on his power and intention to exercise
control over the weapons and ammunition at issue, which were located in Puerto
Rico. Its exclusion was prejudicial error.
I. OVERVIEW.
On August 13, 2020, Pina-Nieves, a successful businessman and music
promoter, was charged in a two-count indictment with being a felon in possession of
3
a firearm and ammunition, 18 U.S.C. §922(g)(1),1 and possession of a machine gun,
18 U.S.C. §922(o). The weapons and ammunition were found during an April 1,
2020, search of a house that Pina-Nieves owned but did not live in. That search was
the result of an intercepted conversation during which Pina-Nieves mentioned the
presence of weapons in the house. The government presented no evidence of when
Pina-Nieves, who was then living primarily in Miami, had last been at that property.
Pina-Nieves’ defense focused on demonstrating his lack of knowledge and intention
to exercise dominion and control over the weapons and ammunition by showing that
(1) other persons had access to the property, and (2) during the relevant time frame,
he lived primarily in Miami.
On December 22, 2021, Pina-Nieves was convicted on both counts. The district
court, over the government’s objection, permitted Pina-Nieves to remain on release
pending sentencing. Pina-Nieves filed a motion for release pending appeal in the
district court, Doc. 271, which was denied by written order dated May 24, 2022. See
Exhibit 1, appended hereto. On May 24, 2022, Pina-Nieves was sentenced to a term
of 41 months. He is currently incarcerated.
II. THE STANDARD FOR GRATING RELEASE PENDING APPEAL.
Under 18 U.S.C. §3143(b)(1)(B), a court considering a defendant’s request for
1
The prior felony conviction was a 2005 fraud conviction.
4
release pending appeal must make two determinations: (1) whether “the appeal
raise[s] a substantial question of law or fact and (2) whether, “if the substantial
question is determined favorably to defendant on appeal, that decision is likely to
result in reversal or an order for a new trial on all counts on which imprisonment has
been imposed.” United States v. Bayko, 774 F.2d 516, 522 (1st Cir. 1985). A
“substantial question” is “a ‘close’ question or one that very well could be decided
the other way.” Id. at 523.
Under 18 U.S.C. §3143(b)(1)(B), a court considering a defendant’s request for
release pending appeal must make two determinations: (1) whether “the appeal
raise[s] a substantial question of law or fact and (2) whether, “if the substantial
question is determined favorably to defendant on appeal, that decision is likely to
result in reversal or an order for a new trial on all counts on which imprisonment has
been imposed.” United States v. Bayko, 774 F.2d 516, 522 (1st Cir. 1985). A
“substantial question” is “a ‘close’ question or one that very well could be decided
the other way.” Id. at 523. See United States v. Bravo-Fernandez, 320 F. Supp.3d
321, 324 (D.P.R. 2018)(same). “[L]ikely to result in reversal or an order for a new
trial” requires “that the claimed error not be harmless or unprejudicial.” Bayko, 774
F.2d at 523. The “likely to result” standard is to be applied “flexibly.” United States
v. Colon-Munoz, 292 F.3d 18, 20 (1st Cir. 2002). See, e.g., United States v. Zimny,
5
857 F.3d 97, 101 (1st Cir. 2017)(“[W]e must ask whether a reversal or new trial is
likely if the substantial question of fact Zimny has raised . . . is determined favorably
to [Zimny].”); in deciding the second part of the standard, the court “must assume that
the substantial question presented will go the other way on appeal and then assess the
impact of such assumed error on the conviction”). The issues to be raised in this
appeal amply satisfy this standard.
III. PINA-NIEVES DOES NOT POSE ANY FLIGHT OR SAFETY RISK.
Pina-Nieves has known since the April 1, 2020, search that he was under
criminal investigation. He did not flee, but instead voluntarily surrendered after the
indictment was returned. Since that time, he has scrupulously abided by all the terms
and conditions of his release and faithfully appeared for all court proceedings. Upon
his conviction in this case, the government asked that he be detained pending
sentencing. The court, however, found that Pina-Nieves did not present any danger
to other persons in the community at that time, and the same remains true today. The
court ordered that Pina-Nieves be subject, in addition to the other existing terms and
conditions of his release, to home confinement and electronic monitoring pending
sentencing. Those conditions suffice to ensure that Pina-Nieves will not present a risk
of flight if he is permitted to remain on release pending appeal. Indeed, the district
court did not mention either flight or dangerousness as grounds for its denial of
6
release pending appeal.
IV. THIS APPEAL WILL RAISE SUBSTANTIAL ISSUES WHICH, IF

DECIDED IN PINA-NIEVES’ FAVOR, WILL LIKELY RESULT IN AN
ORDER FOR A NEW TRIAL ON ALL COUNTS OF CONVICTION.
A. The Court Erroneously Admitted a Sentence From a Pleading

Submitted By Counsel.
On the eve of trial, the court ruled that a sentence from a pretrial pleading
submitted by Pina-Nieves’ primary trial counsel was admissible against Pina-Nieves
as a statement of a party-opponent, i.e., defendant Pina-Nieves, under Fed. R. Evid.
801(d)(2)(C), (D). That ruling was erroneous, as the statement was not one of fact
made by Pina-Nieves’ counsel. Instead, it was a reference by counsel, in the context
of arguing prejudice to the defendant, to information reportedly received by the
government from an informant indicating that Pina-Nieves had told others that he was
resigned to going to prison as the result of the charged offenses. As such, it was
inadmissible hearsay, the erroneous admission of which fatally tainted the fairness of
Pina-Nieves’ trial in several different ways: (1) through the emphasis that the
government placed on counsel’s statement in opening its case with the statement and
stressing it in its closing and rebuttal arguments; (2) through the court’s judicial
notice and consciousness of guilt instructions, the sole basis for the latter being
counsel’s statement; (3) through the conversion of trial counsel into an unsworn
7
witness against his own client; and (4) through its denial to Pina-Nieves of effective
assistance of counsel and the right to confront the witnesses against him guaranteed
by the Sixth Amendment to the United States Constitution.
1. Introductory Background.
Shortly before trial, the defense, based on just-received discovery, moved to
dismiss the indictment on the ground that the government had, in violation of Pina-
Nieves’ Sixth Amendment right to counsel, placed an informant in the defense camp
who had then relayed Pina-Nieves’ private communications to the government. (Doc.
168). After addressing the law applicable to governmental invasions of the defense
camp, that motion related the information that the discovery indicated the informant
had provided to the government:
[O]n October 2, 2020, the government informant . . . informed case

agent Justin Turner that “Pina had a meeting with his attorneys, after having
received evidence from the U.S. Attorney’s Office associated with his pending
charges and trial. As a result, Pina gathered his family and associates on his
new yacht to discuss the case. Pina was advised by his attorneys he will most
likely have to spend time in prison, as a result of the charges. Pina’s attorneys
will reach out to the U.S. Attorney’s Office in the near future to broker a plea
agreement. During the meeting on the yacht, Pina prepared his family and
associates for the likelihood of his serving time in prison and handed down his
responsibilities to his associates on how to run the business in his absence.”
Id. at 4. Then, in the very next sentence, in arguing that the government’s acquisition
of the informant’s information had prejudiced Pina-Nieves, counsel made the
8
following statement: “Just the fact that the government learned that the defendant was
advantage to have in plea negotiations.” Id. This statement was followed by
additional argument regarding the prejudice to Pina-Nieves from the government’s
receipt of this informant information.
It is thus clear from the context in which this statement was made that it was
part and parcel of counsel’s dismissal argument rather than being a definitive factual
admission by Pina-Nieves, as it directly follows portions of the motion relating to the
discovery of the information provided by the informant. As such, it can only be read
as counsel’s argument that the government’s receipt of the informant information was
prejudicial to Pina-Nieves’ interests. Had counsel simply added the word
“allegedly”—for it is clear from the context that this was no more than the allegations
of an informant—this issue would never have arisen. Instead, the government, seizing
upon this arguably imperfect and inartfully drafted sentence, sought to transform it
into a de facto admission by defense counsel of his client’s guilt, to the defendant’s
irremediable prejudice.
In its response to defendant’s motion, the government noticed its intent to use
the quoted statement as evidence of Pina-Nieves’ consciousness of guilt under Rules
801(d)(2)(C), (D). Doc. 172 at 13-15. While referencing the language of the
9
applicable rules, the government neither discussed what actually makes a statement
of counsel admissible under those rules, failing to cite a single case that would
support the admission of the statement (a failure that continued in the government’s
response to Pina-Nieves’ bail pending appeal motion). Nor did the government move
to disqualify Mr. Rebollo, the author of the statement, despite the inarguable reality
that the introduction of the statement would turn him into an unsworn witness for the
prosecution and profoundly burden his credibility in making any arguments
supportive of his client’s innocence, thus depriving Pina-Nieves of his right to an
effective advocate in his defense.
Replying to the government’s notice, the defense contended:
The government misses a critical distinction: the two statements at issue are
statements in which counsel is repeating or paraphrasing statements made by
a third party—the informant—in order to frame the issue for the Court. They
are not statements by defendant’s counsel which could in any way be read to
be conveying a statement or position of the defendant. This distinction is
critical and determinative.
Doc. 175 at 4 (emphasis in original). In its sur-reply, the government clarified that the
informant had not himself been present when Pina-Nieves said whatever he did, if
anything, but was instead repeating information provided to him by someone else,
Doc. 178 at 1, making the informant’s statement at least double hearsay.
The day before the trial began, the court ruled that the statement was
10
admissible because “[a]s defense counsel, Rebollo is authorized to represent Pina
before the Court. Rebollo’s statements are, thus, attributable to Pina.” Doc. 187 at 9.
The court acknowledged Pina-Nieves’ argument that counsel was only repeating or
paraphrasing statements made by a third party but regarded that contention as a matter
to be argued to the jury for its determination as to its credibility. Id. at 10-11.
On the first day of trial, the defense again objected to the admission of the
statement. Tr. 12/13/21 (Excerpt #2) at 9-12, 25-28. The court once again expressed
its erroneously expansive view of the admissibility of statements made by trial
counsel for a criminal defendant, stating that “when counsel speaks, the defendant is
speaking.” Id. at 9. See id. at 11, 12. Counsel further objected based on the prejudice
to Pina-Nieves that would result from the admission of the statement, id. at 26, and
argued that its admission would deny Pina-Nieves his right to effective assistance of
counsel. Id. at 27.2 In adhering to its ruling, the court ignored the implications of the
admission of the statement for the ability of Mr. Rebollo to provide Pina-Nieves with
his constitutionally guaranteed right to effective assistance of counsel.
2
The government was plainly aware of the ineffective assistance issue, as it
told the court in its sur-reply that “the United States is still currently collecting case
law related to situations where an attorney incriminates his client and is deemed
ineffective, in violation of a defendant’s right to effective legal assistance.” Doc. 178
at 3 n.2. In the event, the government chose to ignore the issue in favor of reaping the
prejudice to Pina-Nieves that would inevitably result from Mr. Rebollo’s
representation of him at trial.
11
Thereafter, at trial, the government did everything it could to capitalize on
counsel’s statement as evidence of his client’s guilt. It introduced the statement, via
judicial notice, at the beginning of its case, before the first witness was even called.
Thus, the very first evidence the jury heard was:
THE COURT: . . .Before we begin with the first witness, the government
has provided me with something to read to you as judicial notice. It reads as
follows:
Judicial notice is taken that on December 11, 2021, counsel for
Defendant Rafael Pina-Nieves made the following statement in a motion filed
in the Electronic Docket and Case Management System in this court, at Entry
Number 168, as follows: Quote:
“Just the fact that the government learned that the defendant was
advantage to have in plea negotiations.”
This judicially-noticed fact can be so accurately and readily determined
that it cannot be reasonably disputed. You may, therefore, reasonably treat this
fact as proven, even though no evidence has been presented on this point.
Id. at 28.
Thus, at the very outset, the jury was told, over objection, that counsel, in a
statement made just two days earlier, said, in effect, that Pina-Nieves had so little
confidence his defense that he expected to go to prison and had been seeking to plead
guilty. The prejudice from the introduction of counsel’s statement permeated the
entire trial, as the jury’s view of everything defense counsel did thereafter to attempt
to raise a reasonable doubt as to his client’s guilt would have been ineluctably colored
by skepticism engendered by counsel’s statement.
12
The court instructed the jury prior to closing arguments, and its judicial notice
and consciousness of guilt instructions again called the jury’s attention to counsel’s
statement. After repeating its earlier instruction about the meaning of judicial notice,
Doc. 250 at 14, the court instructed the jury:
If you believe that defendant Rafael A. Pina-Nieves was resigned to spend time
in prison after he was accused of the crime for which he is now on trial, then
you may consider this conduct, along with all the other evidence, in deciding
whether the government has proved beyond a reasonable doubt that he
committed the crimes charged. This conduct may indicate that he thought he
was guilty of the crimes charged and was trying to avoid punishment.
Id. at 15.
The government again highlighted the statement in its closing argument,
opening its summation by telling the jury:
. . . . Even before the first witness testified in this case for the United
States, you learned that counsel for the defendant made the following statement
of his client in a motion filed in this case: “Just the fact that the government
learned that defendant was resigned to the fact that he will have to spend time
in prison is a tremendous advantage to have in plea negotiations.”
This is evidence of consciousness of guilt. As the Judge instructed you

a minute ago, you will decide how much weight to give that statement, but in
deciding how much weight to give that statement, consider why would the
defendant, Rafael Pina-Nieves, be resigned to spend time in prison after he was
accused of the crime? Why?
****
He knows what he did. He knew he was prohibited from doing so, and
he knew we could prove it. That is why he was resigned to spend time in prison
after he was accused of the crime.
13
Tr. 12/22/21 at 30-31 (emphasis added). Those remarks were vividly illustrated by
the accompanying government PowerPoint presentation. The opening slide stated:
“The evidence showed that Counsel for Defendant made the following statement of
his client in a motion filed in this case” (emphasis added), thus pointing to Mr.
Rebollo as the author of the statement. This was followed by a bright yellow
quotation of the statement, highlighting it as evidence of consciousness of guilt, and,
for good measure, heading it with “JUDICIAL NOTICE OF STATEMENTS BY
DEFENSE COUNSEL,” as if to add judicial imprimatur to its construction of the
statement as consciousness of guilt evidence. Doc. 251-1. The second slide was
headed in bright red, “DEFENDANT RESIGNED TO SPEND TIME IN PRISON
AFTER BEING ACCUSED OF THE CRIME.” Id.
Immediately following the government’s argument and just prior to the defense
summation, the government asked the court to instruct Mr. Rebollo not to refer to the
matter of punishment in his argument. Tr. 12/22/21 at 43. Mr. Rebollo protested that
the government was seeking to tie his hands: “Now they not only seek the admission
of it, knowing it talks about punishment, but now they want to tie my hands, so I
can’t talk about punishment.” Id. at 43-44. The government should, he continued,
have taken into consideration, in deciding to use the statement, that he was “entitled
to a response.” Id. at 44. The court then instructed Mr. Rebollo—not just once but
14
four times—that he was forbidden to say anything about the statement beyond
reading it and arguing that it did not show consciousness of guilt. Id. at 44, 45
(twice), 46.3 In the jury argument that followed, Mr. Rebollo, having been thus
foreclosed from explaining the context and meaning of the statement or seeking to
delink resignation to punishment from guilt of the offenses charged by arguing that
an innocent person charged with a crime would fear that he could nonetheless be
convicted and be sent to prison, told the jury that he was the author of the statement
in the motion, id. at 92, and that the statement did not show consciousness of guilt
because Pina-Nieves had made the statement at a time when he had “just broke[n]
down,” but that he afterwards “picked himself up” because he believed himself not
guilty of the offenses charged and sought out Mr. Rebollo to take the case to trial. Id.
at 93-94.
The government again stressed the statement in its rebuttal argument, telling
the jury that Mr. Rebollo himself had provided the government with incriminating
evidence against the defendant:
They don’t have to present to you defense theories either. . . . They don’t
have to tell you different theories of what happened. And see, that’s where
these defense counsel get in trouble, because they told you that the defendant,
3
In so doing, the court contradicted its earlier statement in its order allowing
the admission of the statement that the defense would be able to argue to the jury that
counsel was simply repeating or paraphrasing what an informant said.
15
the facts—I’m going to read it again, because in criminal cases you would
expect incriminating evidence to come from the government, but here you have
incriminating evidence coming also from the defense camp.
****
And I’m going to tell you the exact words again because what he [Mr.
Rebollo] told you is not the exact words. “Just the fact that the government
learned that the defendant was resigned to the fact that he would have to spend
time in prison is a tremendous advantage to have in plea negotiations.”
That wasn’t a witness that we brought to testify something the defendant

told that witness. No. No. No. That was the defense attorneys in black and
white, in a motion. Two words come to mind from our behalf: Thank you. More
evidence of guilt.
And then the question is, why? Again, defendants don’t have to present
a defense theory, but here they did. See? And once they present it, you can ask
yourself, well, does that defense theory make sense? Because if it doesn’t make
sense in a case where the defendant is resigned to the fact that he’s going to
spend time in prison, that’s not good for the defendant, is it?
Tr. 12/22/21 at 101-02 (emphasis added). The jury returned its guilty verdicts less
than three hours later.
2. The statement was not admissible under Rules 801(d)(2)(C),

(D).
“The unique nature of the attorney-client relationship . . . demands that a trial
court exercise caution in admitting statements that are the product of this
relationship.” United Stares v. Harris, 914 F.2d 931 (7th Cir. 1990). This is so
because “the routine use of attorney statements against a criminal defendant risks
impairment of the privilege against self-incrimination, the right to counsel of one’s
16
choice and the right to effective assistance of counsel,” United States v. Valencia, 826
F.2d 169, 172 (2d Cir. 1987), and may also “deter counsel from vigorous and
legitimate advocacy.” United States v. McKeon, 738 F.2d 26, 32 (2d Cir. 1984). All
these dangers were present here, and the admission of counsel’s statement
irremediably tainted the fairness of Pina-Nieves’ trial. The importance of these
policies is at its zenith when the attorney whose statements are at issue is trial counsel
for the defendant against whom they are sought to be offered.4 These concerns alone
counseled against the admission of counsel’s statement in this case, given the
extraordinary prejudice that would—and did—inevitably arise from its admission: the
jury would reasonably have believed that defendant’s own counsel would not say
anything adverse to his client’s interests unless it were true and would predictably
have been skeptical of anything said or done by trial counsel thereafter to support his
client’s defenses to the charges against him.
To avoid endangering these fundamental rights of criminal defendants, the
government “should only offer this sort of evidence in rare cases and when absolutely
4
Indeed, in evaluating the admissibility of statements of counsel, courts have
taken into account the inapplicability of these policies where the attorney who made
the statement was not trial counsel in the criminal case. See, e.g., United States v.
Swan, 486 F.3d 260, 265 (7th Cir. 2007); United States v. Brandon, 50 F.3d 464, 468
(7th Cir. 1995); United States v. Persfull, 2009 WL 10681184 at *4 (N.D.Ill. Sept. 8,
2009).
17
necessary,” United States v. Jung, 473 F.3d 837, 841 (7th Cir. 2007). Moreover,
courts should not “subject such statements to the more expansive practices sometimes
permitted under the rule allowing use of admissions by a party-opponent.” Valencia,
826 F.2d at 172, quoting McKeon, 738 F.2d at 31. See Jung, 473 F.3d at 842 (district
court erred in failing “ to apply the more exacting standard [that] must be demanded
for admission of statements by attorneys under Rule 801(d)(2)(D)”); United States v.
Doyle, 2018 WL 1902506 at *13 (S.D.N.Y. April 19, 2018)(“[A]s the government
points out, the inquiry that courts have typically undertaken in the attorney-client
context is, in practice, far more nuanced than merely determining the existence of an
agency relationship.”); United States v. Wells, 1994 WL 421471 at *11 (S.D. Cal.
July 5, 1994)(declining to apply “agency law formalistically” to statements in
attorney’s written brief).
While statements made by counsel may at times be admissible as admissions
of the party they represented when the statement was made, see Lombard, 72 F.3d at
189 n.25 (“Sometimes, an attorney’s statements may be imputed to and admitted
against his client as a principal (emphasis added), citing Harris, 914 F.2d at 931),5
5
Lombard, referring to statements made by defendant’s counsel at a sidebar
conference regarding what he anticipated his client would testify to, expressed doubt
that counsel’s offer of proof would be admissible under Rule 801(d)(2)(D). Id. at 189
n.25.
18
this is not one of those circumstances. More is required than the simple fact that
counsel said something in the course of his representation of a client. It is, as the
defense pointed out, critical to look at precisely what counsel said and in what
context. Whether counsel stated as a fact that Pina-Nieves was resigned to going to
prison or whether he was instead repeating or paraphrasing the out-of-court statement
of a third-party was not, as the court reasoned, something to be evaluated by the jury.
Quite the contrary: that inquiry lies at the heart of the admissibility issue, which is
one for the court to determine and cannot be left to the jury. If counsel was only
repeating or paraphrasing what an FBI form said that an informant had told the
government, this was not a statement of fact that can permissibly be regarded as an
admission by counsel in the role of Pina-Nieves’ agent under Rules 801(d)(2)(C), (D).
It was, and remains, inadmissible hearsay—an out-of-court statement of a third party
admitted for its truth, i.e., that Pina-Nieves was resigned to going to prison. Even
worse, given the government’s revelation in its sur-reply, it was double hearsay: what
an unknown person purportedly told the informant who then relayed it to the
government.6
6
Even assuming arguendo that competent evidence that Pina-Nieves stated, “I
am resigned to going to prison” would have been admissible as consciousness of guilt
evidence, we do not here know what, if anything, he in fact said. What we have
instead is an unknown informant telling a government agent what some unknown
third person purportedly told him and then the agent’s summary of the informant’s
19
To be admissible under Rules 801(d)(2)(C), (D), counsel’s statement must be
one of fact. Unless the statement is one of “clear and unambiguous” fact, it is
inadmissible. See, e.g., United States v. Blood, 806 F.2d 1218, 1221 (4th Cir. 1986);
Huawei Techs. Co. V, T-Mobile US, Inc., 2017 WL 11638984 at *3 (E.D. Tex. Sept.
29, 2017); Kowalski v. Anova Food, LLC, 2015 WL 1117993 at *2 (D. Haw. Feb. 12,
2015).
Nothing in the sentence contained in counsel’s motion represents a clear and
unambiguous statement that Pina-Nieves was, in fact, resigned to going to prison.
Extracting a portion of the statement—“the defendant was resigned to the fact that he
would have to spend time in prison”—entirely distorts the meaning of what counsel
was actually saying, i.e., that the government’s acquisition of this information from
a confidential informant was prejudicial to Pina-Nieves’ ability to engage in effective
plea negotiations. Recognizing the government’s apparent possession of hearsay
information does not make that information any less inadmissible hearsay. To
conclude otherwise is to take counsel’s words entirely out of context. See, e.g., Gill
v. Maciejewski, 546 F.3d 557, 563 (8th Cir. 2008)(evidence excluded where
proponent of the evidence “t[ook] unwarranted liberties with the context of the
statement, and, finally, counsel’s paraphrase of the information in the agent’s report.
Anyone who has ever played the old game of telephone will recognize the potential
for distortion as the statement passes from mouth to mouth.
20
statement”); Wells, 1994 WL 421471 at *11 (excluding statement of counsel
contained in brief where, inter alia, “the statements the Government seeks to admit
appear to have been taken somewhat out of context”).
When the contested sentence is read as a whole and in context, as it must be,
it is clear that this was argument by counsel, not a statement of fact that can properly
be treated as the admission of a party-opponent. In fact, the government’s notice
recognized that the statement was “an attempt to articulate some form of prejudice.”
Doc. 172 at 13. Arguments of counsel are not admissible under Rules 801(d)(2)(C),
(D). See, e.g., United States v. Loach, 34 F.3d 1001, 1005-06 (11th Cir.
1994)(prosecutor’s prior statements inadmissible where he had been engaging in
“advocacy”); In re Rsrv. Fund Sec. & Derivative Litig.,2012 WL 12354233 at *8
(S.D.N.Y. Oct. 3, 2012)(admissions “are limited to statements of facts, and do not
include an attorney’s legal theories, arguments, or conclusions”);United States v.
Demizio, 2009 WL 2163099 at *3-*4 (E.D.N.Y. July 20, 2009)(statement in
government’s pretrial brief not admissible where it “ set[] forth the government’s
interpretation of the indictment” rather than, as in a bill of particulars, stating what
the government will seek to prove at trial); Martinez v. Port Authority, 2005 WL
2143333 at *11 (S.D.N.Y. Sept. 2, 2005)(statements were not admissible where they
were framed as a theory and a matter of speculation); see also McKeon, 738 F.2d at
21
33 (“Speculations of counsel, advocacy as to the credibility of witnesses, arguments
as to weaknesses in the prosecution’s case or invitations to a jury to draw certain
inferences should not be admitted.”). The statement was inadmissible under Rules
801(d)(2)(C), (D).
Admission of statements such as this one, taken out-of-context from a pleading
filed by defense counsel, would have profound implications for the defense function.
See Jung, 473 F.3d at 842 (“From a policy perspective, defendants will be chilled
from sharing information with their attorneys, defense attorneys will be deterred from
vigorous advocacy, and the attorney-client relationship will be impaired if statements
like [counsel’s] regarding Jung's criminal liability are admissible.”). Must defense
counsel now fear that the wrong choice of words or inartful phrasing or shorthand
references to what was earlier clearly described as hearsay information will later be
pounced on by the government and misconstrued as party admissions? Must counsel
henceforth preface every statement with “allegedly” or “reportedly” or insert in every
sentence discussing the contents of government documents qualifiers such as “the
affidavit said” or “according to X”? Must they weigh the making of certain arguments
against the likelihood that their formulation of them will later be construed as an
admission of the defendant? In Laird v. Air Carrier Engine Serv., Inc., 263 F.2d 948
(5th Cir. 1959), on which the court relied, Ex. 1 at 13, the Court had cautionary words
22
to say about counsel’s role in the pretrial conference context:
If counsel, attending these conferences pursuant to the coercive power of Rule

16 must hold himself back for fear that if the hearing is unproductive or the
result is abortive, the client may be faced with the prospect that his defender
has suddenly become the admission-witness against him, pretrial will stagnate.
Counsel will be muzzled.
Id. at 954. The same is true for counsel seeking to safeguard their clients’ rights
through the filing of pretrial pleadings.
3. Decision of this issue in favor of Pina-Nieves will likely result

in an order for a new trial on all counts.
Admission of counsel’s statement had a devastating impact on the fairness of
Pina-Nieves’ trial and seriously undermined his right to the presumption of
innocence. The introduction of this double hearsay cannot be regarded as harmless,
as it destroyed any hope of Pina-Nieves’ receiving a fair trial and denied him his
Sixth Amendment rights to the effective assistance of counsel and to confront the
witnesses against him.
a. Prejudice to Pina-Nieves’ right to a fair trial.
The jury’s being told at the outset of trial that Pina-Nieves, and by implication,
Mr. Rebollo and his trial co-counsel, had so little faith in the merits of the defense to
be presented that Pina-Nieves expected to go to prison and was trying to concede his
guilt by pleading guilty to the charges against him was overwhelmingly prejudicial.
23
How could a criminal defendant possibly obtain a fair trial when the jury was primed
from the get-go by the statement of his own counsel to devalue both his defense and
his trial counsel?7 This prejudice was further exacerbated by the government’s final
argument which prominently featured counsel’s statement as evidence against Pina-
Nieves. And, finally, in its rebuttal argument—the last word the jury heard from the
parties—the government theatrically mocked trial counsel, thanking him for
providing it with inculpatory evidence and contending that the statement itself
provided a valid basis for rejecting the defense theory of the case, effectively using
Mr. Rebollo’s statement to impeach his entire closing argument. This argument
unmistakably conveyed to the jury that neither the defendant nor his counsel actually
believed in the merits of the defense argument by Mr. Rebollo they had just heard,8
thus improperly denigrating the defense and impugning the sincerity and integrity of
defense counsel. Moreover, Mr. Rebollo’s credibility was further unfairly undercut
7
Even had the statement been properly admitted, which it was not, the potential
for such a high degree of unfair prejudice was obvious at the time the court made its
ruling, and the evidence should have been excluded under Fed. R. Evid. 403. See,
e.g., United States v. Varoudakis, 233 F.3d 113, 119 (1st Cir. 2000).
8
As this Court has recognized, prosecutorial arguments in the rebuttal context
can be particularly damaging. See, e.g., United States v. Ayala-Garcia, 574 F.3d 5,
20 (1st Cir. 2009)(“The rebuttal context increased the likelihood of prejudice because
the improper remarks were among the last words spoken to the jury by the trial
attorneys.”).
24
by the government’s frequent objections during his summation, in the course of which
the government said, in the presence of the jury, that Mr. Rebollo had misrepresented
testimony and the central issue in the case, Tr. 12/22/21 at 59, made improper
arguments, id. at 60, 87, 95, 97, and “doesn’t respect the rules of the court.” Id. at 71.
And to make matters worse, the court repeatedly chastised Mr. Rebollo in front of the
jury. Id. at 54, 60, 71, 87, 95, 97.
Prosecutors are “expected to refrain from impugning, directly or through
implication, the integrity or institutional role of defense counsel.” United States v.
Bennett, 75 F.3d 49, 46 (1st Cir. 1996). See, e.g., United States v. Ollivierre, 378 F.3d
412, 420 (4th Cir. 2004), vacated on other grounds, 543 U.S. 1112 (2005)(court
“emphasize[s] the importance of ensuring that prosecutors refrain from impugning,
directly or through implication, the integrity or institutional role of their brothers and
sisters at the bar who serve as defense lawyers,” finding prosecution comments
disparaging defense counsel for making certain arguments with a “straight face” to
be plain error (albeit not reversible)); United States v. Sanchez, 176 F.3d 1214, 1225
(9th Cir. 1999)(finding misconduct in prosecution’s calling defense case “a sham”);
United States v. Rodrigues, 159 F.3d 439, 451 (9th Cir. 1998)(prosecutor’s
“unwarranted attack on defense counsel’s integrity and veracity” “denied the
defendant the right to counsel unstained by unfair disparagement by the United
25
States”); see also United States v. Procopio, 88 F.3d 21, 32 (1st Cir.
1996)(prosecutor’s telling jury that defense arguments were “illusions,” “a smoke
screen aimed at . . . deflect[ing] you from” the truth, and admonishing defense
counsel that the trial “isn’t a game” were “arguably excessive disparagement”);United
States v. Taxe, 540 F.2d 961, 968 (9th Cir. 1976)(labeling as “troublesome”
prosecution argument that denigrated sincerity of defense counsel). The admission
of the evidence, and the government’s exploitation of it, rendered this trial
fundamentally unfair.
b. The introduction of the statement denied Pina-Nieves

his Sixth Amendment right to the effective assistance of
counsel.9
The admission of the statement also rendered Pina-Nieves’ conviction
constitutionally infirm under the Sixth Amendment. “[T]he essential aim of the
[Sixth] Amendment is to guarantee an effective advocate for each criminal
defendant,” Wheat v. United States, 486 U.S. 153, 159 (1988), “because of the effect
[that right] has on the ability of the accused to receive a fair trial.” Mickens v. Taylor,
9
This is also a separate issue that will be raised on direct appeal. While this
Court generally does not review ineffective assistance claims on direct appeal, “the
usual rule does not apply if the key facts are not in dispute and the record is
sufficiently developed to allow a reasoned consideration of the claim.” United States
v. Mercedes-De La Cruz, 787 F.3d 61, 66 (1st Cir. 2015)(internal quotation marks
omitted). Such is the case here.
26
535 U.S. 162, 166 (2002). “[A]ssistance which is ineffective in preserving fairness
does not meet the constitutional mandate.” Id. Admission of the statement denied
Pina-Nieves his right to the effective assistance of counsel in three important
respects: (1) with the admission of the statement, Mr. Rebollo could be a fully
effective advocate for him; (2) admission of the statement turned Mr. Rebollo into an
unsworn witness against him; and (3) because Mr. Rebollo acted as trial counsel,
Pina-Nieves was deprived of the ability to call him as a witness to explain the context
and meaning of the statement.
i. Denial of effective advocacy and turning counsel into an

unsworn witness against his own client.
With the admission of his statement, Mr. Rebollo could not be a fully effective
advocate for Pina-Nieves, as the statement regarding Pina-Nieves’ resignation to
going to jail and desire to be able to engage in plea negotiations would have had the
jury viewing the defense efforts, and especially those of Mr. Rebollo, with a
jaundiced eye from the outset. More particularly, it placed Mr. Rebollo squarely in
the position of being an unsworn witness against his own client.10 See Jung, 473 F.3d
at 841 (through admission of prior counsel’s statements, “[t]he government achieved
10
While this Court has not adopted the breadth of the Second Circuit’s
unsworn witness rule regarding disqualification of counsel, see Fonten Corp. v.
Ocean Spray Cranberries, Inc., 469 F.3d 18, 22-23 (1st Cir. 2006), the potential for
prejudice that underlies the rule is obvious.
27
the equivalent of having Jung’s former attorney stand with the prosecutors and vouch
for his indictment”). Indeed, the government’s rebuttal argument explicitly
recognized this in arguing that defense counsel himself had provided the government
with inculpatory evidence against his client in the form of his own out-of-court
statement. Admission of the statement, and the government’s exploitation of it,
undermined the persuasiveness of the entire defense counsel were seeking to present
and put their credibility at issue throughout the entire trial. Courts have recognized
that the trial process becomes tainted “where counsel assumes a role as an unsworn
witness whose credibility is in issue.” McKeon, 738 F.2d at 35. See United States v.
Diozzi, 807 F.2d 10, 15 n.10 (1st Cir. 1986)(stating that its conclusion in that case
that “defense counsel’s express or implied arguments at trial regarding appellant’s
statements would have been no more testimonial than any other lawyer’s examination
of witnesses or summation to a jury” was “not inconsistent with the Second Circuit
rule that defense counsel who implicitly interprets his own pretrial statements or
conversations becomes an unsworn witness whose credibility is at issue”).
Under such circumstances, where defense counsel may argue with respect to
matters as to which he has first-hand knowledge, the government is often only too
quick to move to disqualify defense counsel, as it did in Diozzi. See, e.g., United
States v. Locascio, 6 F.3d 924, 934 (2d Cir. 1993)(government based argument for
28
disqualification of defense counsel in part on its contention that defendant would
have had an unfair advantage when defense counsel argued his interpretation of tapes
of conversations at which he had been present); United States v. Cunningham, 672
F.2d 1064, 1074-75 (2d Cir. 1982)(government moved for disqualification to prevent
counsel from arguing to jury his interpretation of the words a government witness
would attribute to him because he would “implicitly be testifying as to his version of
the conversation” in which he participated). Here, by contrast, the government
preferred to have both counsel’s statement and the prejudice to the defense inherent
in Mr. Rebollo’s role as primary defense counsel.
The court’s restrictions on what Mr. Rebollo could argue about the statement
further exacerbated the prejudice. Given the government’s focus on the statement as
telling evidence of guilt, Mr. Rebollo had to say something about the statement in his
closing argument. Faced with the limitation of confining his argument to why the
statement did not show consciousness of guilt and the prohibition against any
mention of punishment, Mr. Rebollo had no choice but to argue, if he was to say
anything at all about the statement, that Pina-Nieves did in fact say that he was
resigned to going to prison.11 And even though the court instructed the jury that
11
Mr. Rebollo went on to explain Pina-Nieves’ change of heart, but, as the
court instructed the jury, arguments of counsel are not evidence. Doc. 250 at 16.
29
“sometimes an innocent person may resign himself . . . to spend time in prison for
some other reason than” consciousness of guilt, Doc. 250 at 15, Mr. Rebollo was
precluded from arguing this very point because it would have required reference to
a prison term, a matter that was part of the statement itself.
It is true that this Court has not embraced the Second Circuit’s unsworn witness
jurisprudence, Ex. 1 at 22-24, but nor has it had the occasion squarely presented by
this case to determine whether, and to what extent, it will follow the reasoning of the
Second Circuit. This case also squarely presents the Court with important questions
of first impression in this circuit: under what circumstances may a statement by trial
counsel be admitted against his client at trial and, if the statement is admitted, under
what circumstances must trial counsel be disqualified. These are questions of critical
importance to the performance of the defense function, and Pina-Nieves should be
permitted to remain on release while the Court grapples with these issues.
ii. Unavailability of explanation that counsel was not

making an admission that Pina-Nieves was resigned to
going to prison.
Moreover, Mr. Rebollo’s role as defense counsel deprived Pina-Nieves of
potentially exculpatory evidence in the form of an explanation of what the statement
actually meant, as Mr. Rebollo could not appear both as defense counsel and as a
witness to testify that the statement in the motion was not, in fact, an admission by
30
Pina-Nieves. The advocate-witness rule “bars an attorney from appearing as both an
advocate and a witness in the same litigation.” United States v. Angiulo, 897 F.2d
1169, 1194 (1st Cir. 1990), quoting United States v. LaRouche Campaign, 695
F.Supp. 1290, 1315 (D.Mass.1988). Here, the court singled out this evidence in three
separate instructions, telling the jury, inter alia, that the fact that counsel made the
statement could “be so accurately and readily determined that [it] cannot be
reasonably disputed,” Doc. 250 at 14, and that it was up to it to decide whether Pina-
Nieves made the statement at issue, i.e., that he was resigned to going to jail, and, if
so, how much weight to give it. Doc. 250 at 13. Through the government’s arguments
and these instructions, the statement was of central importance in the case, yet Pina-
Nieves was represented at trial by counsel who could not effectively counteract it.
See, e.g., United States v. Kliti, 156 F.3d 150, 155-57 (2d Cir.1998)(defendant
received ineffective assistance of counsel where trial counsel could not testify
regarding exculpatory statements made to him by a government witness).
Had Mr. Rebollo not been trial counsel, Pina-Nieves, represented by different
trial counsel, would have been able to call Mr. Rebollo as a defense witness to testify
that he wrote the statement in a motion to dismiss the charges against Pina-Nieves,
that he was not repeating something that Pina-Nieves had said but was instead
referring to something that the government reportedly had been told, that these were
31
his words and not those of Pina-Nieves, and that it was his statement, made in arguing
the motion, and not that of Pina-Nieves. Other counsel could then, in closing
argument, have effectively rebutted the government’s construction of the statement
by explaining the actual context and meaning of the statement and pointing out to the
jury that the government had presented no evidence that Pina-Nieves had, in fact, ever
himself stated that he was resigned to going to jail but was relying instead on a
tortured and wholly inaccurate interpretation of the statement.
As trial counsel, Mr. Rebollo could do none of this. Under similar
circumstances, the government is only too quick to move to disqualify defense
counsel. See, e.g., McKeon, 738 F.2d at 29 (government argued that counsel should
be disqualified because he “ought” to be called as a witness to explain the difference
between what he said in his opening statement in the prior trial of the case and the
inconsistent statements in his opening statement in this case); United States v.
Cunningham, 672 F.2d at 1074-75 (counsel could properly be disqualified if witness’
testimony about a conversation she had with him were admissible). Here, however,
the government chose to avail itself of both counsel’s statement and the prejudice to
Pina-Nieves that would inevitably arise from his inability to effectively counter the
government’s interpretation of it.
32
c. The court failed to take any steps to counteract the prejudice

from the introduction of trial counsel’s statement.
Once the court decided that trial counsel’s statement was admissible, the
likelihood of prejudice to Pina-Nieves’ rights to a fair trial and to the effective
assistance of counsel were obvious. The court, however, made no inquiry of Pina-
Nieves regarding whether he understood the implications of the admission of his trial
counsel’s statement for those rights and knowingly consented to Mr. Rebollo’s
continuing as trial counsel even though he would, as the result of the court’s ruling,
be an unsworn (and powerful) witness for the prosecution and even though his
continuance as trial counsel would preclude his appearing as a defense witness to
explain the statement. Nor did it question whether Mr. Rebollo could continue as trial
counsel if his statement were to be admitted.
Under such circumstances, the government has generally sought trial counsel’s
disqualification because he would be an unsworn witness for the prosecution or the
defense or because he should be available as a witness to testify for the defendant
regarding what was actually said or what he actually meant when he made the
statement, and courts have found disqualification of trial counsel required. McKeon
is a case in point. In McKeon, once the court ruled that factual statements made
during counsel’s opening statement at the prior trial of the case were admissible
33
because they were directly contradictory to statements made in his opening statement
in this trial, the trial court, in a decision affirmed by the Second Circuit, ruled that
trial counsel should be disqualified even though the defendant waived his right to call
counsel as a witness because counsel would still be an unsworn witness as to his own
credibility. 738 F.2d at 29, 34-35. See Cunningham, 672 F.2d at 1074-75 (counsel
could properly be disqualified if witness’ testimony about a conversation she had with
him were admissible because counsel “ought to be a rebutting witness, either to deny
the conversation, or to provide an innocent explanation for the jury to consider” even
though defendant was willing to waive the conflict).
Given the right of criminal defendants to counsel of their choice,
disqualification is a severe remedy, but, under the circumstances of this case, if
counsel’s statement were admissible (which it was not for all the reasons previously
discussed), then Mr. Rebollo should not have been trial counsel. Instead, the court
allowed both, to Pina-Nieves’ irremediable prejudice.
The admission of the statement was so prejudicial to Pina-Nieves’ right to a fair
trial and the effective assistance of counsel that a decision of the issue in his favor
will likely result in an order for a new trial.
34
4. Nothing in the District Court’s Analysis Undercuts the Force

of Pina-Nieves’ Arguments.
The district court’s rejection of this issue as a basis for release pending appeal
rests on four grounds: (1) that Mr. Rebollo filed the motion to dismiss in his capacity
as defense counsel; (2) that the statement was an admission on a party-opponent; and
(3) that there was no problem with Mr. Rebollo’s continued participation as trial
counsel, and (4) if there was error, it was harmless. Nothing in the district court’s
analysis justifies the admission of counsel’s statement. Nor, for the reasons previously
addressed, can the error be regarded as harmless, especially given the district court’s
repeated emphasis on the statement through its judicial notice and consciousness of
guilt instructions and the government’s emphasis on the statement in closing and
rebuttal arguments as powerful corroboration, in defense counsel’s own words, of the
guilt of Pina-Nieves and the hollowness of his defenses.
a. The district court’s conclusion that the statement was

admissible because Mr. Rebollo was authorized to file
the motion to dismiss mischaracterizes Pina-Nieves’
arguments and is inconsistent with the requirements of
Rules 801(d)(2)(C), (D).
Pina-Nieves did not argue, as the district court frames it, that Mr. Rebollo
“exceeded his authority by filing the motion to dismiss,” Ex.1 at 11, or that he “filed
this motion on a lark without the authority to do so.” Id. at 14. Instead, what he
35
argued was that for a statement to be admissible under (C), the statement must have
been “made by a person whom the party authorized to make a statement on the
subject.” Rule 801(d)(2)(C)(emphasis added). Doc. 271 at 19-21. “Subsection (C)
requires the declarant to have specific authority from a party to make a statement
concerning a particular subject.” United States v. Bonds, 608 F.3d 495, 502 (9th Cir.
2010)(emphasis added). There is nothing to indicate that Pina-Nieves authorized
counsel to make any statement whatsoever on the subject of his expectations
regarding the likelihood that he would go to prison. The statement was, therefore,
inadmissible under (C). See, e.g., United States v. Portsmouth Paving Corp., 694 F.2d
312, 321 (4th Cir. 1982)(statement inadmissible where there was no evidence that
individual was authorized to make the particular damaging admission at issue);
Integrated Comm. & Techs., Inc., 478 F.Supp.3d 126, 135 (D.Mass. 2020)(evidence
inadmissible where no evidence that defendants authorized statements made to
police); Carballo-Rodriguez v. Clark Equip. Co., 147 F. Supp. 2d 66, 76 (D.P.R.
2001)(evidence excluded where court had no basis for concluding that party had
authorized the making of the statement at issue).
Because the court’s discussion at pages 12-14 of its opinion focuses on Mr.
Rebollo’s filing of the motion to dismiss per se rather than on the argument actually
36
made by Pina-Nieves, it is irrelevant to the question at hand.12 Just because a sentence
is contained in a pleading filed by counsel does not, as the court appears to assume,
render it admissible under (C) or (D). The court failed to recognize the critical
distinction between the general precept that an attorney “speaks” for his client during
the course of his representation, Ex.1 at 12-13, and the specific requirements for
admissibility under Rules 801(d)(2)(C), (D).
The very cases on which the court relies illustrate this distinction. In United
States v. Lopez-Ortiz, 648 F.Supp.2d. 241 (D.P.R. 2009), a decision by the same
district court judge, which did not involve statements of counsel but rather those of
federal agents, a federal agent stated in an affidavit in support of a search warrant that
agents found the seized currency in the defendant’s waistband area, but during the
ensuing suppression hearing before a magistrate judge agents testified that they saw
the defendant counting the money as he walked. Id. at 246. The crux of the issue, the
court said then, in sharp contrast to its reasoning in this case, “is whether the
government submitted the contested statements for their truth in one forum while
12
As are the cases cited by the court at page 14. In United States v. Kelly, 2008
WL 5427791(D.Me. December 30, 2008), the court was addressing the defendant’s
efforts to argue a speedy trial act violation in a manner contrary to motions previously
filed by counsel. In Bank of America, N.A. v. Burt, 2007 WL 1074742 (D.R.I. March
30, 2007), a party challenged his counsel’s signing of a consent order as
unauthorized. Neither of these cases had anything to do with the admissibility of
statements by counsel under Rules 801(d)(2)(C), (D).
37
denying their truth in another.” Id. at 248.13 Because the government did just that, the
court ruled that the magistrate judge properly considered the affidavit in assessing the
credibility of the agents. The differences between Lopez-Ortiz and this case
demonstrate the error in the court’s very different reasoning in this case. First, the
statement at issue in Lopez-Ortiz was made in a sworn affidavit in which context the
agent necessarily attested to the truth of the statements contained therein, not in an
argumentative pleading. Second, the agent’s statement that the defendant had the
money in his waistband was, unlike this case, clear and unequivocal. Third, at the
suppression hearing, agents testified to facts directly inconsistent with the factual
statement in the affidavit. By contrast, here, nothing was said at trial that was
inconsistent with what counsel said in the motion. See Valencia, 826 F.2d at 173
(excluding counsel’s statement because, inter alia, there was no inconsistency
between counsel’s statement and the position taken at trial where evidence was
13
For this proposition, the court relied on United States v. Kattar, 840 F.2d 118
(1st Cir. 1988). Kattar, in which this Court ultimately concluded that statements made
in a brief filed by the DOJ in another case were admissible under Rule 801(d)(2)(B),
stressed the importance of factual inconsistency between the party’s earlier statement
and its position in the present case in the admissibility analysis: “The government
cannot indicate to one federal court that certain statements are trustworthy and
accurate, and then argue to a jury in another federal court that those same assertions
are hearsay.” Id. at 131.
38
offered to show defendant’s consciousness of guilt).14
b. The statement was not an admission of a party-

opponent.
The district court is simply incorrect in stating that statements made by counsel
14
The other cases cited by the court also do not support the admission of the
statement at issue in this case. In Laird v. Air Carrier Engine Serv., Inc., 263 F.2d
948 (5th Cir. 1959), Doc. 187 at 10, counsel’s statement at the pretrial conference was
an unambiguous statement of fact to which counsel formally stipulated. Id. at 950.
The Court canvassed the law concerning attorney statements in general terms but did
not treat counsel’s statement as a party admission in its analysis because the trial
court had allowed the defendant to withdraw the stipulation. Id. at 953-54. In
Williams v. Union Carbide Corp., 790 F.2d 552 (6th Cir. 1986), the Court concluded
that the district court erred in refusing to permit the defense to impeach the plaintiff
on cross-examination with a statement, made in his prior complaint, attributing his
injuries to an acetylene fire, whereas at trial he contended they were caused by toxic
chemicals. That case, too, was very different from this one, because (1) the prior
statement in the complaint was fundamentally inconsistent with plaintiff’s position
at trial, (2) there is no indication in the opinion that the complaint statement would
have been expressly attributed to trial counsel, (3) the statement was to be used to
cross-examine the plaintiff, who could offer an explanation of the apparently
inconsistent statement, and (4) it was a civil case and, therefore, none of the
considerations that counsel against the admission of trial counsel’s statements in
criminal cases were present. In United States v. Cook, 2018 WL 6499872 at *3 (D.
Del. Dec. 11, 2018), the court held admissible, in a bank fraud/false statements case,
testimony by three bank employees regarding statements by defendant’s prior counsel
at a meeting at the bank, during which counsel, according to the bank employees,
admitted that the defendant had committed bank fraud and had falsified receivables
securing the bank’s loans. Cook is also very different from this one, most importantly,
in that the attorney who made the statements was prior counsel, not trial counsel,
which renders inapplicable the important considerations weighing against the
admission of statements made by trial counsel. And because the statements were
allegedly made by prior counsel, he would be available at trial to contravene the
testimony of the bank employees regarding what he had purportedly said five years
earlier, as he did in his testimony before the grand jury.
39
in the course of representing a client are “[g]enerally” admissible as party-opponent
admissions in criminal cases. They may sometimes be admissible, but only if they
meet the requirements of Rules 801(d)(2)(C), (D), The statement at issue here does
not, for the reasons previously shown.
The cases on which the district court relied take an erroneously broad view of
admissibility under (C) and (D), and the district court’s analysis relies on generalities
pronounced in those cases rather than an assessment of the statements found
admissible in those cases. For example, in Hanson v. Waller, 888 F.2d 806, 814 (11th
Cir. 1989), the court found a letter written by appellant’s prior counsel admissible
under (C) because it “related to the management of Appellant’s litigation.” As shown
in the preceding section, admissibility under (C) is considerably more circumscribed
than the Hanson court recognized.15 In any event, however, counsel’s statement in
that case was, unlike this case, one of unequivocal fact directly contrary to appellants’
position at trial.16 In Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998), the
15
The court in Bensen v. American Ultramar, 1996 WL 422262 at *10
(S.D.N.Y. July 29, 1996), on which the district court also relied, Ex. 1 at 14-15, did
recognize this limitation in excluding under (C) two documents containing statements
which the court could not find were authorized by the client.
16
Similarly, in Pemberton v. Lloyd’s Register Drilling Integrity Services, 2016
WL 6820389 (S.D.Tex. November 16, 2016), the court, relying on an overbroad
agency theory, preliminarily ruled that counsel’s statements would be admissible.
However, because the statements at issue there were ones of fact inconsistent with the
40
statement was ruled the admission of a party because the document was offered into
evidence by the client’s own habeas counsel.17 Pugh v. Casimir, 2021 WL 4463103
at *10 (E.D.N.Y. Sept. 29, 2021), concerned a flat statement of fact by prior counsel
inconsistent with the position taken by his client in this case, prefaced by the words,
“My client tells me that . . . .” The Pugh court went on to note that, while prior
statements by counsel could be admitted “freely” in civil cases, that directive did not
apply “to attorney statements sought to be introduced in criminal cases.” Id. at *10
n.14. At issue in Zitz v. Pereira, 119 F.Supp.2d 133 (E.D.N.Y. 1999), was a factual
statement in a prior complaint filed by the client’s attorney that was inconsistent with
the client’s position in this litigation. None of these cases support the admission of
counsel’s statement in this criminal case.
Contrary to the district court’s opinion, Ex. 1 at 17, Pina-Nieves did “specify
. . . which conditions trigger” (C) and (D). The discussion in Section IV(A)(2), supra,
which is essentially the same argument presented to the district court, plainly
addresses the requirements for admissibility under (C) and (D) in a criminal case: at
client’s position at trial, Pemberton does not support the admission of counsel’s
statement here.
17
In United States v. Margiotta, 662 F.2d 131, 142-43 (2d Cir. 1981), the court
did not examine the requirements for admissibility under (C) and (D) because it found
that the statements were properly excluded on another ground.
41
minimum, a prior statement of fact by counsel inconsistent with the client’s current
position.
The district court recognized the policies underlying the Second Circuit’s
McKeon decision and that other courts had embraced a more “exacting” standard for
the admission of statements made by defense counsel, Ex. 1 at 17-18, but concluded
that these policies did not change the result here. The court’s reasons why this is so
do not survive scrutiny. First, the court relied on the fact that the evidence “consumed
a di minimis [sic] amount of time at trial.” Id. at 18. How much time trial time the
admission of the evidence consumes is, of course, utterly irrelevant to the question
of admissibility. If what the court meant, however, is that the admission of the
statement could not have been harmful error because of its brevity, Pina-Nieves has
already explained how the admission of the evidence, coupled with the government’s
exploitation of it in its presentation of its case and in its closing arguments and the
court’s judicial notice and consciousness of guilt instructions rendered the entire trial
fundamentally unfair.
Second, the court reasoned that the statement need not have been excluded
under Rule 403 because “that Pina resigned himself to going to prison is not a
difficult concept for the jury to understand.” Id. True, but irrelevant. The jury would
have understood only too well what counsel’s statement meant in terms of Pina-
42
Nieves’ belief in his own defenses and trial counsel’s credibility in arguing Pina-
Nieves’ innocence, and therein lies the prejudice, as previously addressed.
Third, the court rejected the contention that admission of statements such as
that of Mr. Rebollo will chill vigorous advocacy because his statements were
“deliberate representations to the court,” the potential for admissibility of which
under (C) or (D) was “evident.” Id. at 19. As already explained, Mr. Rebollo’s
statement was not a representation of fact to the court but instead an argument why
the government’s possession of the information provided to it by an informant was
prejudicial to Pina-Nieves. There is no history or practice that would have made it
“evident” to Mr. Rebollo that his phrasing of the sentence in question would open the
gates to the admission of the sentence as damning evidence of his client’s guilt.18
Contrary to the district court’s reasoning, this case illustrates precisely why care must
be taken in determining the admissibility of statements of trial counsel in a criminal
case and the danger to zealous advocacy inherent in overbroad application of Rule
18
In Purgess v. Sharrock, 33 F.3d 134, 144 (2d Cir. 1994), a civil case which
the district court cited in support of this proposition, the prior statement of counsel
was, unlike this case, an unequivocal statement of fact. The district court appears to
have concluded from its comparison of Purgess, in which the statement was
contained in a written pleading, with Valencia, in which counsel’s statements were
made in a more casual context, Ex. 1 at 19-20, that anything written by counsel in a
formal pleading is fair game for admissibility under (C) or (D). As has been
demonstrated, that is not the standard for admissibility.
43
801(d) in criminal cases. Nor can this case be properly analogized to those in which
counsel’s statements were made as part of a failed pretrial strategy. Id. at 20. As
explained by the Jung court, Harris, on which the district court relied here, is
inapposite. In Jung, a securities/mail fraud prosecution, the Court held that the trial
court erroneously admitted evidence of former counsel’s inculpatory statements
regarding the defendant, including that he had engaged “in improper and illegal
trading.” 473 F.3d at 840. In the course of its analysis, the Court distinguished Harris,
which also concerned former counsel, on the ground that the attorney in Harris had
been acting in an investigative capacity when he had the conversation with an
eyewitness to which the witness testified at trial. As such, prior counsel in Harris was
“testing a theory on behalf of his client” and not “relating confidential information
about his client.” Id. at 841-42, quoting Harris, 914 F.2d at 941. Jung also
distinguished United States v. Saunders, 979 F.2d 87 (7th Cir. 1992), on the same
ground—that counsel had been acting in an investigative capacity seeking to develop
a pretrial strategy and taking a calculated risk in approaching individuals who might
later testify against his client. 473 F.3d at 842. The circumstances in Harris and
Saunders bear no relationship to the circumstances under which the statement was
made here. Moreover, the Sanders court expressly noted that in both that case and
Harris, the defendant's trial counsel was not the lawyer about whose statements or
44
actions the witness testified,” and “[t]herefore, the effectiveness of the defendant's
representation at trial was not compromised by the admission of the evidence.” 979
F.2d at 91. The same cannot be said here.
c. If the statement was admissible, Mr. Rebollo should not have

been permitted to continue as trial counsel.
That the government sought the admission of the statement as consciousness-
of-guilt evidence has nothing to do with the question of its admissibility under Rule
801(d) and certainly cannot serve to render McKeon’s policy concerns inapplicable,
as the district court appears to suggest. Ex. 1 at 20-21. The plain fact of the matter is
that the statement should never have been admitted, in which case Mr. Rebollo would
not have said anything about it at trial, or, assuming arguendo that the statement was
admissible, Mr. Rebollo should not have been trial counsel. In either event, there
would have been nothing for Mr. Rebollo to “repeat” if called as a witness at trial.
Contrary to the district court’s analysis, Mr. Rebollo’s testimony was necessary to
clarify the meaning of what the sentence at issue actually meant, i.e., whether it was
in fact a statement that the client had made to him or was instead a paraphrased
reference to information given to the government by a third party. As trial counsel,
Mr. Rebollo could do none of this.
Nor was the risk that Mr. Rebollo should be disqualified if the statement were
45
found admissible “negligible.” Id. at 22. The circumstances in United States v. Diozzi,
807 F.2d 10 (1st Cir. 1986), Ex.1 at 23-24, were dispositively different than those
present here. In Diozzi, the government contended that trial counsel should be
disqualified because they should be called as witnesses to testify regarding false
statements contained in submissions to the IRS and DOJ. This Court held the
disqualification erroneous for several reasons, none of which are applicable here.
First, counsel had offered to stipulate that the statements were made, and the
government derived nothing from counsel’s testimony that it could not have gotten
equally well from a stipulation, as it could not establish the falsity of the statements
through counsel’s testimony. Second, the positions that counsel would argue at trial
were consistent with the statements defendants had previously made about their
conduct; they would be seeking to demonstrate to the jury that defendants’ prior
statements were true, in the traditional performance of the defense function. It was,
therefore, the credibility of the defendants, and not that of counsel, that was at issue.
The same cannot be said here: Mr. Rebollo’s credibility in defending the case in the
face of what the jury was told was his client’s concession of guilt was at issue
throughout the trial. That being the case, Mr. Rebollo’s “entanglement” in the trial of
this case cannot be described as “minimal.” Id. at 25. The jury’s evaluation of
everything he said, everything he did, in presenting Pina-Nieves’ defenses would
46
have been colored by their knowledge that he had already effectively conceded his
client’s guilt.
The district court’s reliance on Rule 3.7, Ex. 1 at 24, even assuming arguendo
that that rule sets forth the applicable standard, is misplaced. At the beginning of trial,
when this issue was being litigated, there was, contrary to the district court, vehement
dispute regarding whether Pina-Nieves had said he was resigned to going to trial and
whether the sentence at issue actually constituted such a statement by Pina-Nieves.
Mr. Rebollo could not argue any “alternative interpretation” of the statement, id.,
without becoming an unsworn witness as to the meaning of the statement he himself
had made. Disqualification is, indeed, a drastic remedy, but, as the facts and
arguments set forth above demonstrate, it was one constitutionally required in this
case if Pina-Nieves was to have any chance of receiving a fair trial.
B. The Court’s Striking of the Entire Testimony of One of the Two

Witnesses for the Defense Denied Defendant his Fifth and Sixth
Amendment Rights to Present a Complete Defense.
“Whether rooted directly in the Due Process Clause . . . or in the Compulsory
Process or Confrontation Clauses of the Sixth Amendment, the Constitution
guarantees criminal defendants ‘a meaningful opportunity to present a complete
defense.’” Holmes v. South Carolina, 547 U.S. 319, 324 (2006), quoting Crane v.
Kentucky, 476 U.S. 683, 690 (1986). At a minimum, this right encompasses “the right
47
to put before a jury evidence that might influence the determination of guilt.”
Pennsylvania v. Ritchie, 480 U.S. 39, 56 (1987).
The right to offer the testimony of witnesses, and to compel their attendance,
if necessary, is in plain terms the right to present a defense, the right to present
the defendant's version of the facts as well as the prosecution’s to the jury so
it may decide where the truth lies. Just as an accused has the right to confront
the prosecution’s witnesses for the purpose of challenging their testimony, he
has the right to present his own witnesses to establish a defense. This right is
a fundamental element of due process of law.
Washington v. Texas, 388 U.S. 14, 19 (1967). See United States v. Maxwell, 254 F.3d
21, 26 (1st Cir, 2001)(“[A] criminal defendant has a wide-ranging right to present a
defense.”). That right was transgressed here.
Defense witness Jordan Millman, a Miami-area realtor, was to testify via
teleconference. Prior to his testimony, the parties discussed his proposed testimony
about residences that Pina-Nieves rented or owned in Miami. After ascertaining that
Millman’s testimony would be consistent with the documents with which the defense
had already provided it, the government voiced no objection to his testimony. Neither
the court nor the government questioned the relevance of his testimony; the court
even asked if the parties could reach a stipulation as to his testimony. Tr. 2/20/21 at
146-47.
Without objection, Millman testified that in 2010, Pina-Nieves rented an
apartment in Miami and moved into it; that he lived in the same apartment building,
48
and that he would see Pina-Nieves in the lobby. Tr. 12/21/21 at 47-49. Not until the
defense moved to admit documents relating to the lease did the government object on
grounds of relevance. Id. at 51. In response, the defense argued that witness would
testify that from 2010-21, he had been involved in various lease transactions with
Pina-Nieves and that
there is no question . . . that the fact that Mr. Pina spent time in Miami and
actually had a residence in Miami, and bought property and lived in Miami, has
a 401 value with respect to . . . whether he maintained control over those
firearms, because . . . Mr. Pina spent little time in Puerto Rico.
Most of his time was in Miami, and that is something that the jury can
consider in determining whether he had the intent to exercise dominion and
control over those firearms.
Id. at 54. After the court sustained the government’s objection, the defense made the
following offer of proof:
[ Millman] would have testified that in 2010, he assisted Mr. Pina in renting
an apartment at the Epic, that he lived in that apartment through 2013. That in
2013, that apartment was sold, and he moved to Aventura, and that in 2016, he
assisted Mr. Pina . . . in starting to look for properties to buy, that he purchased
an apartment in 2019. He has personal knowledge that he lived there, and that
he sold that apartment in 2021 and bought a house in north Miami.
Id. at 57-58. The court thereafter informed the jury that Millman’s testimony had been
stricken form the record because it was irrelevant and should not be considered by
them. Id. at 58.
The weapons and ammunition were found in a house in Caguas Real where
49
Pina-Nieves had not lived for many years. There being no claim of actual possession,
the government was required to prove beyond a reasonable doubt that on or about
April 1, 2020, Pina-Nieves “knowingly ha[d] the power and intention . . . to exercise
dominion and control over [the weapons and ammunition] either directly or through
others.” United States v. McLean, 409 F.3d 492, 501 (1st Cir. 2005). The proffered
testimony was unquestionably relevant to this outcome-determinative inquiry.
Evidence is relevant if it has “any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Fed. R. Evid. 401. The Rule 401
admissibility standard “thus is a liberal one.” Mitchell v. United States, 141 F.3d 8,
14 (1st Cir. 1998),with a “very low threshold.” United States v. Cruz-Ramos, 987
F.3d 27, 42 (1st Cir. 2021). “To be relevant, the evidence need not definitively
resolve a key issue in the case . . . it need only move the inquiry forward to some
degree.” Bielunas v. F/V Misty Dawn, Inc., 621 F.3d 72, 76 (1st Cir. 2010). The
proffered evidence here easily satisfies “this not-too-difficult-to-meet standard.” Id.
To counter the government’s constructive possession theory, the defense
planned a two-pronged attack: first, to show that other persons had access to the area
where the weapons and ammunition were found, which it accomplished through the
second defense witness, and two, to show, through Millman’s testimony, that Pina-
50
Nieves was primarily living a thousand miles away from the location of the weapons
and ammunition, in Miami and not Puerto Rico, and had been for some time. These
two lines of defense were interdependent, each needing the other to give it its full
force. The court’s erroneous exclusion of the evidence (and the striking of the
testimony that had already been given before the government objected) deprived
Pina-Nieves of half of his defense, and, in so doing, weakened the force of the other,
thus denying him his Fifth and Sixth Amendment rights to present a complete
defense.
The proffered evidence was clearly relevant. The further a person distances
himself from the item at issue, the weaker the inference that he had the power and
intent to exercise control over that item. Indeed, the government conceded that had
Pina-Nieves lived continuously in Miami since 2010, “then of course it would
impinge upon the evidence in this case.” Tr. 12/21/21 at 52.19 If Pina-Nieves’
19
With respect to the two weapons at issue, the relevant period was
considerably more limited than from 2010 on. The Glock pistol that was the subject
of Count Two and one of the weapons listed in Count One was first sold to the public
in February 2016, to someone in Tennessee, Tr. 2/20/21 at 85-87, and the Smith &
Wesson, the other weapon listed in Count One, was first sold to the public in May
2017. Id. at 89. Neither of those purchasers were shown to have had any connection
whatsoever to Pina-Nieves. Thus, those weapons cannot have arrived in Puerto Rico
until some unknown time after those dates. By 2016, according to the defense proffer,
Pina-Nieves was renting and living in an apartment in Miami and actively looking for
a home to buy there, which he did in 2019.
51
continuous residence in Miami would “of course” have negatively impacted the
government’s case, how then, can it be totally irrelevant that he spent most of his time
there? The court evidently found it relevant that Pina-Nieves, when he was in Puerto
Rico, lived elsewhere than the Caguas Real house, taking judicial notice of an FBI
agent’s statement attesting to that fact. See Tr. 12/14/21 (Gaines excerpt) at 74. How
then can it not be relevant that he was living in Miami for most of the relevant time
frame? By striking Millman’s testimony and telling the jury that it was irrelevant, the
court seriously undermined Pina-Nieves’ defense. That he was living elsewhere than
the house in which the weapons and ammunition were found was a factually and
legally valid defense and was critical to the jury’s ability to fairly evaluate whether
he intended to exercise control over those items.
The government devoted much of its case to establishing Pina-Nieves’
ownership and control of the house where the weapons were found. Control of the
house does not, however, automatically equate to “power and intention at a given
time”—here, on or about April 1, 2020—to exercise dominion and control over the
weapons and ammunition. The proffered evidence was relevant to the determination
of that critical issue. The district court’s error lies in its equation of dominion and
control over the premises with dominion and intent to exercise control over the
weapons and ammunition. Ex. 1 at 29. It does not suffice for the government to show
52
only that Pina-Nieves owned or controlled the house where the weapons and
ammunition were found. or even that he owned the weapons and ammunition. See
United States v. Henderson, 575 U.S. 622, 625 (2015)(“By its terms §922(g) does not
prohibit a felon from owning firearms.”); United States v. McLean, 409 F.3d 492 (1st
Cir. 2005)(insufficient evidence to prove that defendant had knowledge of firearm
found in trailer he owned where he did not stay in room where weapon was found);
United States v. Rogers, 41 F.3d 25, 30 (1st Cir. 1994)(“[O]wnership alone does not
establish possession.”).
By not only precluding further testimony but by striking the testimony the jury
had heard and advising them that it was irrelevant, the court implicitly instructed the
jury that proof of the absence of Pina-Nieves from the location where the weapons
were seized was not relevant to the issue of whether he knowingly intended to
exercise control over the weapons and ammunition at issue, thus vitiating an essential
part of the theory of defense. The court may not have bought the defense argument,
see Tr. 12/21/21 at 54, but “the ultimate arbiter of the persuasiveness of the proof
must be the factfinder, not the lawgiver.” Blake v. Pellegrino, 329 F.3d 43, 47 (1st
Cir. 2003). Because the proffered evidence “might [have] influence[d] the
determination of guilt,” Ritchie, 480 U.S. at 56, it was constitutional error to exclude
it.
53
CONCLUSION
The errors that occurred at the trial of this case “unavoidably call into doubt
the reliability of the verdict and the underlying fairness of the trial.” United States v.
Sanabria, 645 F.3d 505, 519 (1st Cir. 2011). Because the issues addressed in this
motion raise substantial questions of law or fact that, if decided in Pina-Nieves’ favor,
will likely result in an order for a new trial on all counts, he should be permitted to
remain on release pending the determination of his appeal by this Court.
Respectfully submitted,
By his attorneys,
/s/ Kimberly Homan /s/ Martin G. Weinberg

Kimberly Homan Martin G. Weinberg
20 Park Plaza, Suite 1000 20 Park Plaza, Suite 1000
Boston, Massachusetts 02116 Boston, Massachusetts 02116
(617) 448-2812 (Telephone) (617) 227-3700 (Telephone)
homanlaw@aol.com (617) 338-9538 (Fax)
owlmgw@att.net
54
UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
_______________
No. 22-1421
________________
UNITED STATES OF AMERICA
v.
RAFAEL PINA-NIEVES,
Defendant-Appellant
_________________
CERTIFICATE OF COMPLIANCE WITH TYPEFACE AND LENGTH

LIMITATIONS
________________
This has motion has been prepared using:
14 point, proportionally spaced, serif typeface (such as CG Times or Times

New Roman). Specify software name and version, typeface name, and point
size below:
WordPerfect Office 2021. 14-point Times New Roman
This motion contains 13,710 words (leave of Court sought May 27, 2022)
I understand that a material misrepresentation can result in the Court striking the
motion or imposing sanctions. If the Court so directs, I will provide a copy of the
word or line printout.
/s/ Kimberly Homan
Kimberly Homan
55
CERTIFICATE OF SERVICE
I, Kimberly Homan, hereby certify that on this 27th day of May, 2022, this
motion was filed with the Court through its CM/ECF system, thus effectuating service
on all parties to this appeal.
/s/ Kimberly Homan .
Kimberly Homan
56
EXHIBIT 1
Case: 22-1421 Case
Document: 00117881326Document
3:20-cr-00258-FAB Page: 58
332 Date
Filed Filed: 05/27/2022
05/24/22 Entry ID: 6498507
Page 1 of 31
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO
UNITED STATES OF AMERICA,
Plaintiff,
v. Criminal No. 20-258 (FAB)
RAFAEL PINA-NIEVES,
Defendant.
OPINION AND ORDER
BESOSA, District Judge.
Before the Court is defendant Rafael Pina-Nieves (“Pina”)’s
motion for bail pending appeal. (Docket No. 271.) For the reasons
set forth below, Pina’s motion is DENIED.
I. Background
Federal Bureau of Investigation (“FBI”) agents conducted a
money laundering investigation in San Juan, Puerto Rico. (Docket
No. 263 at p. 7.) In 2020, the United States applied for an order
authorizing the interception of wire communications pursuant to 18
U.S.C. § 2518 in furtherance of this investigation. See In re
Interception of Wire Communications, 20-mc-053 (FAB). United
States District Judge Raúl Arias-Marxuach issued the interception
order on February 4, 2020. (Docket No. 52, Ex. 1.) This order
authorized the United States to record conversations and voice-

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Page 2 of 31
Criminal No. 20-258 (FAB) 2
mail messages to and from Joed Romero-Soler (“Romero”)’s cellular
phone. (Docket No. 52, Ex. 1.)
On February 6, 2020, the FBI intercepted a conversation
between Pina and Romero (hereinafter, “Call 121”). Pina is a
reggaeton music producer and owner of Rogelio’s gas station in
Caguas, Puerto Rico. (Docket No. 52, Ex. 2 at p. 8.) This business
is managed by Joed Romero-Soler (“Romero”), Pina’s “close
confidant” and personal accountant. Id. at p. 11. The following
is an excerpt from Call 121:
Pina: And what do we do with the safe, motherfucker?
Romero: Bro, right. You have that there built-in. A

whole ordeal, right? No, man, leave it open.
Pina: Man, yes.
Romero: You know, and take out whatever you have . . .

and, if you have anything . . . and leave it
open behind there so that [unintelligible]
there and uses it. You know, tell Miguel to
reset it. You know, that, look . . .
Pina: Nah, nah, bro, I have money and I have all

sorts of things in there: my guns, rifles,
bullets.
Romero: Well, exactly, have Miguel take out anything

he needs to take out. You know what you have
in there, right?
Pina: Yes, but no, no . . . I’m not giving that

motherfucker anything.
Romero: Well, I don’t know . . . and . . . and . . .

you know, the guns? Give them to Jonny.
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Pina: No because all of that is cuenta loca

[literally: crazy account].
See Docket No. 98 at p. 4; Docket No. 114, Ex. 2 at pp. 11-13
(emphasis added).
Subsequently, law enforcement officers executed a search
warrant at Pina’s residence on April 1, 2020, seizing one 9mm Glock
pistol, one .40 caliber Smith & Wesson pistol, and 526 rounds of
ammunition of a different caliber. Id. at p. 4. The 9mm Glock
pistol had been altered to be a machinegun, “able to shoot at a
rapid pace by depressing the trigger and holding it, as opposed to
one at a time.” (Docket No. 235 at p. 37.) On August 13, 2020,
a grand jury returned an indictment charging Pina with possession
of a firearm by a convicted felon (count one), and possession of
a machinegun, in violation of 18 U.S.C. § 922(g)(1) and 922(o)
(count two), respectively. (Docket No. 1.) 1
After seven days of trial, the jury found Pina guilty on both
counts of the indictment. (Docket No. 246.) Today, the Court
imposed a sentence of forty-one (41) months of imprisonment.
(Docket No. 331.) Pina has moved for bond pending appeal. (Docket
No. 271.) The United States opposed this motion. (Docket
No. 285.)
1 Pina pled guilty to one count of bank fraud on May 13, 2015. (Case No. 12-
215, Docket No. 416.) The Court sentenced Pina to the time he had already
served, and two years of supervised release. Id., Docket No. 496.
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II. Section 3143 of the Bail Reform Act
“The provisions of 18 U.S.C. § 3143 govern release pending
sentencing or appeal.” Fed. R. Crim. P. 46(c). Congress enacted
this provision to “reverse the presumption in favor of bail that
had been established under the prior statute.” United States v.
Miller, 753 F.2d 19, 22 (3d Cir. 1985). Pursuant to section 3143,
“it is presumed that an individual convicted of an offense and
sentenced to a term of imprisonment . . . will be detained pending
appeal.” United States v. Vázquez-Botet, No. 04-160, 2007 U.S.
Dist. LEXIS 7084, at *4 (D.P.R. Jan. 30, 2007) (Fusté, J.) (citing
United States v. Colón-Muñoz, 292 F.3d 18, 20 (1st Cir. 2002)).
To prevail, Pina must establish by clear and convincing evidence
that: (1) he is “not likely to flee or pose a danger to the safety
of any other person or the community if released,” (2) that his
“appeal is not for the purpose of delay,” and (3) that the appeal
“raises a substantial question of law or fact” 18 U.S.C. §
3143(b)(1); see United States v. Colón-Berríos, 791 F.2d 211, 214
n.4 (1st Cir. 1986) (“In enacting § 3143, Congress placed the
burden as to all elements bearing on whether to grant bail pending
appeal on defendants.”).
Courts engage in a two-pronged analysis to determine whether
an appeal presents a substantial question of law. United States
v. Zimny, 857 F.3d 97, 99 (1st Cir. 2017). First, the appeal must
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present “a close question or one that very well could be decided
the other way.” Id. at 100 (citing United States v. Bayko, 774
F.2d 516, 523 (1st Cir. 1985)); see also Colón-Muñoz, 292 F.3d at
20 (“The ‘likely to result’ standard is applied flexibly – a
question that can be regarded as ‘close’ will suffice.”). Second,
courts consider the “likelihood prong,” inquiring whether a
favorable disposition will “result in reversal or an order for a
new trial of all counts on which imprisonment has been imposed.”
Id. Moreover, the purported error “must not be harmless or
unprejudicial.” Bayko, 774 F.2d at 523; see, e.g., United States
v. Gurry, Case No. 16-10343, 2020 U.S. Dist. LEXIS 38273, at *31
(D. Mass. Mar, 5, 2020) (“Even if the appellate court were to find
that some witness testimony was admitted in error or were to agree
with the Court that the Government’s statements in its closing
rebuttal were improper, it is unlikely that those decisions would
result in an acquittal, new trial, or a reduced sentence given the
weight of the evidence involved in this case.”).
III. Pina Shall Remain in Custody Pending Appeal
Pina asserts that the Court committed three “grave errors.”
(Docket No. 271 at p. 1.) According to Pina, these errors raise
substantial questions of law. Id. First, Pina challenges the
admission of a statement from his pretrial motion to dismiss. Id.
at pp. 5—30. Second, he avers that the United States introduced

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extraneous evidence by referring to the FBI money laundering
investigation being conducted on Pina. Id. at pp. 35. Third, he
claims that the Court erred by preventing defense witness Jordan
Millman (“Millman”) from testifying at trial. Id. at pp. 35—40.
These purported “errors” are not, however, “close questions of law
or fact.” See United States v. Ahmed, Case No. 18-062, 2021 U.S.
Dist. LEXIS 181009, at *5 (D. Me. Sept. 22, 2021) (denying
defendant’s motion for bail pending appeal because “Ahmed [offered
no] cogent explanation as to why the evidence presented a close
question of law”). Pina fails to explain why any of these alleged
errors would result in the vacatur of his conviction, an order for
a new trial, or a reduced sentence.
A. Consciousness of Guilt Evidence
On the eve of trial, defense attorney Francisco Rebollo-
Casalduc (“Rebollo”) filed a motion to dismiss the indictment,
claiming that the United States “illegally placed an informant in
[his client’s] defense camp.” (Docket No. 168 at p. 2.) According
to an FBI report, Pina:
Gathered his family and associated on his new yacht to

discuss [this criminal case]. Pina was advised by his
attorney’s [that] he will likely have to spend time in
prison, as a result of the charges. Pina’s attorneys
will reach out to the U.S. Attorney’s Office in this
near future to broker a plea agreement. During the
meeting on the yacht, Pina prepared his family and
associates for the likelihood of his serving time in
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prison and handed down responsibilities to his

associates on how to run the businesses, in his absence.
(Docket No. 168, Ex. 2 at p. 2.) Rebollo argued that the United
States leveraged this information against Pina. The motion to
dismiss contains the following statement:
Just the fact that the government learned that [Pina]

was resigned to the fact that he would have to spend
time in prison is a tremendous advantage to have in plea
negotiations. Indeed, the clients the undersigned
counsel represents typically would not accept a plea
offer involving prison sentence under any circumstances,
and that is a tremendous advantage to have in plea
negotiations.
Id. at p. 5 (emphasis added).
The United States moved to admit Rebollo’s statement as
an admission by a party-opponent pursuant to Federal Rule of
Evidence 801(d)(2) (“Rule 801(d)(2)”), arguing that this evidence
demonstrated a consciousness of guilt. (Docket No. 172.) The
Court agreed with the United States. See United States v. Pina-
Nieves, Case No. 20-258, 2021 U.S. Dist. LEXIS 252269 (D.P.R.
Dec. 12, 2021) (Besosa, J.) (denying Pina’s motion to dismiss and
granting the United States’ motion to admit defense counsel’s
statement). Before the first witness testified, the Court informed
the jury that:
Judicial notice is taken that on December 11, 2021,

counsel for defendant Rafael Pina-Nieves made the
following statement in a motion filed in the Electronic
Docket and Case Management System in this court, at Entry
Number 168, as following: ‘Just the fact that the
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government learned that the defendant was resigned to

the fact that he would have to spend time in prison is
a tremendous advantage to have in plea negotiations.’
This judicially noticed fact can be so accurately and
readily determined that it cannot be reasonably
disputed. You may, therefore, reasonably treat this
fact as proven, even though no evidence has been
presented on this point. As with any fact, however, the
final decision whether to – whether or not to accept it
is for you to make. You are not required to agree with
me.
(Docket No. 269 at p. 28.) The Court subsequently provided a
consciousness of guilt instruction to the jury. (Docket No. 250
at p. 15.) If the jury:
believed that [Pina] was resigned to spend time in prison

after he was accused of the crime for which he is on
trial, then [it] may consider this conduct, along with
all other evidence, in deciding whether the government
has proved beyond a reasonable doubt that he committed
the crimes charged. This conduct may indicate that he
thought he was guilty of the crimes charged and was
trying to avoid punishment. On the other hand, sometimes
an innocent person may resign him or herself to spend
time in prison for some other reason. Whether or not
this evidence cause[d] the jury to find that the
defendant was conscious of his guilt of the crimes
charged, and whether that indicates that he committed
the crimes charged, is entirely up to [the jury] to
decide as the sole judges of the facts.
(Docket No. 250 at p. 15.) Assistant United States Attorney María
Montañez cited Rebollo’s statement in her closing argument,
contending that:
This is evidence of consciousness of guilt. As the Judge

instructed you a minute ago, you will decide how much
weight to give that statement, but in deciding how much
weight to give that statement, consider why would the
defendant, Rafael Pina-Nieves, be resigned to spend time
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in prison after he was accused of the crime? Why? Now

you know why. Today you know why. Because he was a
convicted felon, and he knew he could not possess guns
. . . He knows what he did. He knew he was prohibited
from doing so, and he knew we could prove it. That is
why he was resigned to spend time in prison after he was
accused of the crime.
(Docket No. 267 at pp. 30-31.) Before Rebollo’s closing argument,
the Court prohibited him from “mention[ing] the amount of time
that [Pina] may spend in prison.” Id. at p. 44. Rebollo then
addressed this guilt statement in the following manner:
Rebollo: Ladies and gentlemen, the government has made

much – the government made much to a statement
I wrote in a motion. The motion – a legal
argument I was making in a motion, where I
said words to the effect that Mr. Pina may be
resigned to the fact that he may have to serve
time in prison, as if that’s evidence of his
guilt? I wrote that motion. I wrote that
motion. Let me put it in context. When Mr.
Pina came to me for this case, he was
destroyed.
United States: Okay. And this part is hearsay, Your

Honor.
Court: Sustained.
Rebollo: This is a statement. They’re using that

statement to try to say that it shows Mr.
Pina’s consciousness of guilt. I ask you,
does it show consciousness of guilt, or does
it simply show that Mr. Pina is a human being?
Let me tell you, ladies and gentlemen, every
time you have to face – and I’ve represented
people like this in Federal Court for many
years, and going against, going up against the
Feds is tough [Remarks in Spanish]. Somebody
said – Pina explains this for a second time,
and of course he’s going to be worried. Of
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course, he’s going to be. Man, again? Why?

But then he picked himself up. He picked
himself up, and decided, I’m not guilty of
this. I didn’t do this. I’m going to fight.
I’m going to fight this guy. And you help me.
And I said, yeah. Let’s go at it. Because I
believe in the jury system, and I believe that
no jury is going to cause an injustice. So
I’d put my life in the hands of the jury any
time. I told him that. Let’s do it.
United States: You Honor, this is all – this is all not

in evidence, what he told –
Rebollo: Fair response. Fair reply.
Court: Well, go ahead.
Rebollo: And, ladies and gentlemen, like I told you

before, you are the only judges of this case.
Your verdict can never be questioned. The
Judge can’t decide this case. You’re never
going to be asked to explain it, and if anybody
– I mean, I look you in the eyes and I see
that you’re not afraid of the Federal
Government. I see it. And that’s good,
because you’re above them. You’re here to
judge their work. You’re at the same level as
Judge Besosa . . . And Mr. Pina, by the fact
that he’s here fighting like hell, shows that
he had no consciousness of guilt. He just
broke down at a point in time, because he’s a
human being. And he picked himself up. He
thought of his family. He said, let’s fight
this guy. Let’s do it. And that’s why we’re
here, and that’s why we’ve been here for two
weeks.
Id. at pp. 92-94. During the United States’ rebuttal, Assistant
United States Attorney José Ruiz-Santiago (“Ruiz”) stated the
following:
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They don’t have to tell you different theories of what

happened. And, see, that’s where these defense counsel
get in trouble, because they told you that the defendant,
the facts – I’m going to read it again, because in
criminal cases, you would expect incriminating evidence
from the government, but here you have incriminating
evidence coming also from the defense camp . . . And I’m
going to tell you the exact words, because what he told
you is not the exact words. ‘Just the fact that the
government learned that the defendant was resigned to
the fact that he would have to spend time in prison is
a tremendous advantage to have in plea negotiations.’
That wasn’t a witness that we bought to testify something
the defendant told that witness. No. No. No. That
was defense attorneys in black and white, in a motion.
Two words come to mind from our behalf: Thank you. More
evidence of guilt. And then the question is why?
Because of the evidence in this case. Again, defendants
don’t have present a defense theory, but here they did.
See? And once they present it, you can ask yourself,
well, does that defense theory make sense? Because if
it doesn’t make sense in a case where the defendant is
resigned to the fact that he’s going to spend time in
prison, that’s not good for the defendant, is it?
(Docket No. 267 at pp. 101-02.)
1. Defense Counsel’s Statement in Pina’s Motion to

Dismiss is an Admission by a Party-Opponent
Pina contends that Rebollo’s statement is
inadmissible for three reasons. First, he argues that Rebollo
exceeded his authority by filing the motion to dismiss. (Docket
No. 271 at p. 20.) Second, policies relating to the attorney-
client relationship suggest that Rebollo’s statements are
inadmissible. Id. at p. 13. Third, the Court purportedly failed
to disqualify Rebollo after allowing the United States to

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introduce his statement at trial. Id. at pp. 28-29. These
arguments are unavailing.
a. Rebollo Filed the Motion to Dismiss in his

Capacity as Defense Counsel
According to Pina, “[t]here is nothing to
indicate that [he] authorized [Rebollo] to make any statement
whatsoever on the subject of this expectations regarding the
likelihood that he would go to prison.” (Docket No. 271 at p. 20.)
He misconstrues the attorney-client relationship.
Rebollo filed a notice of appearance on
November 29, 2021, less than a month before trial. (Docket
No. 125.) By retaining Rebollo, Pina authorized Rebollo to
represent him in this criminal action. See 2020 Model Rules of
Professional Conduct 1.2(a) (“A lawyer may take such action on
behalf of the client as in impliedly authorized to carry out the
representation.”); 2 McCormick on Evid. § 257 (7th ed. 2013) (“The
dominant position . . . is that pleadings shown to have been
prepared or filed by counsel employed by the party are prima facie
regarded as authorized by the client and are entitled to be
received as admissions.”); 4 Weinstein’s Evidence 801-221 (“Once
agency, and the making of the statement while the relationship
continues are established, the statement is exempt from the hearsay
rule so long as it relates to a matter within the scope of the

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agency.”); see, e.g., United States v. López-Ortiz, 648 F. Supp.
2d 241, 246-47 (D.P.R. 2009) (An affidavit submitted by the United
States to a magistrate judge in support of a search warrant is
admissible pursuant to Rule 802(d)(2) as admission by a party
opponent) (Besosa, J.); See Laird v. Air Carrier Engine Serv.,
Inc., 263 F.2d 948, 953 (5th Cir. 1959) (“An attorney has wide
authority in the conduct of litigation. He is chosen to speak for
the client in Court. When he speaks in Court, whether it be on a
formal trial or in an informal pretrial, he speaks for and as the
client.”); Williams v. Union Carbide Corp., 790 F.2d 552, 555-56
(6th Cir. 1986) (“It is the general rule that statements made by
an attorney concerning a matter within his employment may be
admissible against the party retaining the attorney.”); United
States v. Cook, Case No. 16-50, 2018 U.S. Dist. LEXIS 209029, at
*23 (D. Del. Dec. 11, 2018) (“[The Court] finds that the statements
of Defendant’s prior counsel at the July 2013 meeting are
admissions by an authorized agent of a party opponent and not
hearsay under Rule 801(d)(2)(C) and (D).”).
Legal representation in a criminal action
certainly includes the submission of motions to dismiss. Indeed,
Pina’s motion states: “COMES NOW the defendant, . . . through his
undersigned counsel, respectfully requests a Court order
dismissing this indictment.” (Docket No. 168 at p. 1) (emphasis

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added). The Court has no reason to conclude that Rebollo filed
this motion on a lark or without the authority to do so.
Essentially, Pina attempts to disavow statements that no longer
inure to his benefit. Granting litigants leave to redline motions
submitted by defense counsel will only hinder the timely
administration of justice. See United States v. Kelly, Case
No. 070123, 2018 U.S. Dist. LEXIS 105803, at *18-19 (D. Me.
Dec. 30, 2008) (“If defendants were allowed to repudiate motions
filed and/or signed by their attorneys then representing them
merely be testifying later that the lawyers acted without their
client’s authority, some and perhaps many criminal defendants
would do so as soon as it appeared in their interest, seriously
disrupting the criminal justice system.”); Bank of Am., N.A. v.
Burt, Case No. 06-3945, 2007 U.S. Dist. LEXIS 118416, at *13
(D.R.I. Mar. 14, 2007) (“Attorneys in litigation speak for their
clients on a frequent and routine basis. If a party was able to
readily second-guess . . . his or her attorney’s case management
actions after the fact, the lack of certainty would lead to
chaos.”).
b. Rebollo’s Statements are Admissions of a Party

Opponent
Hearsay is an out-of-court statement offered
“in evidence to prove the truth of the matter asserted in the

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statement.” Fed.R.Evid. 801(c). Federal Rule of Evidence
802 prohibits hearsay, subject to enumerated exemptions and
exceptions. See Fed.R.Evid. 801(d)(2) (setting forth exemptions
to hearsay). An admission by a party opponent is not hearsay if
the “statement is offered against the opposing party” and “was
made by a person whom the party authorized to make a statement on
the subject,” or “by the party’s agent or employee on a matter
within the scope of that relationship and while it existed.”
Fed.R.Evid. 801(d)(2)(C) and (D).
Generally, statements made by attorneys on
behalf of their respective clients are admissions by a party
opponent and constitute admissible evidence. See Hanson v. Waller,
888 F.3d 806, 814 (11th Cir. 1989) (“Although an attorney does not
have authority to make an out-of-court admission for his client in
all instances, he does have authority to make admissions which are
directly related to the management of litigation.”) (citation
omitted); Pemberton v. Lloyd’s Register Drilling Integrity Servs.,
Case No. 16-1732, 2016 U.S. Dist. LEXIS 159269, at *8 (S.D. Tex.
Nov. 16, 2016) (“Because the ‘attorney is the agent of his client,’
the Position Statement is . . . not hearsay under Fed. R. Evid.
802(d).”) (citation omitted); Bensen v. Am. Ultramar, Case No. 92-
4420, 1996 U.S. Dist. LEXIS 10647, at *35 (S.D.N.Y. July 26, 1996)
(“We also find that the lawyers’ statements contained in the second
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and fourth Freshfields Documents are party admissions pursuant to
Rule 801(d)(2)(D).”); Hanson v. Waller, 888 F.2d 806, 814 (11th
Cir. 1989) (“[The] letter sent by [counsel] to Mr. Dorsey was
clearly related to the management of the Appellant’s litigation.
Therefore, the contents of the letter fall within the hearsay
exclusion provided by Rule 801(d)(2)(C).”); Totten v. Merkle, 137
F.3d 1172, 1176 (9th Cir. 1998) (“Under the federal rules, a
statement made by an attorney is generally admissible against the
client.”); United States v. Margiotta, 662 F.2d 131, 142 (2d Cir.
1981) (“Statements made by an attorney concerning a matter within
his employment may be admissible against the party retaining the
attorney.”); Pugh v. Casimir, Case No. 18-7350, 2021 U.S. Dist.
LEXIS 187218, at *26 (E.D.N.Y. Sept. 29, 2021) (“Pugh’s counsel
then told the court that Pugh injured his knee in a car accident
. . . This statement is attributable to Plaintiff and admissible
over a hearsay objection.”); Zitz v. Pereira, 119 F. Supp. 2d 133,
140-41 (E.D.N.Y. 1999) (“A pleading prepared by an attorney is an
admission by one presumptively authorized to speak for his
principal.”); Michael H. Graham, Fed. Practice & Procedure,
Fed.R.Evid. § 2073 (“An attorney may, of course, act as an ordinary
agent and as such make evidentiary admissions admissible against
his principal. Rule 801(d)(2)(C) and (D).”).

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According to Pina, “[more] is required than
the simple fact that counsel said something in the course of his
representation of a client.” (Docket No. 271 at p. 14.) He fails
to specify, however, which conditions trigger Federal Rule of
Evidence 801(d). Instead, Pina relies on United States v. McKeon,
738 F.2d 26, 32 (2d Cir. 1984), requesting that the Court adopt a
heightened standard of review for statements made by defense
counsel. In McKeon, defense counsel informed the jury that his
client’s wife “had absolutely nothing to do with this case other
than doing what many wives do, which is, picking up mail and
opening it.” 738 F.2d at 28. The district court declared a
mistrial. Id. In the subsequent trial, defense counsel modified
his narrative by stating that his client’s wife copied documents
material to the charged offense. Id. The defendant’s appeal
raised a singular issue: the admissibility of an “attorney’s
seemingly inconsistent statement at an earlier trial to prove that
fundamental portions of the defendant’s present case were
fabricated.” Id. at 30.
The McKeon court held that these statements
are subject to Rule 801(d)(2), but that their “evidentiary use .
. . must be circumscribed in order to avoid trenching upon other
important policies.” Id. at 32. These policies include:

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(1) waste of ‘substantial time to pursue marginal

matters,’ (2) jury confusion and undue prejudice (3)
deterring ‘counsel from vigorous and legitimate
advocacy,’ (4) that if an ‘innocent factual explanation
of a seeming inconsistency created by the prior opening
statement exists, the offer of that explanation may
seriously affect the other rights of the defense’ (i.e.
waiver of the attorney-client privilege), and (5) the
the ‘admissibility of a prior opening statement may lead
to the disqualification of counsel chosen by the
defendant’.
Id. at 32-33. The McKeon court held, however, that the defense
counsel’s statements were “properly admitted” as admissions by a
party opponent. Id. at 33. Other jurisdictions have embraced
this “exacting” standard of review for statements made by defense
counsel. See Harris, 914 F.2d at 931.
The Court is unaware of, and the parties do
not cite, precedent from the First Circuit Court of Appeals
pertaining to this discrete issue. The policies identified in
McKeon do not, however, alter the outcome in this case. First,
the admission of this brief statement consumed a di minimis amount
of time at trial.
Second, that Pina resigned himself to serving
a term of imprisonment is not a difficult concept for the jury to
understand. This evidence is, indeed, prejudicial. “But almost
all evidence is meant to be prejudicial (by helping one side and
hurting the other) – why else would a party present it?” United
States v. Rodríguez-Soler, 773 F.3d 289, 296 (1st Cir. 2014).

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Consequently, the prejudice presented by Rebollo’s statement does
not militate toward exclusion pursuant to Federal Rule of
Evidence 403.
Third, Pina contends that the admission of
Rebollo’s statement will deter zealous representation. (Docket
No. 271 at p. 21.) He asserts “that the wrong choice of words or
inartful pleading . . . will later be pounced on by the government
and misconstrued as party admissions.” Id. The Court is cognizant
that the admission of statements by defense counsel may, pursuant
to certain circumstances, chill “vigorous advocacy.” See United
States v. Jung, 473 F.3d 837, 842 (7th Cir. 2007) (holding that
the district court erred in admitting statements by defense counsel
five years before trial to victims of fraud in an effort to
cooperate with an ongoing federal investigation). Rebollo is an
experienced and competent criminal defense lawyer, and the
statements he set forth in Pina’s motion to dismiss are deliberate
representations to the Court. (Docket No. 168.) The potential
for these statements to fall within the purview of Rule 801(d)(2)
is evident. Compare Purgess v. Sharrock, 33 F.3d 134, 144 (2d
Cir. 1994) (“Counsel’s statement of fact constituted an admission
of a party. It was made in a legal brief filed with the court and
subject to the penalty of sanctions”), with United States v.
Valencia, 826 F.2d 169, 173 (2d Cir. 1987) (affirming the exclusion
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of statements made “during the course of informal discussions
between prosecutor and defense counsel concerning the defendant’s
release on bail . . . a pleading or an opening statement to a jury
is more likely to be worded with precision than informal remarks
made during discussions with a prosecutor”). 2 That defense
counsel’s strategy failed is no reason to exclude a vicarious
admission. See Harris, 914 F.2d at 931 (“The fact that a lawyer’s
unsuccessful maneuver might be used against his client will not
unduly chill legitimate advocacy.”); United States v. Sanders, 979
F.2d 87, 91 (7th Cir. 1992) (“The fact that the strategy backfired
does not mean that advocacy will be chilled; lawyers constantly
make tactical decisions in preparation for trial, weighing the
risks and benefits of each”).
Fourth, waiver of the attorney client
privilege is unnecessary to provide context or to explain Rebollo’s
statement. McKeon concerned inconsistent statements made by
2 Valencia contains a forceful dissent. 826 F.2d at 174. According to Judge

Thomas Joseph Meskill, defense counsel’s statements:
should have been admitted as admissions under Rule 801 . . . Rather

than deter advocacy . . . the admission of [these] statements would
cause counsel to be more careful in verifying the accuracy of
information offered by the client before communicating the client’s
statements to the government. An attorney who possesses competent
and reliable information favorable to his client will rarely be
deterred by Rule 801 from vigorously pursuing his client’s
interests.
Id. at 175. The Court agrees with this assessment.

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defense counsel. 738 F.2d at 32. The statement in this action
is, according to the United States, evidence that Pina possessed
a guilty conscious. Rebollo’s testimony as a trial witness would
only repeat the assertions offered in his closing argument: That
Pina’s resignation derived from the prospect of opposing the
federal government. See Docket No. 267 at p. 30 (“Let me tell
you, ladies and gentlemen, every time you have to face – and I’ve
represented people like this in Federal Court for many years, and
going against, going up against the Feds is tough”); see Feld v.
Primus Techs. Corp., Case No. 12-1492, 2015 U.S. Dist. LEXIS 63774,
at *4-5 (M.D. Pa. May 15, 2015) (“Plaintiff’s counsel was clearly
acting within the scope of her authority when she submitted the
Memoranda to this Court. For that reason, the documents are
admissible for evidentiary purposes as party admissions . . . The
testimony of counsel would not be required for purposes of clarity.
If asked about the contents of the Memoranda, Plaintiffs would be
more than able to clarify that they did not draft the documents.”).
He stated explicitly that “[Pina]’s here fighting like hell,
show[ing] that he had no consciousness of guilt. He just broke
down at a point in time, because he’s human.” Id. Reference to
potential terms of imprisonment is inadmissible at trial,
irrespective of Rebollo’s putative testimony. See Shannon v.
United States, 512 U.S. 573, 579 (1994) (“[W]hen a jury has no
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sentencing function, it should be admonished to reach its verdict
without regard to what sentence might be imposed.”); United States
v. Merlino, 592 F.3d 22, 30 n.4 (1st Cir. 2010) (“The length of
the resulting sentence that attached to the conviction is not
relevant to the determination of whether there was sufficient
evidence to support the conviction itself.”).
Fifth, the risk of attorney disqualification
is negligible. Pina assumes that the admission of Rebollo’s
statement placed an obligation on defense counsel to testify. He
maintains that Rebollo’s status as an “unsworn witness” required
that the Court disqualify defense counsel. (Docket No. 271 at
p. 25.) “The contours of the unsworn witness rule – if it can be
called a rule – are unclear.” Fonten Corp. v. Ocean Spray
Cranberries, Inc., 469 F.3d 19, 22 (1st Cir. 2006). Jurisdictions
such as the Tenth Circuit Court of Appeals hold that the unsworn
witness rule and Model Rule of Professional Conduct 3.7 (“Rule
3.7”) are “coextensive.” Id. (citing United States v. Anderson,
319 F.3d 1218, 1221-22 (10th Cir. 2003)). Rule 3.7 provides that
a “lawyer shall not act as advocate at trial in which the lawyer
is likely to be a necessary witness” unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of

legal services rendered in the case; or
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(3) disqualification of the lawyer would work

substantial hardship on the client.
2020 Model R. of Prof’l Conduct 3.7. The Second Circuit Court of
Appeals has adopted a more expansive approach, holding that
disqualification is warranted when “‘the attorney can subtly
impart to the jury his firsthand knowledge of the events without
having to swear an oath or be subject to cross examination’
regardless of whether he is a necessary witness.” Fonten Corp.,
469 F.3d at 22 (quoting United States v. Locascio, 6 F.3d 924, 933
(2d Cir. 1993)).
The First Circuit Court of Appeals has yet to
decide “whether there is any unsworn witness rule that goes beyond
Rule 3.7.” Id. at 23. In United States v. Diozzi it addressed,
however, whether the admission of attorney statements at trial
required disqualification. 807 F.2d 10, 12 (1st Cir. 1986).
Defense counsel submitted a memorandum to the Department of Justice
(“DOJ”) before trial. Id. at 11. The United States then moved to
disqualify defense counsel “on the ground that the government
intended to call them both as material witnesses” to testify about
“false or misleading statements” in the DOJ memorandum. Id. The
district court granted this motion. Id. This disposition was
erroneous, however, because the United States “failed to justify
the disqualification of [defendant’s] chosen counsel.” Id. at 16.

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The Diozzi court rejected the proposition that the “defense counsel
would be putting their own credibility at issue.” Id. at 14.
Defense attorneys “present their cases in a manner designed to
convince juries that their clients are telling the truth.” Id.
The risk that “jurors will consider counsel’s assertions to be
testimony” is a constant concern, but “jurors are instructed that
the assertions of counsel are not evidence.” Id. 3 The DOJ
memorandum did not place defense counsel’s credibility in issue,
because this submission was “no different in this respect from any
pretrial [pleading], suppression motion, or trial brief filed by
an attorney presenting his client’s view of the facts.” Id. at 15.
Rebollo is not an unsworn witness. Moreover,
disqualification is improper pursuant to the unsworn witness rule.
His testimony is not necessary and “relates to an uncontested
issue.” 2020 Model R. of Prof’l Conduct 3.7. No party disputes
that the motion to dismiss referred to Pina’s resignation at
serving a term of imprisonment. Pina and the United States
presented the jury with alternative interpretations of the
statement, not whether or not it was made. The authority to accept
or reject these interpretations belongs exclusively to the jury.
3
See Docket No. 250 at p. 16 (instructing the jury in this case that “arguments
and statements by lawyers are not witnesses. What they say in their opening
statements, closing arguments at other times in intended to help you interpret
the evidence, but it is not evidence”).
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Even if this Court were to adopt the more expansive unsworn witness
rule, disqualification would be improper. This is a “drastic
remedy,” appropriate only when defense counsel has “entangled
himself to an extraordinary degree.” Locascio, 6 F.3d at 934.
The extent of Rebollo’s entanglement in this case is minimal. Id.
His statement in Pina’s motion to dismiss is more analogous to the
DOJ memorandum in Diozzi. Both statements were made by defense
counsel, admitted into evidence, but did not implicate the
credibility of defense counsel.
The Court emphasizes that neither Pina nor the
United States moved for disqualification. See Purgess, 33 F.3d at
31 (affirming the admission of defense counsel’s statement, noting
that counsel “did not herself move for disqualification” but now
“seeks to blame the trial judge for not having her thrown off the
case.”). The admission of Rebollo’s statement and the purported
failure to disqualify, thus, do not raise substantial questions of
law.
B. Reference to the Money Laundering Investigation
Pina maintains that the United States cited facts not in
evidence, suggesting that Pina engaged in money laundering.
(Docket No. 271 at p. 30.) In his rebuttal argument, AUSA Ruiz
remarked that:
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It’s nice, right, if you have illegal weapons in your

house, but the house belongs to somebody else that you
can blame. Right. Oh, that’s Omar’s. But the thing is
Pina wasn’t counting that he was being recorded. The
money laundering unit was investigating Pina, and then
he says all this about his weapons. He wasn’t counting
on that.
(Docket No. 267 at p. 110.) Pina’s argument is meritless for two
reasons.
First, evidence adduced at trial established that law
enforcement agents conducted a money laundering investigation, and
that this investigation resulted in the interception of Call 121.
FBI agent Todd Alexander Gaines (“Gaines”) testified on direct
examination that he belongs to the “Money Laundering Facilitation
Squad here in San Juan.” (Docket No. 235 at p. 6.) As a member
of this squad, Gaines investigates “potential crimes regarding
money laundering allegations with a nexus to Puerto Rico.” Id. at
p. 7. He executed the search warrant for Pina’s residence in
Caguas Real. Id. at p. 8. Defense counsel did not object to this
testimony. Rebollo did cross-examin FBI special agent José
Rosario-Cortés (“Rosario”), soliciting the same information the
Pina now argues is overly prejudicial. The following exchange
occurred on the sixth day of trial:
Rebollo: All right, Agent, you told us yesterday that

you were a member of the FBI San Juan office
money laundering unit; is that correct?
Rosario: Yes.
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Rebollo: And that – that it was that unit which was

conducting the investigation, which
ultimately resulted in the filing of the
charges which happens in court here today?
Rosario: Yes.
Rebollo: You were working with other agents from this

unit, typically all members of the unit
collaborate with each other, right?
Rosario: Yes, sir.
(Docket No. 263 at p. 7.)
Second, a recorded conversation between Pina and Romero
suggests that the former engaged in a money laundering venture.
Pina stated that he “had 2 million in an account.” See Trial
Ex. 77. Romero claimed that these funds are “free of dust and
straw,” a “colloquial phrase typically used to describe money that
has been laundered” and for which no taxes have been paid. Id.;
see Docket No. 285 at p. 10. Furthermore, FBI agents seized
$135,794 in United States currency and 10,000 Euros from Pina’s
safe. (Docket No. 235 at p 58.) Accordingly, reference to money
laundering in Ruiz’s rebuttal does not present a substantial
question of law.
C. The Testimony of Jordan Millmam
Pina called Jordan Millman (“Millman”) to testify at
trial. Millman is a realtor based in Florida. (Docket No. 263 at
p. 46.) According to Millman, Pina rented an apartment in Miami

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in 2010. Id. The United States raised a relevance objection
during direct examination. Id. at p. 51. Pina informed the Court
at sidebar that this witness would testify that “[he] has been
residing in Miami, and [has] been involved with different lease
transactions.” Id. The United States argued, however, that “the
fact that he has assets and multiple properties doesn’t mean that
he has less control over them.” Id. at p. 53. The Court sustained
the United States’ objection, excused Millman from the witness
stand, and instructed the jury to disregard his testimony. Id. at
pp. 53—58. Pina’s and Romero discussed the objects inside the
Caguas Real home, including the weapons and ammunition,
demonstrating his familiarity with this property. A
representative from the Gesco Alarm Company testified that Pina
purchased a security system for the Caguas Real home. (Docket No.
263 at p. 71.) The security system allowed Pina to restrict access
to the property. Id. This evidence establishes that Pina
controlled this Caguas Real home.
This Court possesses “considerable discretion in
determining the relevancy of evidence, and this discretion must be
respected absent abuse.” United States v. Butt, 995 F.2d 77, 81
(1992); United States v. Maldonado-García, 446 F.3d 227, 231-32
(1st Cir. 2006) (“A district court’s decision to admit or exclude
evidence is ordinarily reviewed for abuse of discretion . . . As

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part of this discretion, district courts enjoy wide latitude in
passing upon the relevancy of evidence.”). Relevant evidence is
“evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.”
Fed.R.Evid. 401. Irrelevant evidence is inadmissible.
Fed.R.Evid. 402.
The United States alleged that Pina had constructive
possession of the firearms and ammunition. Constructive
possession “is shown by proving that the defendant had ‘dominion
and control’ over the area where the contraband was found.” United
States v. Padilla-Galarza, 885 F.3d 1, 5 (1st Cir. 2018); United
States v. Maldonado, 23 F.3d 4, 7 (1st Cir. 1994) (“‘Constructive’
possession is commonly defined as the power and intention to
exercise control, or dominion and control, over an object not in
one’s ‘actual’ possession.”). The Court rejected Pina’s
contention that “the more places or residences he divides his time
among, the less control he can have over here in Puerto Rico.”
(Docket No. 263 at p. 54.) Leasing an apartment in Miami and
exercising dominion over the Caguas Real residence are not mutually
exclusive. Consequently, Pina’s final argument in support of his
motion for bond pending appeal is futile.

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D. The Errors Allegedly Committed by the Court, to the

Extent they are Errors at all, are Harmless
Pina’s conviction is supported by ample evidence. They
jury heard Call 121, a devastating piece of evidence. Pina told
Romero: “I have money and I have all sorts of things in [the
safe]; my guns, rifles, bullets.” See Docket No. 98 at p. 4;
Docket No. 114, Ex. 2 at pp. 11-13 (emphasis added). FBI agents
seized firearms and ammunition from the safe at the Caguas Real
residence, corroborating the credibility of Pina’s statements in
Call 121. Law enforcement officers recovered Pina’s fingerprint
from a box of ammunition. (Docket No. 241.) At most, the admission
of Rebollo’s statement, reference to the FBI money laundering unit,
and the exclusion of Millman’s testimony are harmless because the
evidence against Pina is overwhelming. See United States v. Casas,
256 F.3d 104, 121 (1st Cir. 2004) (“The admission of improper
testimony is harmless if it is highly probable that the error did
not influence the verdict.”); United States v. Serrano-Acevedo,
892 F.3d 454, 462 (1st Cir. 2018) (“Given the strength of [the
evidence], it is highly probable that the alleged errors did not
affect the outcome of the trial”).

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IV. Conclusion
For the reasons set forth above, Pina’s motion for bail
pending appeal is DENIED. (Docket No. 271.)
IT IS SO ORDERED.
San Juan, Puerto Rico, May 24, 2022.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
SENIOR UNITED STATES DISTRICT JUDGE

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Case: 22-1421 Document: 00117881326 Page: 1 Date Filed: 05/27/2022 Entry ID: 6498507

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA

MOTION OF DEFENDANT-APPELLANT RAFAEL PINA-NIEVES FOR

Defendant-Appellant Rafael Pina-Nieves hereby moves, pursuant to 18 U.S.C.

his favor, will likely result in a new trial.

Trial of this case was rendered fundamentally unfair by a number of grave

admitted, as consciousness of guilt evidence, a sentence extracted from a pretrial

statement was, accordingly, double hearsay and not admissible as an admission of a

party-opponent under Rules 801(d)(2)(C), (D). Its admission, and government’s

reliance on it as substantive evidence of Pina-Nieves’ guilt, deprived Pina-Nieves of

statements in criminal context to avoid infringing defendant's right against

self-incrimination, the right to counsel of the defendant’s choice [i.e., insofar as

irremediably tainted the fairness of Pina-Nieves’ trial and cannot, therefore, be

presented in this appeal.

present a complete defense by the court’s exclusion, on the ground of relevance, of

Rico. Its exclusion was prejudicial error.

On August 13, 2020, Pina-Nieves, a successful businessman and music

promoter, was charged in a two-count indictment with being a felon in possession of

a firearm and ammunition, 18 U.S.C. §922(g)(1),1 and possession of a machine gun,

the result of an intercepted conversation during which Pina-Nieves mentioned the

presence of weapons in the house. The government presented no evidence of when

Pina-Nieves’ defense focused on demonstrating his lack of knowledge and intention

he lived primarily in Miami.

court, over the government’s objection, permitted Pina-Nieves to remain on release

of 41 months. He is currently incarcerated.

II. THE STANDARD FOR GRATING RELEASE PENDING APPEAL.

Under 18 U.S.C. §3143(b)(1)(B), a court considering a defendant’s request for

question is determined favorably to defendant on appeal, that decision is likely to

the other way.” Id. at 523.

Under 18 U.S.C. §3143(b)(1)(B), a court considering a defendant’s request for

question is determined favorably to defendant on appeal, that decision is likely to

appeal amply satisfy this standard.

III. PINA-NIEVES DOES NOT POSE ANY FLIGHT OR SAFETY RISK.

conditions of his release, to home confinement and electronic monitoring pending

of flight if he is permitted to remain on release pending appeal. Indeed, the district

release pending appeal.

IV. THIS APPEAL WILL RAISE SUBSTANTIAL ISSUES WHICH, IF

A. The Court Erroneously Admitted a Sentence From a Pleading

submitted by Pina-Nieves’ primary trial counsel was admissible against Pina-Nieves

as a statement of a party-opponent, i.e., defendant Pina-Nieves, under Fed. R. Evid.

made by Pina-Nieves’ counsel. Instead, it was a reference by counsel, in the context

of arguing prejudice to the defendant, to information reportedly received by the

by the Sixth Amendment to the United States Constitution.

Shortly before trial, the defense, based on just-received discovery, moved to

had provided to the government:

[O]n October 2, 2020, the government informant . . . informed case

of the informant’s information had prejudiced Pina-Nieves, counsel made the

advantage to have in plea negotiations.” Id. This statement was followed by

additional argument regarding the prejudice to Pina-Nieves from the government’s

receipt of this informant information.

admission by Pina-Nieves, as it directly follows portions of the motion relating to the

prejudicial to Pina-Nieves’ interests. Had counsel simply added the word

the quoted statement as evidence of Pina-Nieves’ consciousness of guilt under Rules

prosecution and profoundly burden his credibility in making any arguments

supportive of his client’s innocence, thus depriving Pina-Nieves of his right to an

effective advocate in his defense.

Replying to the government’s notice, the defense contended:

Demizio, 2009 WL 2163099 at 3-4 (E.D.N.Y. July 20, 2009)(statement in