Triple Waiver and No-Prejudice Variance: The First Circuit’s Reinforcement of Preservation Rules in United States v. Paredes

Introduction

This commentary analyzes the First Circuit’s unpublished decision in United States v. Paredes (No. 23-1948, Oct. 24, 2025), affirming the conviction of Adiangel Paredes for conspiracy to distribute and possess with intent to distribute multiple controlled substances—heroin, fentanyl, and cocaine—under 21 U.S.C. § 846. The case arises out of an FBI-led Boston Strike Force investigation into a drug trafficking organization (DTO) operating in Fitchburg, Massachusetts, and involved wiretaps, confidential witnesses, and controlled purchases.

On appeal, Paredes advanced two principal claims: (1) the district court erred by allowing law enforcement officers to interpret the meaning of intercepted calls and text messages, and (2) there was a material variance between the indictment (which charged a single conspiracy encompassing heroin, fentanyl, and cocaine) and the trial evidence (which, he argued, showed multiple conspiracies). The First Circuit rejected both claims, holding that the evidentiary challenge was waived on multiple, independent grounds and that the variance claim failed for lack of any developed argument on prejudice—and, in any event, could not have prejudiced Paredes.

While designated “Not for Publication,” the opinion crystallizes two durable principles in First Circuit practice: (a) objections to interpretive law-enforcement testimony must be preserved with contemporaneous, record-specific objections—motions in limine do not suffice when the court reserves ruling—and failure to brief plain error or to cite the record with specificity results in waiver; and (b) a variance premised on multiple conspiracies warrants reversal only upon a showing of prejudice, which is ordinarily absent where the defendant himself participated in each conspiracy implicated by the proof.

Summary of the Opinion

The First Circuit (Judge Montecalvo, joined by Chief Judge Barron and Judge Howard) affirmed Paredes’s conviction. On the evidentiary issue, the court found the challenge “triply” waived: defense counsel withdrew an initial objection at trial after the court sought clarification; counsel thereafter failed to object contemporaneously to the officers’ interpretive testimony; and on appeal, Paredes neither articulated plain error nor supplied record-specific citations and developed argument showing why the testimony exceeded permissible lay opinion. On the variance issue, the court held that Paredes failed to argue prejudice and thus waived the claim; and even assuming a variance (single-conspiracy indictment, multiple-conspiracy proof), there was no prejudice where Paredes participated in the activities constituting each alleged conspiracy.

Detailed Analysis

Precedents Cited and Their Role

United States v. Mangual-Santiago, 562 F.3d 411 (1st Cir. 2009): Cited for two propositions: (i) the standard for reciting facts on appeal—view the record in the light most favorable to the verdict—and (ii) the variance framework, including the requirement that any variance be prejudicial to warrant reversal.
United States v. Sanchez-Badillo, 540 F.3d 24 (1st Cir. 2008): Reinforces viewing the facts favorably to the verdict.
United States v. Miranda-Carmona, 999 F.3d 762 (1st Cir. 2021) and United States v. Rivera-Ruperto, 846 F.3d 417 (1st Cir. 2017): Establish that a party cannot concede or withdraw an objection below and then repudiate that position on appeal.
United States v. Noah, 130 F.3d 490 (1st Cir. 1997): When a district court temporizes or reserves decision on a motion in limine, the objecting party must renew the objection during trial to preserve it; failure to do so forfeits the claim.
United States v. Concepcion-Guliam, 62 F.4th 26 (1st Cir. 2023) and United States v. Pérez-Greaux, 83 F.4th 1 (1st Cir. 2023): If evidence is admitted without objection, appellate review is for plain error; a party that fails to argue plain error waives the claim.
United States v. Martínez-Hernandez, 118 F.4th 72 (1st Cir. 2024) and United States v. Zannino, 895 F.2d 1 (1st Cir. 1990): Appellants must identify the specific statements challenged and supply developed argumentation; “bare-bones” briefing and lack of record citations result in waiver.
United States v. Yelaun, 541 F.3d 415 (1st Cir. 2008): Defines “variance” as proof at trial of facts different from those alleged, while the charge remains unaltered.
United States v. Walker-Couvertier, 860 F.3d 1 (1st Cir. 2017); United States v. Fenton, 367 F.3d 14 (1st Cir. 2004); United States v. Mena-Robles, 4 F.3d 1026 (1st Cir. 1993); and United States v. Boylan, 898 F.2d 230 (1st Cir. 1990): Provide the “pragmatic” single vs. multiple conspiracy analysis (common goal, interdependence, overlapping roles) and the standard of review on variance claims.
United States v. Wihbey, 75 F.3d 761 (1st Cir. 1996) and United States v. Sutherland, 929 F.2d 765 (1st Cir. 1991): Identify the three recognized forms of variance prejudice—lack of notice/surprise, double jeopardy risk, and evidentiary spillover.
United States v. Dunbar, 553 F.3d 48 (1st Cir. 2009): Clarifies that multiple-conspiracy evidence does not create prejudice where the defendant himself engaged in conduct attributable to each conspiracy; “multiple conspiracy is not a defense unless it creates reasonable doubt” about guilt on the charged conspiracy.

The Court’s Legal Reasoning

Issue 1: Law-enforcement “interpretation” testimony and preservation

The government introduced numerous intercepted calls and text messages and asked two agents—FBI Supervisory Special Agent Bradley Gullicksrud and Task Force Officer Michael Rumery—to explain what certain terms meant and what the communications were “talking about.” Defense counsel moved in limine to bar such interpretive testimony; the district court reserved ruling, announcing it would decide objections in context during trial.

When the government first sought to elicit interpretive testimony from Agent Gullicksrud, defense counsel objected, then withdrew the objection after a colloquy clarified the scope of testimony (“I don’t have the same objection… Apparently there’s not going to be [an issue].”). No contemporaneous objections followed as the government proceeded with similar questioning of both agents.

Against that backdrop, the First Circuit found the evidentiary challenge waived on three independent grounds:

Withdrawal of the objection and failure to renew contemporaneously: Having effectively conceded the point at trial and then failing to object to the ensuing testimony, Paredes could not reverse course on appeal. The court cited Miranda-Carmona and Rivera-Ruperto.
Failure to argue plain error: To the extent the lack of objections amounted to forfeiture rather than intentional waiver, appellate review would be for plain error. Paredes did not brief plain error. Under Concepcion-Guliam and Pérez-Greaux, that failure itself waives the claim.
Inadequate briefing and record support: Paredes did not identify which specific questions/answers were objectionable, nor did he explain how any particular testimony exceeded “permissible opinion testimony.” Under Martínez-Hernandez and Zannino, this lack of particularity and developed argumentation constitutes waiver.

Notably, because of waiver, the panel did not reach the merits question whether these agents’ interpretations of coded drug parlance qualified as admissible lay opinion under Federal Rule of Evidence 701 versus expert testimony under Rule 702. The opinion does, however, show the trial judge’s sensitivity to over-interpretation (“the call pretty much speaks for itself”) and reflects a case-specific calibration of what interpretive testimony would be permitted. Ultimately, the appellate disposition turns entirely on preservation, not admissibility.

Issue 2: Variance—single vs. multiple conspiracy and the necessity of prejudice

Paredes contended that the indictment charged a single conspiracy involving heroin, fentanyl, and cocaine, but the proof showed two conspiracies: (a) a DTO conspiracy (involving heroin/fentanyl) and (b) a separate cocaine conspiracy between Paredes and CW-5 (who also sold cocaine to Paredes). He argued that his cocaine dealings with CW-5 were not part of the DTO and that the government failed to prove he knew and agreed to a larger scheme.

The court began with settled variance doctrine: a variance occurs when the government proves facts at trial different from those alleged, while the charge remains the same. Even if a variance exists, it warrants reversal only if it prejudices the defendant’s substantial rights. The First Circuit takes a “pragmatic” view of single vs. multiple conspiracies, examining common goals, interdependence, and overlapping roles.

Paredes’s claim failed at the threshold because he did not develop any argument on prejudice—the “keystone issue”—and so waived the variance claim under Walker-Couvertier and Zannino. The court then added that, even without waiver, no prejudice existed under the rule in Mangual-Santiago and Dunbar: where the defendant himself engaged in the conduct constituting each alleged conspiracy, “evidentiary spillover” prejudice does not arise. Here, Paredes did not deny his role in both sets of activities, and he did not argue surprise, double-jeopardy risk, or non-cross-admissible spillover. Accordingly, the variance claim failed.

Potential Impact and Practice Implications

Although unpublished, Paredes forcefully reaffirms First Circuit preservation and waiver norms and will be cited for practical propositions at the intersection of trial practice and appellate review:

Motions in limine are not self-executing when the district court reserves ruling. Counsel must renew specific objections contemporaneously as evidence comes in. A withdrawn or “qualified” objection, followed by silence, is treated as waiver.
Appellants must precisely identify the challenged testimony, supply record citations, and articulate why the testimony violates a specific evidentiary rule (e.g., exceeding the scope of Rule 701 lay opinion, usurping the jury’s role, or failing Rule 403). Failure to brief plain error is independently fatal when trial objections were not made.
On variance, the First Circuit will insist on a developed prejudice analysis. Conclusory assertions of “multiple conspiracies” are insufficient; appellants must show concrete spillover, surprise, or double jeopardy implications. And where the defendant participated in each alleged conspiracy captured by the proof, the court presumes no prejudice.
For prosecutors, Paredes underscores the value of creating a clear preservation record: invite the court to clarify the scope of testimony, ask defense counsel to state objections with specificity, and, if appropriate, confirm withdrawals. On variance, prosecutors should emphasize cross-admissibility and the defendant’s own participation across the alleged conspiracies to defeat claims of spillover.
For district courts, Paredes validates case-by-case handling of interpretive testimony about coded language. The record here shows the trial judge tested the government’s proffer and permitted questioning within defined limits—an approach that, together with clear rulings, aids appellate review.

Complex Concepts Simplified

Waiver vs. forfeiture: Waiver is the intentional relinquishment of a known right (e.g., withdrawing an objection). Forfeiture is the failure to assert a right in a timely manner (e.g., not objecting at trial). Waived errors are unreviewable; forfeited errors are reviewed for plain error if properly briefed.
Plain error review: When no trial objection is made, an appellant must show (1) an error, (2) that is clear or obvious, (3) that affected substantial rights (usually outcome), and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings. Failure to argue this framework typically waives appellate review.
Motion in limine preservation: If the court tentatively denies or reserves a ruling on a motion in limine, counsel must renew a specific, contemporaneous objection at trial to preserve the issue for appeal.
Lay vs. expert opinion on coded language: Lay opinion (Rule 701) must be based on the witness’s firsthand perceptions and be helpful to the jury, without relying on specialized expertise. Expert testimony (Rule 702) draws on specialized knowledge and requires expert qualification and disclosure. Courts often treat agents’ interpretations of coded drug jargon as lay opinion when derived from their personal participation in the investigation; however, challenges must be preserved to obtain appellate review on that distinction.
Variance and multiple conspiracies: A “variance” arises when the indictment alleges one scheme but trial proof shows a different configuration (e.g., multiple conspiracies). Reversal requires prejudice—surprise at trial, double jeopardy risk, or evidentiary spillover that unfairly tars a defendant with evidence from another conspiracy in which he did not participate.
Evidentiary spillover: The risk that evidence admissible against some conspirators in one conspiracy improperly “spills over” to a defendant not involved in that conspiracy. Courts look for concrete signs of confusion or unfairness, such as non-cross-admissible, inflammatory evidence that could not be compartmentalized by the jury. If the defendant participated in each conspiracy, spillover prejudice is typically absent.
Quantity and foreseeability in drug conspiracies: To trigger certain statutory mandatory minimums under § 841(b), juries must find drug type/quantity that was reasonably foreseeable to, or attributable to, the defendant. In Paredes, the jury specifically found foreseeability of 400g+ fentanyl (10-year minimum) and 100g+ heroin (5-year minimum).

Conclusion

United States v. Paredes is a textbook reaffirmation of preservation doctrines and the prejudice requirement for variance claims in the First Circuit. On the evidentiary front, the opinion illustrates a “triple waiver” route to affirmance: withdrawal of an objection after an in limine colloquy, failure to object contemporaneously, and failure to brief plain error coupled with inadequate record-specific argument. On variance, the decision underscores that alleging multiple conspiracies is not self-executing; without a developed showing of prejudice—especially evidentiary spillover—reversal is unavailable, and where the defendant participated in each alleged conspiracy, prejudice is generally foreclosed.

Beyond its immediate disposition, Paredes offers practical guidance. Defense counsel must preserve evidentiary objections meticulously when courts reserve ruling on motions in limine and must brief plain error where contemporaneous objections were not made. Prosecutors should develop a clean record delimiting the scope of interpretive testimony and highlighting the defendant’s participation across the charged conduct to blunt variance claims. District courts can continue to manage coded-language testimony in a tailored, contextual way, confident that preservation and briefing failures will control on appeal.

Key takeaway: No relief without preservation. Paredes crystallizes that in the First Circuit, objections must be timely, specific, and fully briefed—and variance arguments must focus on concrete prejudice, not labels. The decision is a practical roadmap for trial and appellate strategy in complex drug-conspiracy prosecutions.