2. Background and Procedural History
Brandao, an American citizen, faced criminal proceedings in Cape Verde, including two homicide charges. Those charges remained pending and had not been tried. Cape Verdean authorities possessed his American passport, Cape Verdean passport, and identification card.
After approximately sixteen months in pretrial detention, Brandao was released on December 12, 2022, because of a defect in notification of his indictment. That ruling did not dismiss the charges. The Cape Verdean court expressly identified a flight risk and prohibited him from leaving the country.
About two weeks later, Brandao appeared at the United States Embassy in Dakar, Senegal. In communications with the embassy, an interview, and his temporary passport application, he said that he had lost his American passport while dining in Dakar on December 25. The embassy issued a temporary passport on December 28, which he used to return to the United States.
At trial, the government introduced Cape Verdean records documenting the transfer of Brandao’s identification documents from the judiciary police to the clerk of court and then to the prosecutor’s office. Diplomatic Security Service Special Agent John Pigman testified that he saw and photographed the documents at that office in May 2023. A later inspection revealed no passport stamps reflecting entry into Senegal after Brandao’s release.
Before trial, Brandao sought to exclude references to the homicide charges. Alternatively, he proposed describing them simply as pending criminal charges. The district court permitted references to serious offenses, including two homicides, and their potential penalties, but excluded the underlying allegations and identification of other charged offenses. The resulting stipulation informed the jury that a homicide conviction carried fifteen to thirty years’ imprisonment.
Brandao also requested a voir dire question asking whether the involvement of foreign murder charges would affect prospective jurors’ impartiality. The court did not ask that question or otherwise explain the homicide evidence to the full venire. One prospective juror independently disclosed a personal connection to a murder and was excused, but the eventual jurors first learned about Brandao’s homicide charges during the government’s opening statement.
Finally, Brandao requested a missing witness instruction concerning the absence of a Cape Verdean official who could address the passport’s custody. The government explained that Cape Verde had rejected its diplomatic request for such a witness. The district court denied the instruction and prohibited an argument faulting the government for failing to produce that unavailable official.
Because Brandao did not challenge evidentiary sufficiency on appeal, the First Circuit narrated the facts objectively rather than exclusively in the prosecution’s favor, following United States v. Rodriguez, 115 F.4th 24, 33 (1st Cir. 2024).
4. Analysis: Legal Reasoning and Precedents Cited
A. Missing Witnesses: Cooperation Does Not Establish Availability
A missing witness instruction permits, but does not compel, an unfavorable inference from a party’s failure to produce an available witness. Its justification depends on circumstances making the absence meaningfully attributable to that party. It does not arise merely because an additional witness might have strengthened the prosecution’s proof.
The governing framework
United States v. Orlandella, 96 F.4th 71 (1st Cir. 2024), supplied both the abuse-of-discretion standard and the governing entitlement test. Drawing on United States v. DeLuca, 137 F.3d 24 (1st Cir. 1998), the court asked whether the witness was favorably disposed toward the government because of status or relationship, or peculiarly available to it through exclusive control or comparable access.
United States v. Perez, 299 F.3d 1 (1st Cir. 2002), explained the instruction’s adverse-inference function and required consideration of the explanation for the witness’s absence and whether the expected testimony would be relevant and noncumulative. Together, these authorities make the inquiry practical rather than automatic.
Foreign location and unsuccessful diplomatic efforts
United States v. Aboshady, 951 F.3d 1 (1st Cir. 2020), and United States v. Theresius Filippi, 918 F.2d 244 (1st Cir. 1990), established that foreign witnesses of the kind involved here, located abroad, were beyond the parties’ subpoena power. Once Cape Verde rejected the diplomatic request, the prosecution generally had no means of compelling the official’s attendance.
Two additional decisions reinforced this conclusion. United States v. Anderson, 452 F.3d 66 (1st Cir. 2006), treated a witness’s refusal to comply with a subpoena as conclusive evidence that the witness was not available to the government. United States v. DeLuca likewise upheld denial of an instruction where a witness made himself unavailable to both sides.
Under United States v. Pagán-Santini, 451 F.3d 258 (1st Cir. 2006), the relevant question was whether the prosecution possessed special access or leverage. Prior cooperation in supplying documents did not establish that leverage over a foreign government’s decision to provide a live witness.
Brandao’s alternative argument—that a Cape Verdean official would naturally favor the prosecution—failed under United States v. Spinosa, 982 F.2d 620 (1st Cir. 1992). The favorable-disposition branch concerns uncalled but physically available witnesses. Moreover, even a close governmental relationship does not automatically establish that a witness would refuse to cooperate with the defense.
Limits on closing argument
United States v. Jiménez-Torres, 435 F.3d 3 (1st Cir. 2006), and United States v. Diaz-Diaz, 433 F.3d 128 (1st Cir. 2005), recognized circumstances in which a defendant may identify an absent witness while challenging evidentiary sufficiency. The First Circuit distinguished those cases because the witnesses there were available through subpoena to both parties.
Here, the official was unavailable to both sides despite good-faith governmental efforts. United States v. Aboshady had approved a curative instruction directing jurors not to infer anything from a comparable foreign witness’s absence. Preventing the unsupported argument beforehand avoided the need for that correction.
Importantly, the restriction did not prevent Brandao from challenging the actual proof. He could—and did—argue that the documents left unanswered questions about continuous passport custody. The distinction was between criticizing evidentiary gaps and inviting an adverse inference from an absence the prosecution could not remedy.
The unchallenged explanation
Brandao argued on appeal that the government should have produced evidence substantiating Cape Verde’s refusal. Applying Vázquez-Rivera v. Figueroa, 759 F.3d 44 (1st Cir. 2014), the court treated that objection as waived because it was not raised below. It also relied on United States v. Aboshady for the district court’s discretion to accept the prosecution’s explanation.
This reasoning is tied to the unchallenged proffer and the circumstances presented. It does not establish that any assertion of foreign-witness unavailability must always be accepted without scrutiny.
B. Voir Dire: General Questions Require Meaningful Context
Preservation remained unresolved
Federal Rule of Criminal Procedure 51(b) permits preservation by informing the court of the action requested, but ordinarily requires a timely objection. Holguin-Hernandez v. United States, 589 U.S. 169 (2020), supported the proposition that requesting a particular action can alert the court to disagreement with the opposite ruling. Puckett v. United States, 556 U.S. 129 (2009), emphasized timeliness.
The countervailing authorities were United States v. Casanova, 886 F.3d 55 (1st Cir. 2018), and United States v. Figueroa-Cartagena, 612 F.3d 69 (1st Cir. 2010), requiring contemporaneous objections to voir dire procedures. United States v. Meader, 118 F.3d 876 (1st Cir. 1997), and United States v. Urian, 858 F.2d 124 (3d Cir. 1988), further showed that submitting proposed questions does not invariably preserve an objection when counsel later acquiesces in the questioning actually conducted.
Nevertheless, United States v. Teixeira, 62 F.4th 10 (1st Cir. 2023), recognizes an exception when counsel lacks a fair opportunity to object. Here, the district court neither explicitly ruled on Brandao’s proposed question nor circulated its questions in advance. Although counsel apparently could have objected after hearing them, the procedural uncertainty made preservation a close issue.
Following the approach reflected in United States v. Delgado-Marrero, 744 F.3d 167 (1st Cir. 2014), the court assumed preservation because harmlessness resolved the appeal. It also identified a useful preventive practice, citing United States v. Ortiz-Colón, 178 F.4th 1 (1st Cir. 2026): invite counsel to request additional questions after the court finishes its inquiry.
Discretion is bounded by fairness
United States v. Delgado-Marrero and United States v. Misla-Aldarondo, 478 F.3d 52 (1st Cir. 2007), established that broad discretion over jury selection remains subject to the essential demands of fairness. Under Real v. Hogan, 828 F.2d 58 (1st Cir. 1987), judges need not adopt counsel’s exact wording or ask every requested question.
That flexibility has limits. United States v. Anagnos, 853 F.2d 1 (1st Cir. 1988), recognized a small class of fundamental inquiries to which a party is entitled. Aldridge v. United States, 283 U.S. 308 (1931), supplied the underlying concern: questioning must address material prejudice capable of obstructing an impartial verdict.
The central analogy: gang-related prejudice
The principal persuasive authority was United States v. Nieves, 58 F.4th 623 (2d Cir. 2023). There, a court failed to explore gang-related prejudice despite knowing that gang evidence would be central to the trial. An isolated juror’s disclosure at sidebar did not replace inquiry directed to the broader venire.
The parallel was substantial. The district court knew before trial that homicide charges would anchor the prosecution’s motive theory. Their emotional potential was illustrated when one prospective juror admitted difficulty remaining unaffected by murder-related evidence. Yet no inquiry enabled the remaining prospective jurors to identify similar reactions.
United States v. Barnes, 604 F.2d 121 (2d Cir. 1979), quoted through United States v. Nieves, supported the concern that strong feelings about a central trial subject can distort deliberations. By contrast, United States v. Delgado-Marrero involved subjects not adequately brought to the trial court’s attention or yet established as issues. Brandao’s case involved known, certain-to-appear evidence.
Specific wording was unnecessary; informative screening was essential
The court identified two permissible approaches: ask a question resembling Brandao’s proposal, or provide enough factual context that prospective jurors could recognize relevant biases and respond to broader questioning.
Ristaino v. Ross, 424 U.S. 589 (1976), supported flexibility rather than a mandatory script. United States v. Bates, 590 F. App’x 882 (11th Cir. 2014), illustrated why general impartiality questions may be inadequate when jurors do not know that a potentially prejudicial subject will arise.
Asking whether prospective jurors or relatives had faced criminal investigation did not reveal a general prejudice against people accused of homicide. Nor could the government’s opening statement repair the omission: by then, counsel could no longer use the information to exercise jury challenges.
Finally, United States v. Mensah, 110 F.4th 510 (2d Cir. 2024), supported construing the ruling narrowly as an extreme case. The error arose from the combination of foreseeably inflammatory evidence, advance judicial knowledge, and the absence of any adequate contextual screening—not from a general requirement to question jurors about every potentially unfavorable fact.
C. Rule 403: The Relevant Comparison Was Homicide Labels Versus Sentencing Exposure
A permissible evidentiary purpose does not establish admissibility
Brandao did not pursue his Rule 404(b) objection on appeal. The court therefore accepted, for purposes of review, the district court’s determination that the charges bore on knowledge, willfulness, and motive.
That did not resolve Rule 403. As explained in United States v. Varoudakis, 233 F.3d 113 (1st Cir. 2000), evidence offered for a legitimate nonpropensity purpose must still survive the separate balance between probative value and unfair prejudice. United States v. Cadden, 965 F.3d 1 (1st Cir. 2020), supplied the abuse-of-discretion standard for this preserved evidentiary challenge.
Evidentiary alternatives reduced the homicide labels’ incremental value
Old Chief v. United States, 519 U.S. 172 (1997), provided the central analytical method: Rule 403 probative value may be assessed by comparing available means of proving the same proposition. The court therefore did not ask merely whether homicide charges were relevant. It asked what identifying the crimes as homicides added beyond less inflammatory proof.
The answer was very little. Evidence that Brandao faced fifteen to thirty years’ imprisonment adequately explained why he might flee and falsely claim to have lost his passport. The government identified no reason why a homicide sentence would create a stronger incentive to escape than an equally lengthy sentence for another serious offense.
United States v. Earls, 704 F.3d 466 (7th Cir. 2012), supplied a particularly useful comparison. It approved evidence of substantial sentencing exposure as proof of flight motive without identifying the underlying child sexual assault charges. United States v. Gilbert, 229 F.3d 15 (1st Cir. 2000), supported characterizing the additional value of the homicide labels as marginal.
United States v. Varoudakis reinforced the importance of prosecutorial need: where other evidence establishes the same point, highly prejudicial additional proof becomes harder to justify. The concurrence also invoked Wright & Miller’s Federal Practice and Procedure to explain that the abundance of alternative proof affects the value of any particular item.
The court expressly preserved room for different outcomes. United States v. Johnson, 996 F.2d 306 (5th Cir. 1993), involved deserter status bearing on motive to obtain a false passport. United States v. Zamora-Sanchez, 959 F.2d 243, 1992 WL 69324 (9th Cir. 1992), an unpublished decision, involved prior unlawful entry supplying a motive for passport-related misrepresentation. These examples showed that the nature of an underlying act may sometimes have independent explanatory significance.
The danger was punishment for unrelated allegations
Under Old Chief v. United States, unfair prejudice includes the risk that jurors will convict on a ground other than proof of the charged offense. Here, the principal danger was not simply an inference that a person accused of homicide is more likely to lie. Jurors might regard Brandao as generally deserving punishment or use the passport prosecution to punish him for the untried homicides.
United States v. Perez-Cubertier, 958 F.3d 81 (1st Cir. 2020), explained how shocking or heinous evidence can provoke an improper emotional verdict. It also acknowledged that omitting underlying details can reduce prejudice. The district court’s restrictions therefore mattered, but they did not eliminate the emotional force of two homicide accusations.
The court drew comparisons to emotionally charged evidence addressed in United States v. Sabean, 885 F.3d 27 (1st Cir. 2018), involving incestuous abuse of a child; United States v. Mehanna, 735 F.3d 32 (1st Cir. 2013), involving terrorism; and United States v. Hands, 184 F.3d 1322 (11th Cir. 1999), involving domestic violence. These authorities illustrated the danger of emotional spillover, particularly when the charged offense itself—false statements on a form—is markedly less inflammatory.
The majority considered the absence of meaningful voir dire an aggravating circumstance. It also questioned the prosecution’s statement that Brandao sought to “avoid justice” for two murder charges. Although potentially referring only to avoiding trial, that wording could suggest that conviction in Cape Verde was deserved or inevitable. The court did not treat this remark as a separately resolved prosecutorial-misconduct claim.
The limiting instruction addressed the wrong danger too narrowly
United States v. García-Sierra, 994 F.3d 17 (1st Cir. 2021), required limiting instructions tailored to the actual prejudice presented. The instruction here prohibited character-based propensity reasoning and confined the evidence to motive and intent. It did not adequately address the distinct danger that jurors would punish Brandao for the homicide allegations themselves.
United States v. Trenkler, 61 F.3d 45 (1st Cir. 1995), illustrated a broader instruction addressing both propensity reasoning and conviction merely because the defendant was considered a bad person. The comparison showed why conventional wording was insufficiently protective here.
The resulting holding was contextual: the homicide labels should have been excluded because their marginal additional value was substantially outweighed by unfair prejudice. Evidence of serious charges and substantial sentencing exposure remained permissible. The court did not declare all references to foreign criminal proceedings inadmissible.
D. Harmless Error: Strong Proof Preserved the Conviction
Two potentially different standards
The parties agreed that the Rule 403 error was nonconstitutional. Under United States v. Kilmartin, 944 F.3d 315 (1st Cir. 2019), reversal was unnecessary if it was highly probable that the error did not contribute to the verdict.
The voir dire issue was more difficult. Chapman v. California, 386 U.S. 18 (1967), requires constitutional trial error to be harmless beyond a reasonable doubt. But an erroneous voir dire ruling does not automatically have constitutional status.
Mu’Min v. Virginia, 500 U.S. 415 (1991), and Ristaino v. Ross explain that a potentially helpful question is constitutionally required only under circumstances implicating fundamental trial fairness. Ham v. South Carolina, 409 U.S. 524 (1973), illustrated the distinction: the circumstances required questioning about racial prejudice, but not about prejudice against beards.
The court surveyed decisions declining to constitutionalize various omitted case-specific inquiries: Beuke v. Houk, 537 F.3d 618 (6th Cir. 2008), concerning prospective jurors’ reasons for serving; Campos v. Peters, 37 F.3d 1501 (7th Cir. 1994), an unpublished decision concerning pregnancy in a prosecution involving a pregnant victim; United States v. Greer, 968 F.2d 433 (5th Cir. 1992), concerning religion in a skinhead prosecution; and Jacobs v. Redman, 616 F.2d 1251 (3d Cir. 1980), concerning jurors’ experiences as crime victims.
Conversely, United States v. Bates applied constitutional harmless-error review to omitted questioning about sexual-orientation prejudice. This collection demonstrated uncertainty, not a settled constitutional classification of Brandao’s claim.
Following United States v. Pridgen, 518 F.3d 87 (1st Cir. 2008), and United States v. Jadlowe, 628 F.3d 1 (1st Cir. 2010), the court bypassed the classification question and applied the stricter standard. It did not hold that the error was constitutional or structural.
Why the errors did not affect this verdict
United States v. Pullman, 139 F.4th 35 (1st Cir. 2025), supplied the operative inquiry: whether it appeared beyond a reasonable doubt that the error did not contribute to the verdict. The First Circuit found that standard satisfied by the unusually strong custody evidence.
- Release records prohibited Brandao from leaving Cape Verde.
- Official documents traced his passports and identification through governmental custody to the prosecutor’s office.
- Agent Pigman later found the documents exactly where those records indicated they should be.
- The passports contained no relevant Senegalese entry stamps.
Brandao suggested that his documents had been returned to him, lost in Dakar, found by someone else, and ultimately returned to Cape Verdean prosecutors. The court regarded that sequence as conjectural and inconsistent with the documentary trail. The records’ references to returning documents concerned transfers within the authorities, not a demonstrated return to Brandao.
United States v. Carpenter, 403 F.3d 9 (1st Cir. 2005), supported the conclusion that, once the jury credited the government’s essentially undiscredited documentary account, the inflammatory motive evidence was comparatively irrelevant to the decisive factual issue.
Finally, United States v. Green, 698 F.3d 48 (1st Cir. 2012), confirmed that satisfying the constitutional harmless-error standard also satisfies the more lenient nonconstitutional standard.
The reasoning was not merely that enough evidence supported conviction. The court concluded that the identified errors did not contribute to this verdict beyond a reasonable doubt. That distinction preserves the difference between evidentiary sufficiency and harmless-error review.
5. Judge Lipez’s Concurrence: Voir Dire Cannot Rescue Unnecessary Evidence
Judge Lipez agreed with the affirmance and with the conclusion that admitting the homicide labels violated Rule 403. His disagreement concerned the majority’s treatment of inadequate voir dire as increasing the evidence’s unfair prejudice.
In his view, proper voir dire would not have reduced the fundamental unfairness of introducing unnecessary, highly inflammatory allegations. His objection should not be read as a claim that the majority expressly authorized voir dire to cure inadmissibility. Rather, he resisted treating screening as a factor that could move the Rule 403 balance toward admission.
A. Prosecutors must exercise independent restraint
Strickler v. Greene, 527 U.S. 263 (1999), and Berger v. United States, 295 U.S. 78 (1935), supplied the concurrence’s central institutional principle: prosecutors serve justice rather than merely seeking victory.
United States v. Kilmartin, quoting United States v. Frankhauser, 80 F.3d 641 (1st Cir. 1996), warned against prosecutorial “overkill.” Judge Lipez applied that warning to the government’s effort to introduce the homicide charges and other inflammatory charges despite adequate sentencing evidence.
United States v. Ross, 171 F.4th 522 (1st Cir. 2026), quoting United States v. Morales-Aldahondo, 524 F.3d 115 (1st Cir. 2008), clarified that evidence is ordinarily prejudicial to someone; Rule 403 targets unfair prejudice. The vice here was not that motive evidence harmed the defense, but that the government sought unnecessary emotional force beyond what establishing motive required.
The concurrence thus assigned responsibility to both institutions: judges must police admissibility, but prosecutors should not push the boundary on the assumption that the judge will prevent excess.
B. Jurors cannot always identify their own biases
Sampson v. United States, 724 F.3d 150 (1st Cir. 2013), recognized that jurors may not appreciate their biases or may hesitate to acknowledge them. Justice O’Connor’s concurrence in Smith v. Phillips, 455 U.S. 209 (1982), similarly described the difficulty of discovering concealed or unconscious prejudice. Crawford v. United States, 212 U.S. 183 (1909), emphasized bias’s elusive character.
Judge Lipez also cited Nancy S. Marder’s article, “Juror Bias, Voir Dire, and the Judge-Jury Relationship,” to explain the limitations of asking prospective jurors to diagnose their own impartiality publicly and immediately.
C. The warning drawn from a divided Seventh Circuit decision
In United States v. Hoffman, 806 F.2d 703 (7th Cir. 1986), the majority treated extensive voir dire as effectively eliminating prejudice from evidence of controversial religious affiliation. Judge Will’s dissent warned that such reasoning could allow advocates to neutralize Rule 403 objections through jury questioning.
Judge Lipez invoked that dissent’s concern, not the majority’s approach, as persuasive support. Allowing voir dire to justify otherwise unfairly prejudicial evidence could incentivize prosecutors to seek admission first and offer screening as a workaround.
His position remained case-specific. He expressly disclaimed a categorical rule against using murder charges to establish motive. The essential question was whether their identification was genuinely needed; here, it was not.