Petition for Writ of Certiorari — Louis D. Coleman, III, Petitioner v. United States

U.S. v. COLEMAN

Cite as 149 F.4th 1 (1st Cir. 2025)

UNITED STATES, Appellee,

v.

Louis D. COLEMAN III, Defendant,

Appellant.

Nos. 22-1882, 23-1315, 23-1322

United States Court of Appeals,

First Circuit.

July 21, 2025

Background: Defendant was convicted after jury trial in the United States District

Court for the District of Massachusetts, F.

Dennis Saylor IV, J., of kidnapping resulting in death, and was sentenced to life in

prison without possibility of parole. Defendant appealed.

Holdings: The Court of Appeals, Rikelman, Circuit Judge, held that:

(1) indictment adequately specified elements of offenses, fairly apprised defendant of charges, and allowed defendant to contest charges without fear of

double jeopardy;

(2) bill of particulars was not required in

order to ensure defendant would not be

precluded from preparing a defense;

(3) District Court’s decision to admit evidence that government relied on to

argue defendant kidnapped victim for

sexual gratification did not amount to

constructive amendment of indictment,

so as to violate Presentment Clause;

(4) probable cause was established to

search defendant’s cellphone, records

from his cellphone service provider,

his online account records, a laptop

and computer tower seized from his

vehicle, and vehicle information module;

(5) District Court did not abuse its discretion during voir dire by declining to

show all potential jurors one of two

educational videos about implicit bias

1

and, instead, orally addressing concepts

of implicit bias, fairness and listening

to the evidence;

(6) District Court did not abuse its discretion by allowing government and its

witnesses to use term ‘‘sexual assault’’

at trial;

(7) statements victim made to others about

her plans for the weekend she was

kidnapped, including statements to her

case worker at shelter where she lived

and to her daughter’s grandmother,

were ‘‘relevant’’ and, thus, were admissible;

(8) exclusion of evidence of victim’s prior

sexual conduct did not violate defendant’s Fifth and Sixth Amendment

rights to present complete defense;

(9) mistrial was not warranted on any alleged grounds; and

(10) evidence supported defendant’s conviction.

Affirmed.

1. Criminal Law O1144.13(2.1)

When a defendant challenges the sufficiency of the government’s evidence

against him or her, an appellate court recounts the relevant facts as presented at

trial in the light most favorable to the

jury’s verdict, consistent with record support.

2. Criminal Law O1144.1

In evaluating a criminal defendant’s

claims on appeal not involving challenge to

sufficiency of evidence, the Court of Appeals offers a balanced treatment, in which

it objectively views the evidence of record.

3. Criminal Law O1139

Court of Appeals reviews a challenge

to the sufficiency of an indictment de novo.

Appendix A

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2

149 FEDERAL REPORTER, 4th SERIES

4. Indictments and Charging Instruments O511, 541, 572(2)

Indictment is generally constitutionally adequate if it specifies elements of offense charged, fairly apprises defendant of

charge against which he must defend, and

allows him to contest it without fear of

double jeopardy; an indictment meets this

standard if it uses the statutory language

to describe the offense, so long as it also

includes enough facts and circumstances to

inform the accused of the specific offense

with which he or she is charged. U.S.

Const. Amend. 5.

5. Kidnapping O32

Indictment charging defendant with

kidnapping resulting in death adequately

specified elements of offenses, fairly apprised defendant of charges, and allowed

defendant to contest charges without fear

of double jeopardy, despite contention that

indictment left government free to pursue

any theory because it alleged defendant

‘‘seized, confined, inveigled, decoyed, kidnapped, abducted, or carried’’ victim away

during incident; it was permissible to list

each statutorily available method of kidnapping in the alternative in indictment.

U.S. Const. Amend. 5; 18 U.S.C.A.

§ 1201(a)(1).

6. Indictments and Charging Instruments O845

Where an indictment charges in the

conjunctive several means of violating a

statute, a conviction may be obtained on

proof of only one of the means.

7. Kidnapping O32

Indictment charging defendant with

kidnapping resulting in death adequately

specified elements of offenses, fairly apprised defendant of charges, and allowed

defendant to contest charges without fear

of double jeopardy, despite contention that

indictment omitted how or when defendant

‘‘held’’ victim involuntarily for an apprecia-

ble period; use of word ‘‘hold,’’ combined

with other facts about when and where

victim’s alleged kidnapping occurred, was

sufficient to apprise defendant of element

of offense. U.S. Const. Amend. 5; 18

U.S.C.A. § 1201(a)(1).

8. Indictments and Charging Instruments O514

What is fair description of crime in

indictment, for purposes of permitting adequate defense, necessarily varies with nature of offense and peculiarities of defending against kind of charge involved. U.S.

Const. Amend. 6.

9. Kidnapping O32

Indictment charging defendant with

kidnapping resulting in death adequately

specified elements of offenses, fairly apprised defendant of charges, and allowed

defendant to contest charges without fear

of double jeopardy, despite contention that

indictment omitted ‘‘purpose’’ for which

defendant kidnapped victim; indictment

faithfully tracked language of statute and

notified defendant not only of elements of

crimes charged, but also of relevant facts,

as it provided date of alleged kidnapping,

name of victim, and location. U.S. Const.

Amend. 5; 18 U.S.C.A. § 1201(a)(1).

10. Kidnapping O32

An indictment for kidnapping does not

need to state the alleged purpose of the

defendant with more specificity than the

statutory

language.

18

U.S.C.A.

§ 1201(a)(1).

11. Criminal Law O1149

Denial of bill of particulars is reviewed for abuse of discretion.

12. Indictments and Charging Instruments O634

When bills of particulars are pursued,

they need be granted only if the accused,

in the absence of a more detailed specifica-

Appendix A

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U.S. v. COLEMAN

Cite as 149 F.4th 1 (1st Cir. 2025)

tion, will be disabled from preparing a

defense, caught by unfair surprise at trial,

or hampered in seeking the shelter of the

Double Jeopardy Clause. U.S. Const.

Amend. 6.

13. Indictments and Charging Instruments O665

In prosecution for kidnapping resulting in death, bill of particulars was not

required in order to ensure defendant

would not be precluded from preparing a

defense, on basis that government had not

settled on theory of how kidnapping occurred, as it was permissible for government to charge alternative elements in

conjunctive. 18 U.S.C.A. § 1201(a)(1).

14. Indictments and Charging Instruments O665

In prosecution for kidnapping resulting in death, bill of particulars was not

required in order to ensure defendant

would not be unfairly surprised by testimony of medical examiner, who performed

autopsy on victim’s body, that victim was

alive when defendant carried her into his

apartment, as testimony was properly

struck by district court, thereby mitigating

any prejudice, and government stated at

trial it had also not expected testimony.

18 U.S.C.A. § 1201(a)(1).

15. Criminal Law O1139

Court of Appeals reviews constructive

amendment and prejudicial variance claims

de novo.

16. Indictments and Charging Instruments O1038

A ‘‘constructive amendment’’ occurs

when the government’s evidence or arguments or the court’s jury instructions alter

the terms of an indictment such that the

defendant is effectively charged with a dif-

3

ferent offense than the one returned by

the grand jury.

See publication Words and Phrases

for other judicial constructions and

definitions.

17. Criminal Law O1167(4)

A constructive amendment is considered prejudicial per se and grounds for

reversal of a conviction in part because it

violates a defendant’s rights under the

Presentment Clause. U.S. Const. Amend.

5.

18. Indictments and Charging Instruments O1038

When determining whether constructive amendment of indictment has occurred, court focuses on offense charged in

indictment, not particular theories of liability, and looks to statutory elements in

response to claims by defendants that

crime charged has been changed.

19. Indictments and Charging Instruments O1085

Decision of District Court, in prosecution for kidnapping resulting in death, to

admit evidence that government relied on

to argue defendant kidnapped victim for

sexual gratification did not amount to constructive amendment of indictment, so as

to violate Presentment Clause; defendant

was indicted for kidnapping victim and

causing her death on date certain in violation of statute, jury convicted him of that

same crime, admitted evidence concerned

element of that crime, the defendant’s purpose in kidnapping victim, and government

became more specific about its ‘‘purpose’’

theory both during discovery and at trial.

U.S. Const. Amend. 5; 18 U.S.C.A.

§ 1201(a)(1).

20. Indictments and Charging Instruments O841

A ‘‘variance’’ occurs when the government relies on different facts at trial than

Appendix A

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4

149 FEDERAL REPORTER, 4th SERIES

it alleged in the indictment to prove the

same offense.

See publication Words and Phrases

for other judicial constructions and

definitions.

21. Criminal Law O1167(1)

In contrast to a constructive amendment, a ‘‘variance’’ requires reversal only if

there is prejudice to a defendant’s substantial rights, that is, the right to have knowledge of the charge sufficient to prepare an

effective defense and avoid surprise at trial, and to prevent a second prosecution for

that same offense.

See publication Words and Phrases

for other judicial constructions and

definitions.

22. Criminal Law O1134.5

When determining whether government relied on different facts at trial than

alleged in indictment to prove same offense, so as to constitute variance, Court of

Appeals is foreclosed from reviewing the

sufficiency of evidence before grand jury.

23. Criminal Law O1167(1)

Even assuming variance existed between indictment charging defendant with

kidnapping resulting in death and facts

relied on by government to prove offense

at trial, defendant was not prejudiced by

variance so as to require preparation of

defense or to plead double jeopardy to

stop second prosecution for same crime;

defendant was aware well before trial that

government planned to introduce evidence

that he sexually assaulted victim, as topic

came up repeatedly in pretrial motions and

pretrial conferences with District Court,

and defendant’s well-developed arguments

at trial to introduce evidence to show any

sexual encounter was consensual demonstrated he was prepared for government’s

theory.

U.S. Const. Amend. 5; 18

U.S.C.A. § 1201(a)(1).

24. Criminal Law O1139

Court of Appeals reviews de novo district court’s legal conclusion about whether

given set of facts amounts to probable

cause for issuance of search warrant. U.S.

Const. Amend. 4.

25. Criminal Law O1144.1, 1158.2

In determining whether given set of

facts amounts to probable cause for issuance of search warrant, court views facts

in light most favorable to district court’s

ruling, but only to extent they are not

clearly erroneous. U.S. Const. Amend. 4.

26. Search, Seizure, and Arrest O795

In determining whether given set of

facts amounts to probable cause for issuance of search warrant, court considers

whether warrant application contains sufficient information to demonstrate probable

cause to believe: (1) crime has been committed, known as the ‘‘commission’’ element; and (2) enumerated evidence of offense will be found at place searched, the

so-called ‘‘nexus’’ element. U.S. Const.

Amend. 4.

27. Search, Seizure, and Arrest O561,

562

‘‘Probable cause’’ for a search exists

when the totality of the circumstances suggests that there is a fair probability that

the crime occurred and contraband or evidence of a crime will be found in a particular place. U.S. Const. Amend. 4.

See publication Words and Phrases

for other judicial constructions and

definitions.

28. Search, Seizure, and Arrest O561,

562

‘‘Fair probability’’ that contraband or

evidence of a crime will be found in a

particular place, as required to establish

probable cause for a search, is less than a

more-likely-than not standard, and always

Appendix A

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U.S. v. COLEMAN

Cite as 149 F.4th 1 (1st Cir. 2025)

entails a practical, common-sense decision.

U.S. Const. Amend. 4.

See publication Words and Phrases

for other judicial constructions and

definitions.

29. Search,

Seizure,

and

Arrest

O1901(2)

In analyzing whether probable cause

for a search exists, Court of Appeals accords deference to the reasonable inferences that the issuing judge may have

drawn. U.S. Const. Amend. 4.

30. Search, Seizure, and Arrest O803,

804, 1691

Sufficient information was set forth in

FBI special agent’s affidavit, submitted in

support of warrant application, to demonstrate fair probability that driver kidnapped victim and, thus, probable cause

was established to search his cellphone,

records from his cellphone service provider, his online account records, a laptop and

computer tower seized from his vehicle,

and vehicle information module; according

to affidavit, victim was alive when she entered vehicle but was dead or unconscious

two hours later when driver carried her

limp body out of vehicle, her face was

bruised, windshield was cracked on passenger side, and driver attributed an injury on his face to victim. U.S. Const.

Amend. 4.

31. Search, Seizure, and Arrest O803,

804, 1691

FBI special agents’ affidavits, submitted in support of warrant application,

established probable cause to believe evidence related to driver’s alleged kidnapping of victim would be found in computer tower, laptop, and cellphone recovered

from driver’s vehicle, as required for

search of his cellphone, records from his

cellphone service provider, his online account records, a laptop and computer

tower seized from his vehicle, and vehicle

5

information module; affidavit stated it was

likely items contained evidence of driver’s

planning and/or execution of kidnapping,

his plans to flee, and research about various means of cleaning, transporting and

disposing of human body and trace evidence, another affidavit stated it was likely cellphone would have evidence of driver’s daily activities and, more specifically,

was likely used to send or receive relevant emails and text messages, to set up

or access relevant websites, and/or communicate with witnesses, and each application was premised on fact driver was

fleeing his home with dead body and various items that could be used to dispose of

body and related evidence. U.S. Const.

Amend. 4.

32. Search, Seizure, and Arrest O413

Direct evidence is not necessary to

ground probable cause determination

where import of circumstantial evidence is

obvious. U.S. Const. Amend. 4.

33. Criminal Law O1152.2(2)

The Court of Appeals reviews the district court’s voir dire decisions for abuse of

discretion.

34. Criminal Law O1134.38

The Court of Appeals reverses a district court’s voir dire decisions only if its

review of the record leaves it with a definite and firm conviction that the court

below committed a clear error of judgment

in the conclusion it reached upon a weighing of the relevant factors.

35. Jury O131(13)

District Court did not abuse its discretion during voir dire by declining to show

all potential jurors one of two educational

videos about implicit bias and, instead,

orally addressing concepts of implicit bias,

fairness and listening to the evidence in

prosecution for kidnapping resulting in

death; court discussed importance of im-

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149 FEDERAL REPORTER, 4th SERIES

partiality with all prospective jurors, including the potential for racial prejudice, it

informed prospective jurors that defendant

and victim were African American and

stressed defendant had to be considered as

individual, not according to his ethnicity or

race, and after providing that context,

court asked prospective jurors if they had

any feelings of any kind that might affect

their ability in any way to be fair and

impartial in the trial. U.S. Const. Amend.

6; 18 U.S.C.A. § 1201(a)(1).

36. Jury O131(13)

District Court did not abuse its discretion during voir dire by declining to show

all potential jurors one of two educational

videos about implicit bias and, instead,

orally addressing concepts of implicit bias,

fairness and listening to the evidence in

prosecution for kidnapping resulting in

death, despite contention that Court’s

statements that videos were ‘‘distracting,’’

‘‘smug,’’ and ‘‘condescending’’ indicate such

an abuse; statements were taken out of

context, as court acknowledged the concepts underlying video were important but

decided to address them in a different

way, as after jury was empaneled, court

provided an instruction that demonstrated

its recognition of the reality of prejudice,

including prejudice ‘‘that we may not even

be conscious of.’’ U.S. Const. Amend. 6;

18 U.S.C.A. § 1201(a)(1).

37. Criminal Law O1153.1, 1153.15

Generally, the Court of Appeals reviews the district court’s rulings on whether to admit or exclude evidence, including

rulings on motions in limine, for abuse of

discretion.

38. Criminal Law O1153.1

An ‘‘abuse of discretion’’ occurs in connection with evidentiary ruling when a relevant factor deserving of significant weight

is overlooked, or when an improper factor

is accorded significant weight, or when the

court considers the appropriate mix of factors, but commits a palpable error of judgment in calibrating the decisional scales.

See publication Words and Phrases

for other judicial constructions and

definitions.

39. Criminal Law O1044.2(1)

Although defendant must ordinarily

object to particular evidence at trial in

order to preserve his or her appellate

rights, when defendant raises such objection before trial by motion in limine and

district court’s rejection of defendant’s position is unconditional, defendant’s objection may be deemed preserved even if not

raised again at trial.

40. Criminal Law O450, 2146

District Court did not abuse its discretion by allowing government and its witnesses to use term ‘‘sexual assault’’ at trial

in prosecution for kidnapping resulting in

death, despite contention that government’s use of term was unfairly prejudicial; Court explained the government

planned to introduce evidence that sexual

intercourse occurred and that, under the

circumstances, it was not unfair for government to use term, and Court pointed to

victim’s very high level of intoxication, at

least measured by her blood alcohol level

and fact that a violent struggle took place

in car. 18 U.S.C.A. § 1201(a)(1).

41. Criminal Law O450, 2146

District Court did not abuse its discretion by allowing government and its witnesses to use term ‘‘sexual assault’’ at trial

in prosecution for kidnapping resulting in

death, despite contention that government’s use of term invaded province of

jury to decide whether defendant had in

fact kidnapped victim for sexual gratification; neither government nor its witnesses

presented ‘‘sexual assault’’ as a fact, and it

remained up to jury to decide the ultimate

issue of whether ‘‘purpose’’ element was

Appendix A

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U.S. v. COLEMAN

Cite as 149 F.4th 1 (1st Cir. 2025)

satisfied

for

§ 1201(a)(1).

crime.

18

U.S.C.A.

42. Criminal Law O338(7)

Kidnapping O34

Statements kidnapping victim made to

others about her plans for the weekend

she was kidnapped, including statements

to her case worker at shelter where she

lived and to her daughter’s grandmother,

were relevant and, thus, were admissible

in prosecution for kidnapping resulting in

death, as they made it more likely she

intended to stay in Massachusetts after

she left nightclub in Boston, rather than to

defendant’s apartment in Rhode Island,

and Court’s instruction that government

omit details about daughter and about

shelter where they lived mitigated potential for unfair prejudice. 18 U.S.C.A.

§ 1201(a)(1); Fed. R. Evid. 401, 403.

43. Criminal Law O486(2)

Under Daubert, courts consider the

following nonexclusive factors to determine

whether an expert’s methodology is reliable: (1) whether the theory or technique

can be, and has been, tested; (2) whether

the theory or technique has been subjected

to peer review and publication; (3) the

known or potential rate of error of a particular scientific technique; and (4) whether the methodology has been generally

accepted by the relevant scientific community. Fed. R. Evid. 702.

44. Criminal Law O486(3)

Doctor’s expert opinion testimony

that defendant fled police out of fear, rather than consciousness of guilt, was supported by insufficient disclosure making it

impossible to assess reliability of doctor’s

methodology and, thus, testimony was inadmissible in prosecution for kidnapping

resulting in death; although trial court put

defendant on notice of its concerns that he

had insufficiently explained the basis of

doctor’s opinion, defendant provided only a

7

minimal supplemental disclosure, there

was no expert report or affidavit from

doctor explaining reasons for his opinion

or describing accepted methodologies in

field or methodologies of disclosed articles,

and as to disclosure of ‘‘various studies,’’

court had no way to know how to assess

them because it did not know how they

were conduct, what data they were based

on, what principles they involved, and

whether they were reliable principles or

reliably applied. 18 U.S.C.A. § 1201(a)(1);

Fed. R. Crim. P. 16; Fed. R. Evid. 702.

45. Constitutional Law O4692

Criminal Law O661

The constitutional exception to the

Federal Rules of Evidence’s ‘‘rape shield’’

rule, which permits evidence of prior sexual conduct if exclusion of such evidence

would violate defendant’s constitutional

rights, protects, in part, defendants’ constitutional right under the Fifth and Sixth

Amendments to introduce evidence in their

defense. U.S. Const. Amends. 5, 6; Fed.

R. Evid. 412(b)(1)(C).

46. Criminal Law O661

Constitutional right to meaningful opportunity to present complete defense does

not guarantee defendant unfettered right

to offer testimony that is incompetent,

privileged, or otherwise inadmissible under

standard rules of evidence. U.S. Const.

Amend. 6.

47. Constitutional Law O4651, 4692

Criminal Law O338(6)

Exclusion of evidence of victim’s prior

sexual conduct did not violate defendant’s

Fifth and Sixth Amendment rights to present complete defense in prosecution for

kidnapping resulting in death; although defendant sought evidence to prove consent,

excluded evidence concerned situations

meaningfully different from interaction between defendant and victim, either because

Appendix A

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149 FEDERAL REPORTER, 4th SERIES

prior situations involved individuals victim

already knew, rather than a stranger like

defendant, or because they occurred when

victim was juvenile, and risk of prejudice

was significant, given prevalent stereotypes about sexually active women. U.S.

Const. Amend. 6; 18 U.S.C.A. § 1201(a)(1);

Fed. R. Evid. 412.

48. Criminal Law O1130(5)

Defendant waived argument, on appeal, that testimony about incident involving fatal kidnapping victim’s prior sexual

conduct could have been introduced in

prosecution for kidnapping resulting in

death without reference to sexual conduct,

absent showing why argument was relevant to his defense without those details.

18 U.S.C.A. § 1201(a)(1); Fed. R. Evid.

412.

49. Criminal Law O1036.1(9)

Issue of whether District Court erroneously excluded evidence, in prosecution

for kidnapping resulting in death, of altercation between victim and father of her

child would not be reached on appeal, as

defendant failed to preserve issue at District Court. 18 U.S.C.A. § 1201(a)(1); Fed.

R. Evid. 412.

50. Criminal Law O1153.1, 1155

The Court of Appeals reviews the district court’s ruling to deny a defendant’s

motion for a mistrial and to exclude evidence for abuse of discretion.

51. Criminal Law O1153.6

When a district court rules favorably

on a witness’s invocation of his or her Fifth

Amendment right not to testify, the Court

of Appeals reviews its ruling for abuse of

discretion. U.S. Const. Amend. 5.

52. Criminal Law O867.12(1)

Declaring a mistrial is a last resort,

only to be implemented if the taint is

ineradicable, that is, only if the trial judge

believes that the jury’s exposure to the

evidence is likely to prove beyond realistic

hope of repair.

53. Criminal Law O867.4

The court considers three non-exhaustive factors in determining whether mistrial is appropriate: (1) whether an appropriate curative instruction was issued; (2)

whether the judicial response was timely;

and (3) whether defendants successfully

rebutted the presumption that the jury

followed the judge’s instructions.

54. Criminal Law O867.12(4)

Mistrial was not warranted in prosecution for kidnapping resulting in death

due to unanticipated testimony of medical

examiner, who performed autopsy on victim’s body, that victim was alive when

defendant carried her into his apartment,

where court issued curative instruction

striking testimony from record instructing

jury to disregard it; although court did not

explain why it struck testimony, defendant

never asked court during trial to include

such an explanation.

18 U.S.C.A.

§ 1201(a)(1).

55. Criminal Law O867.12(4)

Mistrial was not warranted in prosecution for kidnapping resulting in death

due to unanticipated testimony of medical

examiner, who performed autopsy on victim’s body, that victim was alive when

defendant carried her into his apartment,

where court issued prompt curative instruction striking testimony from record

instructing jury to disregard it, only about

30 minutes after the challenged testimony.

18 U.S.C.A. § 1201(a)(1).

56. Criminal Law O867.12(4)

Mistrial was not warranted in prosecution for kidnapping resulting in death

due to unanticipated testimony of medical

examiner, who performed autopsy on victim’s body, that victim was alive when

Appendix A

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U.S. v. COLEMAN

Cite as 149 F.4th 1 (1st Cir. 2025)

defendant carried her into his apartment,

as testimony was not so inflammatory that

responsible jurors would not be able to put

testimony to one side despite being instructed to do so due to court’s curative

instruction, absent any explanation why

jury would have dwelled on testimony the

District Court promptly instructed it to

disregard, instead of accepting government’s theory at closing that defendant

killed victim in his car. 18 U.S.C.A.

§ 1201(a)(1).

57. Criminal Law O419(2.5)

Prior statement made by victim’s

friend to police that victim ‘‘was working

as a prostitute on an as-needed basis,

mostly on the weekends’’ was not admissible, under residual exception to hearsay

rule, in prosecution for kidnapping resulting in death; statement was at most marginally probative of whether defendant and

victim had consensual sex on night of victim’s death, and statement was stripped of

its context, in that discussion with police in

no way suggested victim would have

agreed to commercial sex transaction with

man she met on street on night she was

celebrating her birthday. 18 U.S.C.A.

§ 1201(a)(1); Fed. R. Evid. 807.

58. Criminal Law O419(1.5)

Alleged prior statement made by victim’s friend to police that victim ‘‘was

working as a prostitute on an as-needed

basis, mostly on the weekends’’ constituted

inadmissible hearsay in prosecution for

kidnapping resulting in death, where victim invoked Fifth Amendment during trial.

U.S. Const. Amend. 5; 18 U.S.C.A.

§ 1201(a)(1); Fed. R. Evid. 801.

59. Criminal Law O867.14(1)

Mistrial was not warranted in prosecution for kidnapping resulting in death

due to testimony of victim’s friend, in

which she stated to police victim ‘‘was

working as a prostitute on an as-needed

9

basis, mostly on the weekends,’’ despite

contention that friend provided false testimony; to extent testimony was potentially

misleading, it was not so prejudicial as to

require a mistrial, given marginal probative value of statement. 18 U.S.C.A.

§ 1201(a)(1).

60. Criminal Law O659

Mistrial was not warranted in prosecution for kidnapping resulting in death

due to testimony of victim’s friend, in

which she stated to police victim ‘‘was

working as a prostitute on an as-needed

basis, mostly on the weekends,’’ despite

contention that friend ‘‘caused a scene’’ in

the courtroom, absent any facts demonstrating how friend’s outbursts prejudiced

defendant; defendant admitted to causing

victim’s death, and disputed only how she

died. 18 U.S.C.A. § 1201(a)(1).

61. Criminal Law O1139

Court of Appeals reviews preserved

challenge to sufficiency of evidence in

criminal proceeding de novo.

62. Criminal Law O1144.13(3), 1159.2(7)

In reviewing sufficiency-of-evidence

challenge, relevant question is whether, after viewing evidence in light most favorable to prosecution, any rational trier of

fact could have found essential elements of

crime beyond reasonable doubt.

63. Kidnapping O36

Circumstantial evidence that defendant enticed victim into his vehicle with

the promise of a ride to her friend’s apartment, but that his purpose was instead to

hold or detain her for purposes of sexual

gratification, was sufficient to show that

defendant ‘‘seized’’ victim, as required for

defendant’s conviction for kidnapping resulting in death. 18 U.S.C.A. § 1201(a).

See publication Words and Phrases

for other judicial constructions and

definitions.

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149 FEDERAL REPORTER, 4th SERIES

64. Kidnapping O36

68. Criminal Law O1139, 1152.21(1)

Evidence that victim was isolated

from her friends, was moved by defendant

from bar to defendant’s home, and was

strangled to death was sufficient to show

that defendant ‘‘held’’ victim against her

will for an appreciable period, as required

for defendant’s conviction for kidnapping

resulting in death. 18 U.S.C.A. § 1201(a).

Court of Appeals reviews whether the

district court’s jury instructions contained

an error of law de novo, but reviews for

abuse of discretion whether the instructions adequately explained the law or

whether they tended to confuse or mislead

the jury on the controlling issues.

See publication Words and Phrases

for other judicial constructions and

definitions.

65. Kidnapping O36

Evidence that defendant enticed victim into his vehicle with the promise of a

ride to her friend’s apartment, but that

his purpose was instead to hold or detain

her for time necessary to assault her, was

sufficient to show that defendant had requisite ‘‘purpose’’ in kidnapping victim of

sexual gratification, as required for defendant’s conviction for kidnapping resulting

in death. 18 U.S.C.A. § 1201(a).

See publication Words and Phrases

for other judicial constructions and

definitions.

66. Criminal Law O1139

Court of Appeals reviews a district

court’s refusal to give a requested jury

instruction de novo.

67. Criminal

Law

1173.2(3)

O829(4),

835,

Assuming a defendant satisfies initial

burden to show that evidence, viewed in

light most favorable to defense, can plausibly support theory of defense, Court of

Appeals will reverse a district court’s decision to deny a requested jury instruction

only if the instruction was: (1) substantively correct as a matter of law; (2) not

substantially covered by the charge as rendered; and (3) integral to an important

point in the case so that the omission of

the instruction seriously impaired the defendant’s ability to present his defense.

69. Criminal Law O1172.1(3)

Any error regarding instruction defining term ‘‘inveigle’’ in context of federal

kidnapping statute, and whether such term

required element of deceit, was harmless

beyond reasonable doubt, in prosecution

for kidnapping resulting in death, as error

did not affect verdict; jury heard no argument that defendant ‘‘inveigled’’ kidnapping victim through non-deceitful means.

18 U.S.C.A. § 1201(a)(1).

70. Criminal Law O829(3)

Instruction requested by defendant

about consent, both in overview of elements of kidnapping and in definition of

statute’s seizure element was not warranted in prosecution for kidnapping resulting

in death, despite fact that defendant’s requested instruction was substantively correct, where proposed instruction was already substantially covered by court’s

other

instructions.

18

U.S.C.A.

§ 1201(a)(1).

71. Kidnapping O39

Instruction about physical force requirement was not warranted in prosecution for kidnapping resulting in death,

where federal kidnapping statute included

no such requirement, and words themselves, ‘‘inveigle’’ and ‘‘decoy,’’ did not implicitly suggest such a requirement. 18

U.S.C.A. § 1201(a)(1).

72. Criminal Law O829(3)

Defendant’s requested instruction relating to holding and purpose elements of

Appendix A

10

U.S. v. COLEMAN

Cite as 149 F.4th 1 (1st Cir. 2025)

federal kidnapping statute was not warranted in prosecution for kidnapping resulting in death, despite fact that his

preferred instruction was substantively

correct, where instruction was captured

by word ‘‘otherwise’’ as used in court’s

proffered

instruction.

18

U.S.C.A.

§ 1201(a).

73. Criminal Law O772(5)

Kidnapping O39

Consciousness of guilt instruction in

prosecution for kidnapping resulting in

death did not seriously impair defendant’s

defense, as defendant retained ability to

explain why his requested addition that

fleeing defendant could still be innocent of

charge needed to be included in instruction, which already stated mere flight,

without more, was not necessarily indicative of feelings of guilt. 18 U.S.C.A.

§ 1201(a)(1).

74. Criminal Law O865(1.5)

An Allen charge is a supplemental

instruction that a judge may give to a jury

when it is deadlocked in its deliberations.

75. Criminal Law O865(1.5)

An Allen charge, which is a supplemental instruction that a judge may give

to a jury when it is deadlocked in its

deliberations, can have coercive effect and,

thus, it must have the following elements

to moderate any prejudice: (1) it must

communicate the possibility of the majority and minority of the jury reexamining

their personal verdicts; (2) restate the government’s maintenance of the burden of

proof; and (3) inform the jury they may

fail to agree unanimously.

76. Criminal Law O865(1)

Jury instruction on reaching a verdict

in prosecution for kidnapping resulting in

* Judge Selya heard oral argument in this matter and participated in the semble, but he did

not participate in the issuance of the panel’s

11

death suggested only that each jury should

keep an open mind and consider views of

other jurors, and repeated that jurors

should not change their mind or surrender

their own opinions for sake of verdict.

77. Criminal Law O1186.1

Court of Appeals reviews claims of

cumulative error against background of

case as whole and places particular weight

on factors such as: (1) nature and number

of errors committed; (2) their interrelationship, if any, and combined effect; (3) how

district court dealt with errors as they

arose, including efficacy, or lack of efficacy, of any remedial efforts; and (4)

strength of government’s case.

78. Criminal Law O1440(2)

Motion to vacate, set aside, or correct

sentence, rather than direct appeal, was

appropriate remedy for ineffective assistance of counsel claims not presented to

District Court in prosecution for kidnapping resulting in death. U.S. Const.

Amend. 6; 28 U.S.C.A. § 2255.

APPEALS FROM THE UNITED

STATES DISTRICT COURT FOR THE

DISTRICT OF MASSACHUSETTS [Hon.

F. Dennis Saylor, IV, U.S. District Judge]

Christine DeMaso, Assistant Federal

Public Defender, for appellant.

Randall E. Kromm, Assistant United

States Attorney, with whom Joshua S.

Levy, Acting United States Attorney, was

on brief, for appellee.

Before Rikelman and Lynch, Circuit

Judges.*

decision. The remaining two panelists issued

the opinion pursuant to 28 U.S.C. § 46(d).

Appendix A

11

12

149 FEDERAL REPORTER, 4th SERIES

RIKELMAN, Circuit Judge.

After a 15-day trial, a jury convicted

Louis Coleman of kidnapping resulting in

death under 18 U.S.C. § 1201(a)(1). The

district court imposed the sentence required by statute, life in prison without the

possibility of parole. On appeal, Coleman

alleges a wide array of errors throughout

the district court proceedings. After careful consideration of the voluminous record,

we find no error. Thus, we affirm Coleman’s conviction and sentence.

I. BACKGROUND

The tragic events at the center of this

case occurred in late February 2019. In

the pre-dawn hours of Sunday, February

24, Coleman encountered Jassy Correia on

a street in downtown Boston, Massachusetts. The two walked to his car together

at around 2:15 a.m. Two hours later, Coleman drove into the parking lot of his

apartment building in Providence, Rhode

Island. Video footage from building cameras captured him carrying Correia’s limp

body into his apartment. Four days later,

the police stopped Coleman on a highway

in Delaware and found Correia’s dead

body in his trunk. At trial, the parties

vigorously disputed what transpired between Coleman and Correia in those critical two hours on Sunday morning.

[1, 2] Because Coleman challenges the

sufficiency of the government’s evidence

against him, ‘‘[w]e recount the relevant

facts as presented at trial ‘in the light most

favorable to the jury’s verdict, consistent

with record support.’ ’’ United States v.

Katana, 93 F.4th 521, 525 (1st Cir. 2024)

(quoting United States v. Akoto, 61 F.4th

1.

During their investigation, law enforcement

officers collected surveillance footage from

cameras inside and outside of Venu, other

areas of downtown Boston, and parts of Providence. The jury viewed much of this footage

during trial, and it is thus part of the record

that we summarize here. Except where we

36, 38 (1st Cir. 2023)). In evaluating Coleman’s other claims on appeal, ‘‘we offer a

balanced treatment, in which we objectively view the evidence of record.’’ United

States v. Greaux-Gomez, 52 F.4th 426, 430

(1st Cir. 2022) (quoting United States v.

Burgos-Montes, 786 F.3d 92, 99 (1st Cir.

2015)). ‘‘Because ‘we cannot simultaneously

recite the facts in both manners, we limit

our initial summary TTT to those details

essential to framing the issues on appeal,’ ’’

and provide additional details later in our

analysis, as needed. Id. (quoting BurgosMontes, 786 F.3d at 99).

A. Coleman Goes Out in Boston

After several days of illness, Coleman

decided to go out in Boston on Saturday

night, February 23, 2019. At the time, he

was an engineer at the defense company

Raytheon. He asked friends to join him,

but they were unavailable, so he drove

from Providence to Boston by himself. He

entered Venu, a nightclub in downtown

Boston, around 1:00 a.m. on February 24.1

At Venu, Coleman met and spent time

with Lorna Horace. They began talking at

about 1:20 a.m. and soon exchanged phone

numbers. They also danced, held hands,

and kissed. Shortly before Venu closed at

2 a.m., Lorna’s brother, Ednel Horace,

separated Coleman and Lorna.2 The Horace siblings left Venu together with their

friends. Coleman exited Venu around the

same time.

B. Correia Celebrates Her Birthday

with Friends

Correia was celebrating her upcoming

twenty-third birthday that same weekend.

note otherwise, we do not distinguish between

testimony at trial and events captured on

camera.

2.

Because Lorna and Ednel Horace have the

same last name, we refer to them by their first

names to avoid confusion.

Appendix A

12

U.S. v. COLEMAN

Cite as 149 F.4th 1 (1st Cir. 2025)

At the time, she was living in a shelter

with her young daughter and had received

a pass to leave for the weekend, with plans

to return by 5:00 p.m. on Sunday. She had

arranged for her daughter’s grandmother,

Rosina Castro, to watch her daughter so

that Correia could stay overnight on Saturday with her friend, Yvania Mondesir.

To celebrate her birthday, Correia

planned to go with friends to Venu on

Saturday night. During the day, she met

Mondesir at her apartment in Dorchester,

and the two went shopping for clothes for

that evening. Correia bought herself an

orange jumpsuit and shoes and bought

Mondesir a new outfit as well. They spent

the rest of the day at Mondesir’s apartment. Mondesir testified at trial that they

did not drink alcohol before going to Venu

but may have smoked marijuana. She also

testified that they did not take any other

drugs. Correia dressed for the night in the

orange jumpsuit that she had bought earlier, open-toed shoes, and a jean jacket.

Two of Correia’s friends, Aja Hiltz and

Reginald Thomas, had agreed in advance

to pick up Correia and drive her to Venu

that night. Because of confusion about

where Correia was staying for the weekend, Hiltz and Thomas only arrived at

Mondesir’s apartment in Dorchester close

to midnight. The group -- Correia, Hiltz,

Mondesir, and Thomas -- then proceeded

to Venu. There was some tension in the

car because Hiltz did not know in advance

that Mondesir would be joining them. After waiting in line, the group eventually

entered the nightclub at about 12:40 a.m.

In Venu, the group ordered a bottle of

champagne and then later a round of

shots. The three women danced, while

Thomas stayed at the bar. At one point,

Correia and Mondesir began to argue. The

argument between the two escalated and

Mondesir pushed Correia. Hiltz testified at

trial that Mondesir had been the aggressor

13

and Correia had tried to pacify Mondesir.

The argument occurred around 2 a.m.,

when Venu was closing for the night.

A little after 2 a.m., Correia, Hiltz, and

Thomas prepared to leave Venu. Correia

appeared to be struggling to navigate the

stairs in the club and sat down to take off

her shoes. While Correia was seated, Mondesir approached her again but Hiltz kept

the two women separated. They exited

Venu and crossed a street into an alley. In

the alley, Mondesir yelled at Correia and

pushed her again. Shortly afterwards,

Hiltz asked both Correia and Mondesir to

leave with her. Hiltz told Correia several

times that Correia should come with her,

or Hiltz would leave, but Correia decided

to take an Uber instead. By the time Hiltz

and Thomas were ready to depart, the full

group had migrated out of the alley and

onto Tremont Street. It was about 2:14

a.m. when Hiltz and Thomas actually left.

Afterwards, Mondesir pushed Correia one

more time and Correia fell on the sidewalk.

After getting up from the sidewalk,

Correia walked away from Mondesir and

towards a minivan parked on the street,

which she attempted to enter. The minivan

had an Uber decal but the driver, Tamer

Alqasir, testified at trial that he explained

to Correia that he could not take her. In

response, Correia tried to pull the window

down and told him that if he rolled the

window up, she would call the police. After

Correia persisted and opened the door to

his car, Alqasir pushed her to prevent her

from sitting in the passenger seat. Correia

fell outside of the minivan and then threw

snow at the door.

C. Coleman and Correia

Leave Together

It was at this point, after Alqasir pushed

Correia out of his minivan, that Coleman

and Correia met for the first time. Cole-

Appendix A

13

14

149 FEDERAL REPORTER, 4th SERIES

man approached Correia by the minivan at

2:16 a.m. Alqasir testified at trial that

Coleman told Correia something along the

lines of ‘‘this is not your Uber.’’

Coleman and Correia then walked a few

steps away from the minivan and talked

briefly, holding each other’s hands as they

spoke. After about 30 seconds of conversation, they walked down Tremont Street

towards Coleman’s parked car, still holding hands, arriving at the car at 2:20 a.m.

During the walk, Correia, who did not

have her shoes, jumped on Coleman’s back

and he carried her piggyback-style. When

they reached the car, Correia climbed into

the passenger seat on her own, and Coleman proceeded to the driver’s side. They

drove away about two minutes later.

Coleman parked again on another part

of Tremont Street at 2:32 a.m., where he

and Correia remained for about 12 minutes. Although the street was lit, video

footage does not show what happened inside Coleman’s car during those 12 minutes, but it does show that other vehicles

drove by his car. After that stop, Coleman

drove down Tremont until he turned right

onto a one-way street. Finding two police

cruisers blocking the end of that street,

Coleman quickly backed up the block and

turned back onto Tremont Street, heading

north. Location data then showed him proceeding in the direction of I-93 and merging onto I-93 in the direction of I-95 South.

Sometime later, Coleman drove north

again, and location data placed the car

near South Quincy around 3:20 a.m. Finally, Coleman began to travel south again,

eventually entering Rhode Island.

Coleman drove into the parking lot of

his apartment building in Providence

around 4:00 a.m. He proceeded to exit his

car, retrieve a white comforter from his

apartment, and return to the car. Video

footage from inside and outside his apartment building showed Coleman carrying a

body out of his car -- law enforcement

later identified the body as Correia based

on the orange jumpsuit. Coleman carried

Correia’s limp body through the lobby of

his apartment building, into the elevator

bank, and out of the elevator onto the sixth

floor, where he lived. Correia’s body was

naked from the waist up.

There is no video evidence from the

early hours of Sunday after Coleman entered his apartment unit. Coleman’s neighbor testified at trial, however, that she

woke up due to loud banging and a closet

door being slammed shut early Sunday

morning.

Some of Coleman’s actions over the following days were recorded on video by

cameras in his building and in various

stores. Videos and receipts showed that

Coleman purchased several items between

February 24 and 27, including a scented

candle and lighter from RiteAid; pelletized

limestone from Home Depot; and baking

soda, coveralls, a mask, safety goggles, an

odor respirator, CLN Release Bleach, a

large suitcase, and a gas canister from

several Walmart stores. Location data further revealed that Coleman visited two car

washes within the span of thirty minutes

on Sunday, February 24.

During the same few days, Coleman

conducted various internet searches. Forensic analysis of his hard drive revealed

that Coleman researched topics including

hardship withdrawals from Fidelity, a car

air freshener, an air purifier, sanitizing

Clorox, a turkey baster, and turkey baster

alternative. He additionally searched questions, such as ‘‘[c]an a person fit in a

suitcase,’’ ‘‘[h]ow to clean for embalming,’’

‘‘[o]il barrel, where to purchase,’’ and

‘‘[h]ow to pull a tooth that’s not loose.’’ On

February 24, Coleman installed the application IPVanish on his computer, which is

used to hide a user’s IP address.

Appendix A

14

U.S. v. COLEMAN

Cite as 149 F.4th 1 (1st Cir. 2025)

D. The Investigation

Both Mondesir and Correia’s father reported Correia missing to the Boston Police Department (BPD) on Tuesday, February 26, 2019. In response, BPD officers

conducted interviews and collected and reviewed video recordings from Venu and

other businesses in the area. Through this

review, BPD learned that Correia left

Venu with a man. They later identified the

man as Coleman and connected him to an

address in Providence.

After learning that Coleman was a person of interest in a missing person investigation, Providence Police Department

(PPD) officers conducted a wellness check

at Coleman’s address just before 1:00 a.m.

on February 28, 2019. They were unable to

enter the building. Coleman was not in the

building at the time but likely saw the

police cruisers from where he was walking

outside. He returned to his apartment

building at 1:00 a.m. and began to pack his

car, making several trips from his apartment to the car between 1:00 a.m. and 4:05

a.m. He placed the suitcase that he had

bought earlier in the week in the trunk of

his car, noticeably struggling with its

weight. After he finished packing his car,

he drove away.

Officers from both the BPD and PPD

returned to Coleman’s address the morning of February 28. They entered Coleman’s apartment, as the door had been left

slightly open and appeared to be broken.

The officers noticed that the apartment

was ‘‘extremely cold,’’ all the windows

were open, and there was ‘‘a very strong

smell of cleaning solution.’’ While walking

around the apartment, they also noticed

that the bathroom shower curtain and a

couch cushion were missing. At that point,

the officers decided to leave the apartment

3.

At trial, an officer defined ‘‘pings’’ as a

process by which ‘‘the phone company can

reach out to the phone, ping the phone and

15

and call their supervisors. The apartment

was searched carefully later that afternoon, pursuant to a warrant. On the same

day, law enforcement gained access to surveillance videos from the apartment building and reviewed hundreds of videos, including the footage we describe here.

As the investigation proceeded in Providence, members of BPD’s Special Investigations Unit executed an ‘‘exigent request’’

to use ‘‘pings’’ to locate a phone that they

had linked to Coleman.3 From the video

footage review, law enforcement also identified the make, model, and license plate of

Coleman’s car. With that information, officers confirmed that Coleman’s car had

OnStar, a built-in navigation system that

can act as a GPS unit. They made an

emergency request to OnStar to turn on

the OnStar unit in Coleman’s car. Using

location information from pings to Coleman’s phone and OnStar, law enforcement

discovered that Coleman was driving south

from Rhode Island. They located him near

Wilmington, Delaware around 1:41 p.m.,

and contacted Delaware State Police

(DSP).

DSP officer Hasan Halis stopped Coleman’s car on I-95 South, as Coleman was

exiting the highway. After back-up arrived,

DSP officers arrested Coleman and asked

him if anyone else was in the car, to which

he responded, ‘‘in the trunk.’’ DSP officers

then gave commands to see if anyone

would exit the trunk, at which point Coleman said, ‘‘she’s dead.’’ The officers

searched the car and found Correia’s body

covered in white powder in the suitcase;

she was bound with duct tape and inside a

couch cushion, which was inside a trash

bag. The DSP paramedic on the scene

concluded that Correia was dead.

get its geographical location’’ based on the

phone’s connection to a cell tower.

Appendix A

15

16

149 FEDERAL REPORTER, 4th SERIES

Soon after arresting Coleman, DSP officers observed a bandage on his face and

asked him if his injury needed to be addressed. Coleman responded, ‘‘it’s from the

girl.’’

Following the arrest, officers recovered

various items from Coleman’s car, including a computer tower, a red gas can, a Bic

lighter, a ski mask, contractor bags,

gloves, pliers, and hedge trimmers. They

also observed damage to the car itself,

namely two cracks to the windshield on the

passenger side. The cracks were processed

for DNA testing, and the swabs of the

windshield’s interior produced matches for

both Coleman’s and Correia’s DNA.

The day after police arrested Coleman

and recovered Correia’s body, Delaware

Medical Examiner Dr. Jennie Vershvovsky

conducted an autopsy. She later testified

about her findings at trial. Dr. Vershvovsky stated that Correia weighed 119

pounds at the time of her death and had

numerous abrasions and contusions on her

face, which had occurred while Correia

was still alive. She also stated that Correia

had injuries around her neck and provided

her medical opinion that the cause of Correia’s death was strangulation.

When Dr. Vershvovsky performed the

autopsy, she used a sexual assault kit to

collect an oral swab, a vaginal swab, a

rectal swab, fingernail scrapings, and fingernail clippings from Correia’s body. Semen matching Coleman’s DNA was identified on the vaginal swab. Coleman’s DNA

was also matched to the rectal swab and

fingernail scrapings and clippings. Dr.

Vershvovsky testified that there were no

injuries to Correia’s vagina or anus, but

that the lack of lacerations or bruising in

these areas did not rule out sexual assault.

4.

With the permission of this court, Coleman

submitted a pro se brief in addition to his

counseled brief. In our analysis, we distin-

Dr. Vershvovsky also ordered a toxicology analysis of Correia’s blood. The toxicology report came back positive for both

cocaine and marijuana. The report also

showed a blood alcohol concentration of

0.21 grams per deciliter, three times the

presumptive intoxication level in Massachusetts. A forensic toxicologist testified

that the combination of these substances,

particularly cocaine and alcohol, can cause

paranoia and violence.

E. Legal Proceedings

A grand jury returned an indictment

charging Coleman with kidnapping resulting in death in violation of 18 U.S.C.

§ 1201(a)(1) on April 4, 2019. Coleman’s

trial took place in May 2022.

The government’s theory of the case, in

short, was that Coleman had deceived

Correia by offering her a ride to Mondesir’s apartment when his intent was to

have sex with her. According to the government, Coleman sexually assaulted and

killed Correia in his car during the 12minute stop on Tremont Street. At trial,

Coleman did not dispute that he caused

Correia’s death. Instead, the defense argued that Correia left with Coleman voluntarily, they had consensual sex, and they

later got into a sudden and unexpected

argument that turned violent and resulted

in Correia’s death.

The jury returned a guilty verdict on

June 1, 2022. The district court sentenced

Coleman to life in prison.

Coleman timely appealed the verdict and

sentence.4

II. DISCUSSION

We now analyze each of Coleman’s legal

claims, moving chronologically through the

stages of his prosecution.

guish between the arguments raised in the

two briefs.

Appendix A

16

U.S. v. COLEMAN

Cite as 149 F.4th 1 (1st Cir. 2025)

A. The Indictment

Coleman raises three challenges related

to his indictment, each of which he preserved in the district court. First, he argues that the indictment was constitutionally insufficient for failing to provide facts

specific to core elements of kidnapping.

Second, he argues that the district court

erroneously denied his motion for a bill of

particulars. Third, he argues that the government’s reliance at trial on evidence that

he kidnapped Correia for sexual gratification violated the Presentment Clause of

the Fifth Amendment because that theory

was not presented to the grand jury. We

evaluate each challenge in turn.

1. Sufficiency of the Indictment

[3] We begin with Coleman’s argument

that the indictment was constitutionally

defective. We review a challenge to the

sufficiency of an indictment de novo. United States v. Savarese, 686 F.3d 1, 6 (1st

Cir. 2012).

[4] An indictment is generally constitutionally adequate if it ‘‘specifies the elements of the offense charged, fairly apprises the defendant of the charge against

which he must defend, and allows him to

contest it without fear of double jeopardy.’’

Id. Under our precedent, an indictment

meets this standard if it ‘‘use[s] the statutory language to describe the offense,’’ so

long as it also includes enough ‘‘facts and

circumstances TTT to inform the accused of

the specific offense with which he is

charged.’’ Id. (citing United States v. Mojica-Baez, 229 F.3d 292, 309 (1st Cir. 2000)).

The grand jury charged Coleman under

the federal kidnapping statute, which provides:

Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person TTT

17

when[ ] the person is willfully transported in interstate or foreign commerce,

regardless of whether the person was

alive when transported across a State

boundary, or the offender travels in interstate or foreign commerce or uses the

mail or any means, facility, or instrumentality of interstate or foreign commerce in committing or in furtherance of

the commission of the offense[ ] shall be

punished by imprisonment for any term

of years or for life and, if the death of

any person results, shall be punished by

death or life imprisonment.

18 U.S.C. § 1201(a)(1). The indictment contained only one count, and it stated:

On or about February 24, 2019, in the

District of Massachusetts, and elsewhere, the defendant,

LOUIS D. COLEMAN, III,

did unlawfully seize, confine, inveigle,

decoy, kidnap, abduct, and carry away

and hold, for ransom and reward and

otherwise, Jassy Correia, when Ms.

Correia was willfully transported in interstate commerce, and when Louis D.

Coleman, III traveled in interstate commerce in committing and in furtherance

of the commission of offense, resulting in

the death of Ms. Correia.

All in violation of Title 18, United States

Code, Section 1201(a)(1).

Coleman argues that the indictment was

insufficient because it alleged only broad

statutory language without providing factual specificity. He points to three problems in particular. According to Coleman,

the indictment left the government free to

pursue any theory because it alleged that

Coleman ‘‘seized, confined, inveigled, decoyed, kidnapped, abducted, or carried

Correia away.’’ Next, he claims the indictment omitted ‘‘how or when he held her

involuntarily for an appreciable period.’’

Finally, he contends the indictment omitted the purpose for which Coleman kid-

Appendix A

17

18

149 FEDERAL REPORTER, 4th SERIES

napped Correia. Coleman argues that the

‘‘omitted elements go to the core of the

kidnapping charge,’’ and thus he needed

this information to adequately prepare his

defense.

[5, 6] We disagree that the indictment

needed to be more specific to pass constitutional muster. To begin, it was permissible to list each statutorily available method

of kidnapping in the alternative in the

indictment. Coleman points us to no case

where we have held that an indictment is

constitutionally deficient for including alternative theories. Further, requiring the

government to charge only one means of

establishing an element when multiple

means are statutorily available would conflict with the well-established rule that

‘‘where an indictment charges in the conjunctive several means of violating a statute, a conviction may be obtained on proof

of only one of the means.’’ United States v.

Garcı́a-Torres, 341 F.3d 61, 66 (1st Cir.

2003) (quoting United States v. Simpson,

228 F.3d 1294, 1300 (11th Cir. 2000)); see

also United States v. Mubayyid, 658 F.3d

35, 70 (1st Cir. 2011);5 United States v.

Howard, 742 F.3d 1334, 1344 n.3 (11th Cir.

2014) (collecting cases across circuits).

[7] Next, the indictment was not required to be more specific as to precisely

when or how Coleman ‘‘held’’ Correia. The

use of the word ‘‘hold,’’ combined with the

other facts about when and where Correia’s alleged kidnapping occurred, was suf5.

Mubayyid, which was cited by the government, involved a challenge to the sufficiency

of the evidence against the defendant. See 658

F.3d at 69. The defendant had been charged

with concealing two material facts, and we

held that the verdict could stand if the evidence was sufficient as to either fact. See id.

at 69-70. Coleman argues that Mubayyid is

distinguishable because the defendant in that

case did not challenge the sufficiency of the

relevant count of the indictment and because

the indictment described the two facts with

specificity. (The defendant had challenged a

ficient to apprise Coleman of this element

of the offense. See United States v. Resendiz-Ponce, 549 U.S. 102, 108, 127 S.Ct. 782,

166 L.Ed.2d 591 (2007) (rejecting argument that the indictment needed to specify

overt acts constituting attempted illegal

re-entry into the U.S. and finding the use

of the statutory word ‘‘attempt,’’ when

combined with facts about the time and

place of defendant’s attempted re-entry,

constitutionally sufficient); United States

v. Stepanets, 879 F.3d 367, 372 (1st Cir.

2018) (the indictment ‘‘need only outline

‘the elements of the crime and the nature

of the charge’ ’’ (quoting United States v.

Guerrier, 669 F.3d 1, 3 (1st Cir. 2011))).

[8] Coleman points to our decision in

United States v. Murphy as an example of

a case in which we found an indictment

defective for failing to provide specific

facts, but that case involved special circumstances not at issue here.6 See 762

F.2d 1151 (1st Cir. 1985). In Murphy, the

defendants were charged with intimidating

a witness to interfere with an official proceeding in violation of 18 U.S.C.

§ 1512(a)(1). See id. at 1153. The indictment specified the date, location, and victim of the charged offense, but not the

specific proceeding that the defendants

were accused of attempting to influence.

See id. We found the indictment defective

for failing to specify the proceeding, explaining that a defendant could not properly prepare a defense without ‘‘at least

different count of the indictment before the

district court, which had dismissed that

count, and the government appealed. See id.

at 46-47.) Although the details of Mubayyid

are different, the general principle articulated

in Mubayyid applies here.

6.

Coleman also cites United States v. SantaManzano, 842 F.2d 1 (1st Cir. 1988), which

we address in relation to his Presentment

Clause argument. See infra Section II.A.3.

Appendix A

18

U.S. v. COLEMAN

Cite as 149 F.4th 1 (1st Cir. 2025)

some indication of the identity of the proceeding in which the defendant tried to

influence testimony.’’ Id. at 1154-55. The

name of the witness was not sufficient to

indicate the proceeding because the witness was an informant in multiple cases,

and the government changed its theory

about which proceeding defendants had allegedly tried to influence during the course

of the trial. See id. at 1152-53. ‘‘[W]hat is a

fair description of a crime for purposes of

permitting an adequate defense necessarily varies with the nature of the offense and

the peculiarities of defending against the

kind of charge involved.’’ United States v.

Tomasetta, 429 F.2d 978, 979 (1st Cir.

1970). In this case, where Coleman was

charged with holding a specific person on a

specific date, there is no similar need to

specify in greater detail how the hold happened for Coleman to prepare a defense.

[9, 10] Similarly, the indictment did not

need to specify Coleman’s purpose in holding Correia. We previously ruled that ‘‘the

phrase ‘for ransom or reward or otherwise’ ’’ (the purpose element) is ‘‘a necessary element’’ of federal kidnapping which

should be included in the indictment. United States v. Calderon, 77 F.3d 6, 9-10 (1st

Cir. 1996) (quoting 18 U.S.C. § 1201). We

did not suggest, however, that the indictment needs to be more specific than the

statutory language to provide sufficient notice of the purpose element. See id. We

now join our sister circuits in rejecting the

7.

We note that Atchison, Webster, Boykin,

and Adams are at odds with our precedent in

Calderon to the extent that they do not treat

the defendant’s purpose as an element of 18

U.S.C. § 1201.

8.

The location alleged in the indictment is

admittedly broad. But we assess the adequacy

of the indictment in the context of the crime

charged. See Tomasetta, 429 F.2d at 979. The

location described in the indictment (‘‘in the

District of Massachusetts, and elsewhere’’)

was appropriate here, particularly in light of

Coleman’s interstate travel. Compare id. (in-

19

argument that an indictment for kidnapping needs to state the purpose of the

defendant with more specificity than the

statutory language. See Hall v. United

States, 410 F.2d 653, 659-60 (4th Cir. 1969)

(indictment that alleged the victim was

held ‘‘for ransom[,] reward[,] and otherwise’’ was sufficient); United States v.

Bentley, 310 F.2d 685, 685 (6th Cir. 1962)

(same); Loux v. United States, 389 F.2d

911, 916 (9th Cir. 1968) (same); United

States v. Atchison, 524 F.2d 367, 370-71

(7th Cir. 1975) (same); see also United

States v. Webster, 162 F.3d 308, 328 (5th

Cir. 1998); United States v. Boykin, 794

F.3d 939, 945-48 (8th Cir. 2015); United

States v. Adams, 83 F.3d 1371, 1373-75

(11th Cir. 1996).7

The indictment here ‘‘faithfully tracks

the language of the statute’’ and ‘‘notifies

[Coleman] not only of the elements of the

crimes charged, but also of the relevant

facts.’’ Savarese, 686 F.3d at 7. Namely, it

provides the date of the alleged kidnapping, the name of the victim, and the location.8 Nothing more is required. See Stepanets, 879 F.3d at 372-73; Resendiz-Ponce,

549 U.S. at 108, 110, 127 S.Ct. 782 (finding

an indictment that tracked the statutory

language and specified the date and location of the charged offense constitutionally

sufficient, and explaining that modern

pleading rules do not require ‘‘detailed allegations’’).

dictment charging the defendant ‘‘of making

threats by an unstated means to an unnamed

person on a particular day in a city of moderate size’’ was constitutionally insufficient);

with United States v. Hallock, 941 F.2d 36,

38, 40 (1st Cir. 1991) (indictment that

charged conspiracy ‘‘in the District of Maine

and elsewhere’’ and listed the defendant’s coconspirators was sufficient because ‘‘a conspiracy does not normally occur at only one

particular time or place’’ and the defendant

had ‘‘the most relevant names’’).

Appendix A

19

20

149 FEDERAL REPORTER, 4th SERIES

2. Bill of Particulars

[11] We now turn to Coleman’s argument that the district court erroneously

denied his motion for a bill of particulars.

The court found that a bill of particulars

was not necessary here for Coleman ‘‘to

help prepare a defense, avoid surprise, or

protect against double jeopardy.’’ We review the denial of a bill of particulars for

abuse of discretion. United States v. Sepulveda, 15 F.3d 1161, 1193 (1st Cir. 1993).

[12] Bills of particulars are rarely used

in modern prosecutions. See id. at 1192.

‘‘When pursued, they need be granted only

if the accused, in the absence of a more

detailed specification, will be disabled from

preparing a defense, caught by unfair surprise at trial, or hampered in seeking the

shelter of the Double Jeopardy Clause.’’

Id. at 1192-93.

[13, 14] The district court did not

abuse its discretion by denying Coleman’s

motion for a bill of particulars. To the

extent Coleman argues that he could not

prepare a defense because the government

had not settled on a theory of how the

kidnapping occurred, we find that argument unpersuasive considering our holding

that it was permissible for the government

to charge alternative elements in the conjunctive. See supra Section II.A.1. And, to

the extent he argues that he was unfairly

surprised, his sole example is Dr. Vershvovsky’s testimony that Correia was alive

when Coleman carried her into his apartment. But the district court properly

struck that testimony so any prejudice was

mitigated.9 Further, given the government’s statement at trial that it had not

expected that testimony either, we see no

basis to conclude that a bill of particulars

would have prevented this surprise. Final9.

We address this issue in greater detail below, in evaluating Coleman’s argument that

the district court erroneously denied a mistri-

ly, Coleman has not developed an argument as to why he needed a bill of particulars to avoid double jeopardy.

3. Presentment Clause

We now turn to Coleman’s argument

that he was convicted based on allegations

not presented to the grand jury, in violation of his constitutional rights under the

Presentment Clause. The Presentment

Clause of the Fifth Amendment guarantees that ‘‘[n]o person shall be held to

answer for a capital, or otherwise infamous

crime, unless on a presentment or indictment of a Grand Jury.’’ U.S. Const. amend.

V.

Coleman contends that the admission of

evidence at trial that he kidnapped Correia

for sexual gratification violated the Presentment Clause because the indictment did

not allege that his purpose was sexual

gratification and, in his view, the government had no evidence at the time of the

indictment that it could have presented to

support that theory. Because, Coleman

reasons, the grand jury could not have

indicted him on the sexual gratification

theory, he argues that he has a claim

‘‘analogous to a pretrial motion raising a

constructive amendment.’’

The government disagrees with Coleman’s characterization of his claim. It

views Coleman’s argument as a challenge

to the sufficiency of the evidence before

the grand jury, which is the type of challenge that we are barred from deciding.

See Kaley v. United States, 571 U.S. 320,

328, 134 S.Ct. 1090, 188 L.Ed.2d 46 (2014);

United States v. Capozzi, 486 F.3d 711, 726

(1st Cir. 2007) (‘‘A court should not inquire

into the sufficiency of the evidence before

the indicting grand jury TTTT’’ (quoting

al based on the same testimony. See infra

Section II.E.1.

Appendix A

20

U.S. v. COLEMAN

Cite as 149 F.4th 1 (1st Cir. 2025)

United States v. Maceo, 873 F.2d 1, 3 (1st

Cir. 1989))).

[15] We agree with Coleman that he

has raised a constitutional claim we can

review, but we treat his argument as raising a prejudicial variance claim, not a constructive amendment claim. We review

constructive amendment and prejudicial

variance claims de novo. See Katana, 93

F.4th at 530.

i. Constructive Amendment

[16, 17] ‘‘A constructive amendment

occurs when the government’s evidence or

arguments or the court’s jury instructions

alter the terms of an indictment such that

the defendant is effectively charged with a

different offense than the one returned by

the grand jury.’’ Id. ‘‘A constructive

amendment is considered prejudicial per

se and grounds for reversal of a conviction’’ in part because it violates a defendant’s rights under the Presentment

Clause. Id. (cleaned up) (citation omitted).

[18] Under our modern constructive

amendment precedent, we focus on the

offense charged in the indictment, not the

particular theories of liability. Id. at 532

(citing United States v. Simon, 12 F.4th 1,

35 (1st Cir. 2021)). And we look to statutory elements in response to claims by defendants that the crime charged has been

changed. See id.

[19] The district court’s decision to admit evidence that the government relied on

to argue that Coleman kidnapped Correia

for sexual gratification did not amount to a

constructive amendment or violate the

Presentment Clause. Coleman was indicted

for kidnapping Correia and causing her

death on February 24 in violation of 18

U.S.C. § 1201(a)(1), and the jury convicted

him of that same crime. The admitted evidence concerned an element of that crime

(namely, Coleman’s purpose in kidnapping

21

Correia). It did not alter the ‘‘substance of

the charge.’’ United States v. Dowdell, 595

F.3d 50, 68 (1st Cir. 2010) (quoting United

States v. Eirby, 262 F.3d 31, 38 (1st Cir.

2001)). There was thus no constitutional

violation. See id. at 67-68 (amendment to

the indictment to reflect distribution of

‘‘cocaine base’’ rather than ‘‘cocaine’’ did

not violate the Presentment Clause because the charged offense, 21 U.S.C.

§ 841(a), prohibits the distribution of any

controlled substance); see also Gooch v.

United States, 297 U.S. 124, 128, 56 S.Ct.

395, 80 L.Ed. 522 (1936) (explaining Congress enlarged the federal kidnapping statute to encompass a kidnapping for any

benefit to the defendant).

Coleman relies on our prior decision in

United States v. Santa-Manzano to argue

otherwise, but that decision is not on point.

See 842 F.2d 1 (1st Cir. 1988). In SantaManzano, the indictment charged a specific

fraudulent scheme involving the sale of

fake certificates of deposit, including a

sham office where unsuspecting buyers

would be lured into purchasing these false

certificates, but, at trial, the government

proved an entirely different fraudulent

scheme involving the sale of a worthless

line of credit in return for 18 million Venezuelan bolivars. See id. at 2. The indictment did not specify the property that was

the object of the charged scheme to defraud. See id. We thus found that indictment constitutionally deficient because it

‘‘suggest[ed] a different [crime]’’ than ‘‘the

crime the government sought to prove.’’

Id. at 2-3. By contrast, Coleman’s indictment properly alleged the elements of the

crime, including the purpose element, and

the government became more specific

about its purpose theory both during discovery and at trial. Under our case law,

the narrowing of a charge is at most a

variance from the indictment. See United

States v. Mueffelman, 470 F.3d 33, 38-39

Appendix A

21

22

149 FEDERAL REPORTER, 4th SERIES

(1st Cir. 2006); Katana, 93 F.4th at 530.

And as we discuss below, we conclude

there was no prejudicial variance here.

ii. Prejudicial Variance

[20, 21] A variance occurs when the

government relies on different facts at trial than it alleged in the indictment to

prove the same offense. See Katana, 93

F.4th at 530. In contrast to a constructive

amendment, a variance requires reversal

only if there is prejudice to a ‘‘defendant’s

substantial rights, i.e., the right to have

knowledge of the charge sufficient to prepare an effective defense and avoid surprise at trial,’’ and to prevent a second

prosecution for that same offense. Id.

(quoting United States v. Vega-Martı́nez,

949 F.3d 43, 51 (1st Cir. 2020)); see also

United States v. Fornia-Castillo, 408 F.3d

52, 66 (1st Cir. 2005) (‘‘[S]o long as the

statutory violation remains the same, the

jury can convict even if the facts found are

somewhat different than those charged -so long as the difference does not cause

unfair prejudice.’’ (quoting United States

v. Twitty, 72 F.3d 228, 231 (1st Cir. 1995))).

Coleman has the burden to show such

prejudice. See Mueffelman, 470 F.3d at 39.

[22] We are not convinced that there

was any variance here. Coleman argues

that no evidence of ‘‘sexual assault or sex

at all’’ was presented to the grand jury.

For example, he contends that the results

of the DNA test on Correia’s sexual assault kit were not even available to the

10. In support of his Presentment Clause challenge, Coleman also cites a March 2019 statement from the then-U.S. Attorney that ‘‘it [did

not] appear Correia was sexually assaulted.’’

This statement did not foreclose the government from arguing to the grand jury one

month later that Coleman’s purpose was sexual gratification. The parties agree that the

government had, at that point, evidence from

the police investigation into Correia’s disappearance, including video footage of Correia

naked from the waist up when Coleman car-

grand jury before it returned its indictment. To the extent Coleman claims that

the grand jury could not have found, as a

matter of fact, that his purpose was sexual

gratification without DNA evidence of sexual intercourse, the government is correct

that we are foreclosed from reviewing the

sufficiency of the evidence before the

grand jury. See Kaley, 571 U.S. at 328, 134

S.Ct. 1090.10

[23] But even assuming there was a

variance, Coleman has not shown any prejudice. The record reflects that Coleman

was aware well before trial that the government planned to introduce evidence

that he sexually assaulted Correia. This

topic came up repeatedly in pretrial motions and pretrial conferences with the district court. Coleman’s well-developed arguments at trial to introduce evidence to

show that any sexual encounter was consensual demonstrate that he was prepared

for the government’s theory.11 On these

facts, we cannot conclude that Coleman

‘‘was ‘so in the dark about the’ government’s prosecution theory at trial that

‘[ ]he could not prepare a defense or plead

double jeopardy to stop a second prosecution for the same crime.’ ’’ Katana, 93

F.4th at 537 (quoting Greaux-Gomez, 52

F.4th at 439).

B. Motion to Suppress

Coleman next contends that the district

court erred in denying his motion to suppress evidence obtained from several

ried her from his car. We see no reason to

conclude that the government could not have

argued to the grand jury that Coleman’s purpose was sexual gratification based on that

evidence.

11. Coleman separately argues that this evidence was erroneously excluded, an argument

which we address below. See infra Section

II.D.4.i.

Appendix A

22

U.S. v. COLEMAN

Cite as 149 F.4th 1 (1st Cir. 2025)

searches following his arrest. In his view,

the warrants supporting those searches

did not establish probable cause. The challenged warrants authorized searches of

Coleman’s cellphone, records from his cellphone service provider, his Google account

records, a laptop and computer tower

seized from his car, and the vehicle information module for his car.

[24–26] ‘‘We review de novo the district court’s legal conclusion about whether

a given set of facts amounts to probable

cause.’’ United States v. Gonzalez, 113

F.4th 140, 147 (1st Cir. 2024). ‘‘We view

the facts in the light most favorable to the

district court’s ruling, but only to the extent they are not clearly erroneous.’’ United States v. Rivera, 988 F.3d 579, 581 (1st

Cir. 2021). In conducting that analysis, a

court considers whether a warrant application contains sufficient information to

‘‘demonstrate probable cause to believe

that (1) a crime has been committed -- the

‘commission’ element, and (2) enumerated

evidence of the offense will be found at the

place searched -- the so-called ‘nexus’ element.’’ Gonzalez, 113 F.4th at 148 (quoting

United States v. Roman, 942 F.3d 43, 50

(1st Cir. 2019)).

[27–29] ‘‘Probable cause exists when

the totality of the circumstances suggests

that there is a fair probability that’’ the

crime occurred and ‘‘contraband or evidence of a crime will be found in a particular place.’’ United States v. Francis, 132

F.4th 101, 107 (1st Cir. 2025) (internal

quotation marks omitted) (quoting United

States v. Gifford, 727 F.3d 92, 98 (1st Cir.

2013)). ‘‘Fair probability is less than a

more-likely-than not standard,’’ Gonzalez,

113 F.4th at 148, and always entails a

‘‘practical, common-sense decision,’’ Francis, 132 F.4th at 107 (quoting United

States v. Tanguay, 787 F.3d 44, 50 (1st Cir.

2015)). In our analysis, we ‘‘accord[ ] deference to the reasonable inferences that the

23

issuing judge may have drawn.’’ United

States v. Sylvestre, 78 F.4th 28, 33 (1st

Cir. 2023).

Coleman argued to the district court and

re-urges on appeal that the warrant applications failed to provide sufficient information to establish probable cause as to both

the commission and nexus elements. As we

explain below, however, we agree with the

district court that there was probable

cause to believe Coleman kidnapped Correia and that evidence of that crime would

be found in the documents and devices to

be searched. Because we conclude there

was probable cause, we do not reach the

parties’ arguments about the good-faith

exception.

1. The Commission Element

The parties agree on appeal with the

district court’s assessment that ‘‘the issues

[across the warrant applications] are essentially the same and intertwine and overlap to a great extent.’’ They treat the

affidavit submitted by FBI Special Agent

Thomas Zukauskas in support of the cellphone warrant application as representative for the commission element. We do

the same.

Special Agent Zukauskas described in

detail law enforcement’s investigation into

Correia’s disappearance, which led to Coleman’s arrest on February 28, 2019. Because this detailed description overlaps

substantially with our earlier description of

the same events, we focus on the facts in

the affidavit most pertinent to Coleman’s

suppression motion.

In his affidavit, Special Agent Zukauskas recounted the key events that occurred preceding the search. As he set out:

1

Correia left the area outside of Venu

at 2:16 a.m. on Sunday, February 24

with a man that law enforcement

later identified as Coleman. Correia

Appendix A

23

24

149 FEDERAL REPORTER, 4th SERIES

and Coleman walked to a red sedan,

which Coleman drove into the parking lot of his Providence apartment

building two hours later.

1

After arriving at his apartment complex, Coleman carried a woman’s

limp, half-naked body out of his car

and dragged it through the lobby of

his building, into the elevator, and

towards his apartment. From his review of photos and video, Special

Agent Zukauskas believed it was

Correia’s body.

1

Early on February 28, 2019, Coleman packed the same red sedan with

several items, including a suitcase,

and drove out of state. Later that

day, Delaware State Police located

and stopped Coleman in his vehicle.

There were cracks in the vehicle’s

windshield on the passenger side.

1

When asked if anyone else was in the

vehicle, Coleman stated ‘‘she’s in the

trunk.’’ Law enforcement conducted

a sweep of the red sedan and found a

dead body with significant bruising

in a suitcase in the trunk. It appeared to be Correia. Coleman was

taken into custody; he had a bandage

on his face and when asked about it,

he attributed the injury to ‘‘the girl.’’

Despite this detailed factual account,

Coleman argues that the affidavit did not

provide a substantial basis to conclude that

there was probable cause to establish

three of the necessary elements of kidnapping. In his view, the affidavit did not

demonstrate that Correia was (1) unlawfully seized, confined, inveigled, decoyed, kidnapped, abducted, or carried away and (2)

held for an appreciable period against her

will (3) for ransom, reward, or otherwise.

See 18 U.S.C. § 1201(a); Chatwin v. United

States, 326 U.S. 455, 459-60, 66 S.Ct. 233,

90 L.Ed. 198 (1946).

[30] Our review of the ‘‘totality of the

circumstances as they are set forth in the

warrant application’’ persuades us that

there was sufficient information to demonstrate a fair probability that Coleman kidnapped Correia. United States v. Sheehan,

70 F.4th 36, 44 (1st Cir. 2023). Coleman

contends the magistrate judge could not

have concluded that a seizure and holding

occurred because the affidavit describes

Correia voluntarily walking to Coleman’s

car but does not describe what occurred

between their departure from Boston and

their arrival in Providence. But his view of

the facts does not credit reasonable inferences that the magistrate judge could

draw against him. See Sylvestre, 78 F.4th

at 33. According to the affidavit, Correia

was alive when she entered Coleman’s car

but was dead or unconscious two hours

later when Coleman carried her limp body

out of the car; her face was bruised; the

windshield was cracked on the passenger

side; and Coleman attributed an injury on

his face to Correia. A permissible, common-sense inference from these facts is

that a struggle occurred in the car, during

which Correia was seized and held against

her will.

We are also unconvinced by Coleman’s

claim that the affidavit provided no basis

from which to conclude Coleman kidnapped Correia to ‘‘secure a benefit for

himself.’’ This one-sentence argument is

likely waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). Regardless, the affidavit references evidence of a

struggle in the car and the footage showing Correia naked from the waist up when

Coleman carried her out of the car, which

is enough to show a fair probability that

Coleman held Correia for sexual gratification, to cover up a crime, or to prevent the

reporting of a crime. Any of these purposes would suffice to satisfy the broad

language of the federal kidnapping statute.

Appendix A

24

U.S. v. COLEMAN

Cite as 149 F.4th 1 (1st Cir. 2025)

2. The Nexus Element

Coleman also argues that the warrant

affidavits did not establish probable cause

to believe that evidence related to the

crime would be found in the computer

tower, laptop, and cellphone recovered

from his car. As we explain below, we

disagree.

Because whether there was probable

cause turns on the facts discussed in each

warrant application, we begin with the

overlapping facts. According to the affidavits, Coleman packed his car in Providence

in the early hours of February 28, drove

out of state, and was stopped and arrested

by law enforcement later that day in Delaware. Shortly after the stop, officers found

Correia’s dead body in his car. Officers

recovered the computer tower, laptop, and

cellphone from the car,12 as well as various

other items, including long-handled loppers; a gas container and lighter; safety

glasses; work gloves; pliers; and disinfectant wipes.

[31] The affidavits described, based on

the officers’ experiences and training as

FBI Special Agents, the potential evidentiary value of each item to be searched.

For example, in his affidavits supporting

both the computer tower and laptop search

warrant applications, Special Agent Brendan Fogerty stated that it was likely that

these items contained evidence ‘‘of Coleman’s planning and/or execution of the kidnapping,’’ his plans to flee, and research

about ‘‘various means of cleaning, transporting, and disposing of a human body

12. Regarding the cellphone, the affidavit stated that Coleman provided the number associated with the recovered cellphone as his

home number during booking and that Coleman’s social media accounts were connected

to that cellphone. In light of this evidence, we

are not persuaded by Coleman’s argument

that there are no facts ‘‘from which to infer

that Coleman had this cellphone, or any cellphone, with him during the alleged crime.’’

25

and trace evidence.’’ As to the cellphone,

Special Agent Zukauskas stated that it

was likely to have evidence of the owner’s

‘‘daily activities’’ and, more specifically,

was likely used to ‘‘send or receive relevant emails and text messages; to set up or

access relevant websites; and/or communicate with witnesses.’’ Although we now

know that Coleman and Correia first met

on February 24, 2019, that fact was not

known when the warrant was issued on

March 12, 2019.

[32] Coleman argues that the cellphone, laptop, and computer tower affidavits include only general statements about

how people use those devices, and thus do

not sufficiently link those items either to

kidnapping or to the allegations in this

case. But ‘‘[d]irect evidence is not necessary to ground a probable cause determination where, as here, the import of circumstantial evidence is obvious.’’ United

States v. Adams, 971 F.3d 22, 33 (1st Cir.

2020). Each warrant application was premised on the fact that Coleman was fleeing

his home with a dead body and various

items that could be used to dispose of a

body and related evidence. In this context,

as the district court noted, the ‘‘obvious

inference from the fact that [Coleman]

took [these items] with him on his flight is

that there was something on [them] that

he wished to hide.’’ It was also reasonable

to infer that Coleman would have researched how to dispose of the body or

related evidence on each device based on

the agents’ statements in the affidavits.13

Even if he did not have that cellphone with

him at the time of the crime, there was a fair

probability that the cellphone had evidence

related to his planning or his flight.

13. Law enforcement sought and received

warrants for associated records (i.e., cellphone records from Coleman’s service provider and Google account records associated

with Coleman’s cellphone and email address)

Appendix A

25

26

149 FEDERAL REPORTER, 4th SERIES

Coleman also cites our decision in Roman to support his point that general observations about the use of electronic devices are not sufficient to establish the

nexus element. In Roman, we held that the

affidavit contained no evidence tying the

alleged crime to the place to be searched,

and that the government’s case ‘‘depend[ed] entirely on inferences made by

[the DEA agent], drawn largely from’’ testimony found to contain material misrepresentations and omissions. See 942 F.3d at

50. There was no comparable lack of evidence here, and no allegations that the

affidavit contained material misrepresentations and omissions.

C. Voir Dire

We now turn to Coleman’s claim related

to jury selection. Coleman requested that

the district court show all potential jurors

one of two educational videos about implicit bias. The court denied that request,

explaining that although the ‘‘concept underlying the video[s] is important,’’ it

would be better on balance to address

concepts of ‘‘implicit bias, fairness, and

listening to the evidence TTT orally, not

through [the videos.]’’

[33, 34] We review the district court’s

voir dire decisions for abuse of discretion.

See United States v. Parker, 872 F.3d 1, 6

(1st Cir. 2017). We reverse only if ‘‘our

review of the record leaves us with a definite and firm conviction that the court

on the basis that those records would contain

relevant communications and location data.

Coleman has not made an argument about

those warrants separate from his argument

about the warrants for his electronic devices.

For the same reasons we find the nexus element satisfied to justify a search of Coleman’s

electronic devices, we find the nexus element

satisfied to justify a search of the associated

records.

14. In Brown, we pointed to two cases as

examples of those circumstances: one ‘‘in-

below committed a clear error of judgment

in the conclusion it reached upon a weighing of the relevant factors.’’ Id. (quoting

United States v. Gelin, 712 F.3d 612, 621

(1st Cir. 2013)). We find no abuse of discretion here.

In some circumstances, the Constitution

requires the court to ask ‘‘special voir dire

question[s]’’ to address ‘‘[t]he possibility of

racial prejudice.’’ United States v. Brown,

938 F.2d 1482, 1485 (1st Cir. 1991).14 The

parties dispute whether this case presents

such circumstances. Coleman argues that

the district court erred in characterizing

this case as not ‘‘a particularly racially

charged crime.’’ He contends that race was

fundamental to the case because he is a

Black man who was tried before a jury

with no Black jurors, and his efforts to flee

the police and hide Correia’s body were

tied to his experiences as a Black man in

the U.S. who had been beaten by police

officers in the past. The government responds that because Correia and Coleman

were both Black, there was no interracial

perpetrator/victim dynamic, and that this

case did not raise any other particular risk

of racial prejudice. The government also

argues that the district court addressed

the issue of potential racial prejudice

through its jury instructions and the questions it posed to the jury, and that it

articulated valid reasons to decline to show

the videos that Coleman proffered.

volv[ed] a black civil rights activist whose

defense to a marijuana possession charge was

that he had been framed by local white police’’ and one ‘‘involv[ed] [the] sentencing of a

black defendant who had been convicted of a

capital offense’’ for killing a white storekeeper. 938 F.2d at 1485 (citing Ham v. South

Carolina, 409 U.S. 524, 93 S.Ct. 848, 35

L.Ed.2d 46 (1973), and Turner v. Murray, 476

U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27

(1986)).

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Cite as 149 F.4th 1 (1st Cir. 2025)

[35] The district court discussed the

importance of impartiality with all prospective jurors, including the potential for

racial prejudice. It informed the prospective jurors that both Coleman and Correia

were ‘‘African-American’’ and stressed that

Coleman ‘‘must be considered as an individual TTT, not according to his ethnicity or

race.’’ After providing that context, the

court asked the prospective jurors if they

‘‘have any feelings of any kind that might

affect [their] ability in any way to be fair

and impartial in the trial of this matter.’’

In previous cases, we have ruled that similar questions sufficiently addressed racial

bias. See Parker, 872 F.3d at 5-7; cf. United States v. Casanova, 886 F.3d 55, 59-60

(1st Cir. 2018) (on plain error review, holding similar questions posed to the jurors as

a group were sufficient ‘‘to safeguard [the

defendant’s] right to an impartial jury’’).

To be sure, the district court in Parker

asked a total of three questions during voir

dire targeting potential racial bias, at defense counsel’s request. See 872 F.3d at 56. Here, the district court asked only one

question, but it did so immediately after

addressing Coleman’s race and highlighting that the jury should guard against the

risk of racial bias influencing its decisionmaking. We cannot conclude that it was ‘‘a

clear error of judgment’’ for the district

court to address the issue of racial bias in

this manner, rather than by playing the

videos submitted by Coleman. Id. at 6.

[36] Coleman also argues that the district court’s statements that the videos

were ‘‘distracting,’’ ‘‘smug,’’ and ‘‘condescending’’ indicate an abuse of discretion.

We disagree with Coleman’s characterization of the record. Coleman takes the

court’s statements out of context: the court

acknowledged the ‘‘concept[s] underlying

the video [are] important’’ but decided to

address those concepts in a different way.

After the jury was empaneled, the court

27

provided an instruction that demonstrated

its recognition of the reality of prejudice,

including prejudice ‘‘that we may not even

be conscious of.’’ It stated:

As I’m sure you know, when we get into

issues of race or nationality or religion

or gender, things can be very problematic indeed. All of us do tend to think

of other people as being part of one or

more groups. We all do it to some extent. In a jury trial, that kind of thing,

again, can be unfair and that’s particularly dangerous if we’re talking about

things that are below the surface that

we don’t talk about openly or that we

may not even be conscious of.

I don’t need to tell you, I’m sure, that

the defendant should be judged based

on the evidence, not on his race or gender. But each of you should take extra

care to make sure you’re doing exactly

that, that you’re being as honest as you

can with yourselves. If you hear yourself

thinking inwardly that’s what a typical

man would do under these circumstances or, worse, a typical black man or

a typical wom[a]n would do this or a

typical black woman, stop yourself, catch

yourself, think about what you’re doing.

Are you making a decision based on the

evidence or something else?

I’m not saying it’s easy to overcome

your assumptions, again, the ones that

you’re not even thinking about, but it is

your duty and responsibility to be as fair

as you can and to decide the case based

on the evidence and not according to

generalized assumptions that you may

have.

Citing several law review articles, Coleman sought to have the district court specifically address implicit bias, arguing that

education can mitigate the impact of implicit bias and that such education should

cover that ‘‘implicit bias exists, it is normal, and it operates without awareness.’’

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149 FEDERAL REPORTER, 4th SERIES

The district court’s instruction did not use

the term ‘‘implicit bias,’’ but it addressed

the central idea Coleman urged the court

to highlight: that each juror should be

aware of prejudice ‘‘below the surface.’’

We conclude the district court did not

abuse its discretion in addressing potential

racial bias in this manner.

D. The District Court’s Evidentiary

Rulings

Coleman also challenges four of the district court’s evidentiary rulings. Namely,

(1) the denial of his pretrial motion to

preclude the government from using the

term ‘‘sexual assault’’; (2) the admission of

evidence regarding Correia’s plans to pick

up her daughter; (3) the exclusion of expert testimony by Dr. Jeffrey Fagan; and

(4) the exclusion of evidence of Correia’s

alleged prior sexual and violent conduct.

[37, 38] Generally, ‘‘[w]e review the

district court’s rulings on whether to admit

or exclude evidence, including rulings on

motions in limine, for abuse of discretion.’’

United States v. Brown, 510 F.3d 57, 66

(1st Cir. 2007). ‘‘[A]n abuse of discretion

occurs when a relevant factor deserving of

significant weight is overlooked, or when

an improper factor is accorded significant

weight, or when the court considers the

appropriate mix of factors, but commits a

palpable error of judgment in calibrating

the decisional scales.’’ Id. at 67 (quoting

United States v. Frabizio, 459 F.3d 80, 91

(1st Cir. 2006)). We review de novo Coleman’s constitutional claim that the court’s

15. We bypass the government’s point that

Coleman did not object to the use of the term

‘‘sexual assault’’ during trial. As the government acknowledges, although a defendant

must ordinarily ‘‘object to particular evidence

at trial in order to preserve his appellate

rights,’’ ‘‘when a defendant raises such an

objection before trial by a motion in limine

and the district court’s rejection of the defendant’s position is unconditional, the defen-

exclusion of evidence about Correia’s prior

conduct infringed his right to present a

defense. See United States v. Brown, 669

F.3d 10, 19 (1st Cir. 2012).

We conclude that the district court did

not abuse its discretion as to any of the

challenged evidentiary rulings. We further

determine that excluding evidence of Correia’s prior conduct did not infringe Coleman’s right to present a defense.

1. Denial of Motion to Preclude the

Government from Using the

Phrase ‘‘Sexual Assault’’

[39] Coleman contends that the district

court abused its discretion when it denied

his motion to preclude the government and

its witnesses from using the term ‘‘sexual

assault’’ at trial. He argues that allowing

the government to use this term was unfairly prejudicial and invaded the province

of the jury to decide whether Coleman had

in fact kidnapped Correia for sexual gratification.15

[40] In its ruling on Coleman’s motion,

the district court explained that the government planned to introduce evidence

that sexual intercourse occurred and that,

‘‘under the circumstances[,] it [was] not

unfair for the government to use the term

‘sexual assault.’ ’’ The court pointed to

Correia’s ‘‘very high level of intoxication,

at least measured by her TTT blood alcohol

level and [the fact] that a violent struggle

took place in the car.’’ In light of this

evidence, the court concluded that the

term ‘‘sexual assault’’ was not unfair or

dant’s objection may be deemed preserved

even if not raised again at trial.’’ United

States v. Encarnacion, 26 F.4th 490, 503-504

(1st Cir. 2022) (citations omitted). We need

not decide whether the rejection of the defendant’s position was unconditional here, because we conclude that the district court did

not abuse its discretion in allowing the government to use the term ‘‘sexual assault.’’

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U.S. v. COLEMAN

Cite as 149 F.4th 1 (1st Cir. 2025)

inflammatory. We see no error of judgment in this analysis.

[41] Nor do we think the district

court’s ruling invaded the province of the

jury. Coleman argues that by using the

term ‘‘sexual assault,’’ the government and

its witnesses ‘‘presented nonconsensual sex

as a fact’’ and this amounted to offering an

opinion on the ‘‘ultimate issue[ ]’’ of Coleman’s purpose, an element of the crime.

The only witnesses to use the term ‘‘sexual

assault’’ were Dr. Vershvovsky and a forensic examiner, who both used the phrase

in their discussions of the ‘‘sexual assault

kit’’ samples collected from Correia’s body.

Dr. Vershvovsky also testified that the

lack of injury to Correia’s vaginal area did

not rule out that sexual assault occurred.

Each side argued as to whether the evidence was consistent with sexual assault.

More significantly, whether sexual assault

occurred was not the ultimate issue before

the jury. Rather, the ultimate issue was

whether Coleman kidnapped Correia for

sexual gratification. Based on this record,

we conclude that neither the government

nor its witnesses presented sexual assault

as a fact, and that it remained up to the

jury to decide the ultimate issue of whether the purpose element was satisfied.

2. Admission of Testimony Regarding

Correia’s Plans to Pick Up Her

Daughter

The government filed its own motion,

seeking to introduce at trial statements

Correia made to others about her plans for

the weekend of February 23, 2019, including statements to her case worker at the

shelter where she lived and to her daughter’s grandmother. The government argued that these statements were non-hearsay evidence of Correia’s state of mind and

intent to pick up her daughter and return

to the shelter by late afternoon on Sunday,

February 24. Coleman opposed the motion,

29

contending that Correia’s statements were

not relevant under Federal Rule of Evidence 401 and, even if they were, the court

should exclude them under Federal Rule

of Evidence 403 because the risk of unfair

prejudice substantially outweighed their

probative value.

The district court granted the government’s motion, subject to certain limits.

‘‘[I]n order to avoid any potential improper

appeal to sympathy or bias,’’ the court

prohibited the government from ‘‘elicit[ing]

information concerning (1) the nature of

the shelter in which the victim was residing, or the reason she was residing there,

or (2) the name of the victim[’]s child, or

any other details concerning the child.’’

The trial witnesses testified within these

limits. Correia’s case worker, Loveth Anumele, testified that Correia lived in a shelter in Lynn with her daughter and that

Correia had received a pass to be away

from the shelter until 5:00 p.m. on Sunday,

February 24. Correia’s daughter’s grandmother, Rosina Castro, testified that she

was watching her granddaughter that

weekend and that Correia had arranged to

pick her up on Sunday.

Coleman argues that the district court

abused its discretion by admitting Anumele’s and Castro’s testimony because

their testimony ‘‘had no relevance but was

calculated to make Correia more sympathetic.’’ ‘‘Evidence is relevant as long as it

has some tendency to make a fact of consequence more or less probable.’’ See United

States v. Kilmartin, 944 F.3d 315, 335 (1st

Cir. 2019) (citing Fed. R. Evid. 401).

[42] Here, Correia’s Sunday plans

were relevant because they made it more

likely that she intended to stay in Massachusetts after she left Venu, and to return

to Mondesir’s apartment, where she had

left her housekeys. In the mosaic of this

case, the statements thus could have

helped the jury evaluate whether Coleman

Appendix A

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149 FEDERAL REPORTER, 4th SERIES

deceived Correia by offering her a ride to

Mondesir’s apartment, as the government

claimed. The district court’s instruction

that the government omit details about

Correia’s daughter and about the shelter

where they lived mitigated the potential

for unfair prejudice.16 Especially because

the jury had only circumstantial evidence

about what transpired during the critical

minutes between 2:16 a.m. and Correia’s

death, the district court did not abuse its

discretion in ruling that the risk of unfair

prejudice did not substantially outweigh

the probative value of the admitted evidence.17

Coleman cites our opinion in Kilmartin

to support his claim that, even if the evidence were relevant, the district court

should have excluded it under Rule 403;

however, that case is distinguishable. In

Kilmartin, we held that the district court

abused its discretion when it admitted testimony from several of the defendants’ alleged victims, as well as copious emails

between the defendant and the victims, as

evidence of a fraud scheme that targeted

suicidal individuals. See 944 F.3d at 335-37.

The ‘‘testimony went into excruciating detail about the TTT victims’ personal lives,

medical issues, histories of depression, earlier suicide attempts, suicidal motivations,

and the like.’’ Id. at 335. We described the

emails as ‘‘likely to evoke an emotional

response in even the most hardened individuals.’’ Id. at 337. Finding that this evi16. Correia lived in an emergency assistance

housing shelter for victims of domestic violence.

17. Coleman argues that Correia’s Sunday

plans were not relevant because her plans

were not incompatible with accepting a ride

from him and having consensual sex with

him. We certainly do not mean to overstate

the probative value of the admitted testimony.

That said, given that there is no direct evidence of what Correia and Coleman said to

each other outside of Venu, we conclude that

her Sunday plans made it at least somewhat

dence ‘‘added virtually nothing of legitimate value to the government’s case,’’ we

explained that ‘‘just because evidence may

have a smidgen of probative value, that

bare fact does not give the government

free rein to capitalize upon its emotionally

laden content.’’ Id. By contrast, Anumele’s

and Castro’s trial testimony was brief and

specifically framed to avoid details that

would stir the jury’s emotions.

3. Exclusion of Dr. Fagan’s

Expert Testimony

To support his argument that he fled the

police out of fear, rather than consciousness of guilt, Coleman sought to introduce

two types of evidence at trial: facts indicating that police had assaulted him in 2013

and expert testimony by Dr. Fagan. In

describing Dr. Fagan’s testimony, Coleman explained that he intended to call him

as an expert who would ‘‘explain empirical

studies showing that the impacts of threatening police interactions TTT include fear

of bodily harm and possibly death.’’

The government urged the district court

to exclude both types of evidence. As to

Dr. Fagan’s testimony, it argued that

Coleman’s expert disclosure was insufficient under Federal Rule of Criminal Procedure 16(b)(1)(C), and thus neither the

court nor the government could assess

whether the testimony met the requiremore probable that their brief conversation

was about him giving her a ride to Mondesir’s

apartment. The government’s theory was that

this offer was deceptive because his intent

was to have sex with Correia, as we discuss in

more detail below. See infra Section II.G.1.i.

And, although Coleman argues that evidence

about Correia’s Sunday plans was not relevant because he did not contest her intent to

return home on Sunday, he did arguably contest that was her intent when he elicited testimony from Hiltz that Correia would sometimes ‘‘go off with someone for a few days.’’

Appendix A

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U.S. v. COLEMAN

Cite as 149 F.4th 1 (1st Cir. 2025)

ments of Federal Rule of Evidence 702

(the expert witness rule) and Daubert v.

Merrell Dow Pharmaceuticals, 509 U.S.

579, 113 S.Ct. 2786, 125 L.Ed.2d 469

(1993), which set the standard for evaluating if an expert’s methodology is reliable.

The district court permitted Coleman to

introduce evidence of the 2013 assault by

the police, but it excluded Dr. Fagan’s

testimony under Rules 702 and 403 of the

Federal Rules of Evidence, as well as Rule

16 of the Federal Rules of Criminal Procedure. Coleman contends that the court

abused its discretion in excluding Dr. Fagan’s testimony.

We begin by reviewing the district

court’s conclusion that Dr. Fagan’s opinion

testimony was inadmissible under Federal

Rule of Evidence 702. We note that the

court’s analysis of Rule 702 overlapped

with its analysis under Federal Rule of

Criminal Procedure 16, as the court explained that the insufficient disclosure

made it impossible to assess the reliability

of Dr. Fagan’s methodology.

[43] Under Rule 702, a qualified expert

may testify in the form of an opinion if

four requirements are met:

(a) the expert’s scientific, technical, or

other specialized knowledge will help the

trier of fact to understand the evidence

or to determine a fact in issue;

(b) the testimony is based on sufficient

facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert’s opinion reflects a reliable application of the principles and

methods to the facts of the case.

18.

The summary stated:

Professor Fagan may testify that the impacts upon Black persons of involuntary

police confrontation, false accusations by

police, and threatening police behavior extend beyond liberty interests to include the

31

Fed. R. Evid. 702. And under Daubert,

courts consider the following nonexclusive

factors to determine whether an expert’s

methodology is reliable: (1) ‘‘whether [the

theory or technique] can be (and has been)

tested’’; (2) ‘‘whether the theory or technique has been subjected to peer review

and publication’’; (3) ‘‘the known or potential rate of error’’ of a particular scientific

technique; and (4) whether the methodology has been generally accepted by the

relevant scientific community. 509 U.S. at

593-94, 113 S.Ct. 2786. Coleman had the

burden of demonstrating the admissibility

of Dr. Fagan’s expert opinion. See United

States v. Tetioukhine, 725 F.3d 1, 6 (1st

Cir. 2013).

Before issuing its ruling on Dr. Fagan’s

testimony, the district court put Coleman

on notice at a motion hearing and at the

pretrial conference that it had concerns

with Dr. Fagan’s minimal expert disclosure. That initial disclosure provided only

Dr. Fagan’s curriculum vitae and a twosentence description of his testimony. The

court made clear that Dr. Fagan’s ‘‘credentials and his opinion with nothing else in

between’’ were insufficient to ‘‘indicate

what the basis of [his] opinion is.’’ It also

had ‘‘concerns about the methodology from

a Daubert standpoint.’’ In response to the

court’s concerns, Coleman provided the

government with a supplemental disclosure. He again included only a two-sentence description of Dr. Fagan’s testimony.18 He also specified the 17 articles that

Dr. Fagan was relying on to form his

opinion and provided a one-sentence summary of each article.

fear of grievous bodily harm and possibly

death. Professor Fagan may also testify that

fear, anxiety, and impaired perception and

social judgement occurs so that flight may

be unrelated to consciousness of guilt.

Appendix A

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149 FEDERAL REPORTER, 4th SERIES

[44] On this record, Coleman has not

demonstrated that the district court

abused its discretion in excluding Dr. Fagan’s testimony under Rule 702. Although

the court put Coleman on notice of its

concerns that he had insufficiently explained the basis of Dr. Fagan’s opinion,

Coleman provided only a minimal supplemental disclosure. There was no expert

report or affidavit from Dr. Fagan explaining the reasons for his opinion or describing accepted methodologies in his field or

the methodologies of the disclosed articles.

As the district court explained, it was ‘‘impossible for [the court] to assess even what

the precise opinion is, what the methodology is.’’ As to the disclosure of ‘‘various

studies,’’ the district court had no way to

‘‘know how to assess them’’ because it did

not know ‘‘how they were conducted,’’

‘‘what data they’re based on, what principles they involved, whether they were reliable principles, reliably applied and all the

rest of it.’’19

Coleman attempts to transform the district court’s ruling into a rejection of social

science research generally, but the court

made no such sweeping ruling. Rather, it

concluded, based on the particular expert

disclosure before it, that Coleman failed to

meet his burden to show that Dr. Fagan’s

opinion was based on valid and reliable

studies accepted in his field.

In light of the thin disclosure, the district court did not abuse its broad discretion in exercising its ‘‘gate-keeping role’’ to

ensure an expert’s testimony ‘‘rests on a

reliable foundation’’ under Rule 702 and

19. Our own review of Dr. Fagan’s disclosure

confirms the district court’s assessment that

the limited disclosure does not explain how

Dr. Fagan relied on various articles to form

an opinion potentially relevant to this case. It

was Coleman’s burden to connect the dots.

20. Because the relevant motions and proffers

were filed under seal in the district court and

Daubert. United States v. Vargas, 471

F.3d 255, 261 (1st Cir. 2006) (citation omitted). Because we find no error in the district court’s ruling to exclude Dr. Fagan’s

testimony under Rule 702 and Daubert, we

do not reach its ruling that Dr. Fagan’s

testimony also was inadmissible under

Rule 403.

4. Exclusion of Specific Instances

of Correia’s Prior Conduct

Coleman filed two motions to introduce

at trial evidence of Correia’s prior conduct,

relying on Federal Rules of Evidence

404(b) and 405(a)-(b), which govern the use

of character evidence, and his constitutional right to ‘‘a meaningful opportunity to

present a complete defense.’’20 Holmes v.

South Carolina, 547 U.S. 319, 324, 126

S.Ct. 1727, 164 L.Ed.2d 503 (2006) (quoting Crane v. Kentucky, 476 U.S. 683, 690,

106 S.Ct. 2142, 90 L.Ed.2d 636 (1986)). One

motion related to Correia’s prior sexual

behavior. The other related to what Coleman claimed was Correia’s character for

violence, particularly when she was drinking.21 The arguments in the two motions

overlapped because one of the specific instances of violence that Coleman sought to

introduce related to Correia’s prior sexual

conduct -- we refer to that proffered evidence as the ‘‘Atlanta incident.’’ Coleman

claimed that this evidence was necessary

to rebut the government’s theory that

Coleman kidnapped Correia for sexual

gratification and to support his theory that

they had consensual sex, Correia later bethe parties’ briefing about these motions was

filed under seal in this court, we do not discuss the specifics of the alleged prior conduct.

21. The first pretrial motion addressed several

categories of character evidence. We focus

only on the character evidence claim that

Coleman pursues on appeal.

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U.S. v. COLEMAN

Cite as 149 F.4th 1 (1st Cir. 2025)

came violent, and an unexpected struggle

ensued that caused her death.

The district court allowed Coleman to

attempt to elicit ‘‘reputation testimony’’

from Mondesir that Correia ‘‘engaged in

acts of prostitution as needed,’’ on the

ground that such evidence would further

Coleman’s right to a fair trial. It also

allowed in reputation testimony about

Correia’s alleged violence when drinking,

as well as testimony about at least one

specific instance of violence.22 But the

court excluded evidence of specific instances of Correia’s prior sexual behavior, including the Atlanta incident, under Federal Rules of Evidence 412 and 403.

As a reminder, we review the district

court’s evidentiary rulings for abuse of

discretion. See Brown, 510 F.3d at 66. We

review Coleman’s preserved constitutional

challenge de novo. See Brown, 669 F.3d at

19.

i. Exclusion of Correia’s Prior

Sexual Conduct

Coleman argues that the district court’s

ruling excluding specific instances of Correia’s prior sexual behavior was wrong, both

under the relevant rules of evidence and

because it violated his Sixth Amendment

right to present his defense. See United

States v. Rosario-Pérez, 957 F.3d 277, 293

(1st Cir. 2020) (‘‘The Sixth Amendment

guarantees criminal defendants the right

to present a defense TTTT’’ (quoting United

States v. Bartelho, 129 F.3d 663, 673 (1st

Cir. 1997))); see also Holmes, 547 U.S. at

324, 126 S.Ct. 1727. In particular, he identifies three specific pieces of evidence that

he contends should have been admitted: (1)

testimony about the Atlanta incident; (2)

22. We use the term ‘‘violence’’ to be consistent with Coleman’s pretrial motion. At trial,

however, the relevant witness testified that

Correia became ‘‘messy’’ when drunk but denied that Correia started fights. She also testi-

33

text messages between Correia and Mondesir about her activity on February 23,

2019; and (3) documents related to Correia’s sexual conduct in 2013 and 2014.

We begin by evaluating the district

court’s ruling excluding such evidence under Federal Rule of Evidence 412. Subject

to limited exceptions, Rule 412 provides

that ‘‘evidence offered to prove that a victim engaged in other sexual behavior[ ] or

evidence offered to prove a victim’s sexual

predisposition’’ ‘‘is not admissible in a TTT

criminal proceeding involving alleged sexual misconduct.’’ Fed. R. Evid. 412(a)-(b).

Coleman intended to introduce evidence

of Correia’s prior sexual conduct to argue

that she consented to have sex with him.

In his view, the excluded evidence was

essential to rebut the government’s sexual

assault theory because it helped to explain

why Correia may have provided consent.

But as the district court correctly concluded, the plain language of Rule 412

states that evidence of Correia’s ‘‘other

sexual behavior’’ was not admissible at trial. See Fed. R. Evid. 412(a). The commentary to Rule 412 confirms that conclusion.

See In re Kirkland, 75 F.4th 1030, 1043

(9th Cir. 2023) (‘‘We may look to the advisory committee’s notes because they ‘provide a reliable source of insight into the

meaning of a rule.’ ’’ (quoting United

States v. Vonn, 535 U.S. 55, 64 n.6, 122

S.Ct. 1043, 152 L.Ed.2d 90 (2002))); Tome

v. United States, 513 U.S. 150, 167-68, 115

S.Ct. 696, 130 L.Ed.2d 574 (1995) (Scalia,

J., concurring) (‘‘[T]he Notes are TTT ordinarily the most persuasive’’ authority on

the meaning of the rules, although they

cannot change the meaning of the text).

Indeed, the commentary specifically confied that Correia attempted to break up a fight

when asked to recount a specific instance in

which Correia was allegedly fighting when

drunk.

Appendix A

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149 FEDERAL REPORTER, 4th SERIES

templates that Rule 412 could apply in a

kidnapping case. It states:

The strong social policy of protecting a

victim’s privacy and encouraging victims

to come forward to report criminal acts

is not confined to cases that involve a

charge of sexual assault. The need to

protect the victim is equally great when

a defendant is charged with kidnapping,

and evidence is offered, either to prove

motive or as background, that the defendant sexually assaulted the victim.

Fed. R. Evid. 412 advisory committee’s

note to 1994 amendment. Thus, the evidence was clearly inadmissible under Rule

412 unless it fit within an exception.

[45] One of the limited exceptions to

Rule 412 in criminal cases is for ‘‘evidence

whose exclusion would violate the defendant’s constitutional rights.’’ Fed. R. Evid.

412(b)(1)(C). ‘‘The constitutional exception

under Rule 412(b)(1)(C) protects, in part,

defendants’ ‘constitutional right under the

Fifth and Sixth Amendments to introduce

evidence in their defense.’ ’’ United States

v. Brandon, 64 F.4th 1009, 1016 (8th Cir.

2023) (quoting United States v. Pumpkin

Seed, 572 F.3d 552, 559-60 (8th Cir. 2009)),

cert. denied, ––– U.S. ––––, 144 S. Ct. 514,

217 L.Ed.2d 269 (2023). Coleman argues

that the district court should have applied

this exception because evidence of Correia’s prior sexual conduct ‘‘countered the

government’s narrative of a planned sexual

assault and made Coleman’s theory of defense more likely.’’

[46] We have recognized that the evidentiary rules must give way to the Constitution, when needed. See Rosario-Pérez, 957 F.3d at 294 (‘‘Where the stakes

are very high, it is a court’s job to make

sure that the rules themselves are not

made an instrument of injustice.’’). That

said, the constitutional right to ‘‘a meaningful opportunity to present a complete

defense’’ does not guarantee Coleman ‘‘an

unfettered right to offer testimony that is

incompetent, privileged, or otherwise [inadmissible] under standard rules of evidence.’’ Brown, 669 F.3d at 19 (first quoting Brown v. Ruane, 630 F.3d 62, 71 (1st

Cir. 2011); then quoting Taylor v. Illinois,

484 U.S. 400, 410, 108 S.Ct. 646, 98

L.Ed.2d 798 (1988)); see also United

States v. Pires, 642 F.3d 1, 14 (1st Cir.

2011) (‘‘[T]he right to present a defense

does not trump valid rules of evidence.’’).

In prior cases, we have used the relative

probative value of evidence as a benchmark for whether the Constitution requires its admission in the Rule 412 context, holding that a court need not admit

evidence that is marginally relevant. See

United States v. Gemma, 818 F.3d 23, 34

(1st Cir. 2016) (evidence of a trafficking

victim’s prior prostitution ‘‘is either entirely irrelevant or of such slight probative

value in comparison to its prejudicial effect

that a decision to exclude it would not

violate [the defendant’s] constitutional

rights’’); Greaux-Gomez, 52 F.4th at 436

(constitutional exception to Rule 412 did

not apply, even assuming evidence of the

victim’s prior sexual conduct was relevant

for impeachment, because ‘‘any probative

value of the evidence was substantially

outweighed by the danger of unfair prejudice’’). Our sister circuits have likewise

concluded that the exclusion of evidence

under Rule 412 does not violate a defendant’s constitutional rights when that evidence has little or no relevance or when its

relevance is outweighed by the risk of

unfair prejudice. See, e.g., United States v.

Elbert, 561 F.3d 771, 777 (8th Cir. 2009);

United States v. Haines, 918 F.3d 694, 697

(9th Cir. 2019); United States v. Powell,

226 F.3d 1181, 1199 (10th Cir. 2000).

[47] Here, the probative value of specific instances of Correia’s prior sexual

conduct was minimal. Coleman argued that

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the excluded evidence was critical in part

because it went to ‘‘whether there was

consent, when there was consent, and what

that looked like.’’ But the excluded evidence concerned situations that were

meaningfully different from the interaction

between Coleman and Correia, either because the prior situations involved individuals Correia already knew, rather than a

stranger like Coleman, or because they

occurred when Correia was a juvenile. By

comparison, the risk of prejudice was significant. Rule 412 exists in part because

stereotypes about sexually active women

are prevalent. See Fed. R. Evid. 412 advisory committee’s note to 1994 amendment;

see also Gemma, 818 F.3d at 35 (evidence

offered to show a victim acted consistently

with prior sexual behavior ‘‘falls squarely

within a class deemed so extremely prejudicial as to warrant special treatment under the Federal Rules of Evidence’’).23

The parties discuss three decisions from

the U.S. Court of Appeals for the Eighth

Circuit addressing the constitutional exception to Rule 412 in criminal cases, but

none of those decisions suggest that the

district court erred in excluding the evidence at issue here. Two cases involved

aggravated sexual assault charges, where

the victims had suffered recent sexual assaults by other perpetrators. In United

States v. Bear Stops, the Eighth Circuit

23. We note that the excluded evidence was

not ‘‘evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct,’’ which

can be ‘‘offered by the defendant to prove

consent’’ under another exception to Rule

412. Fed. R. Evid. 412(b)(1)(B) (emphasis

added).

24. At the time that Bear Stops was decided,

Rule 412 had an exception for evidence of

‘‘past sexual behavior with persons other than

the accused’’ ‘‘offered by the accused on the

issue of whether the accused was or was not

the source of injury.’’ 997 F.2d at 454 n.2

(citing Fed. R. Evid. 412(b)(2)(A)). The Eighth

35

found that evidence of the previous sexual

assault was necessary to provide an alternative explanation for the victim’s bloody

underwear, which was found close in time

to the previous assault, and to provide

context for testimony that the victim was

experiencing symptoms of sexual abuse.

See 997 F.2d 451, 454-457 (8th Cir. 1993).24

Similarly, in United States v. Zephier, the

Eighth Circuit held that admitting evidence of a prior sexual assault was necessary to counter expert testimony that the

victim’s behavioral issues were ‘‘consistent

with how rape victims often respond’’ to

rape. 989 F.3d 629, 636 (8th Cir. 2021).

The third case, United States v. Brandon, is most relevant here, and the Eighth

Circuit held that the district court did not

need to admit evidence of the victim’s prior prostitution under Rule 412’s constitutional exception. See 64 F.4th at 1019. In

Brandon, the defendant sought to offer

evidence of the victims’ prior prostitution

as an ‘‘alternative theory of the case to

explain’’ evidence matching his DNA to

one of the victim’s vaginal swabs. See id.

at 1015. ‘‘Given the speculative nature of

[the defendant’s] theory,’’ the Eighth Circuit found that the district court had not

erred by excluding the evidence of prior

prostitution. Id. at 1019. It reasoned that

the exclusion ‘‘was not arbitrary or disproCircuit declined to apply the source-of-injury

exception because it determined that the constitutional exception applied and prior Eighth

Circuit case law limited the injury exception

to cases in which emotional injuries were

accompanied by ‘‘cognizable physical consequence.’’ Id. (quoting United States v. Shaw,

824 F.2d 601, 603 n.2 (8th Cir. 1987)). The

1994 Amendments to Rule 412 broadened

that exception, allowing the defendant to offer

‘‘evidence of specific instances of a victim’s

sexual behavior TTT to prove that someone

other than the defendant was the source of

semen, injury, or other physical evidence.’’

Fed. R. Evid. 412(b)(1)(A) (emphasis added).

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149 FEDERAL REPORTER, 4th SERIES

portionate to the purposes served by exclusion, including avoiding further embarrassment and harassment of the victims,

avoiding possible confusion of the issues

by the jury, and preventing a ‘thinly-veiled

attack on [the victims’] general credibility.’ ’’ Id. (quoting Pumpkin Seed, 572 F.3d

at 560).

Whereas the defendants in Bear Stops

and Zephier sought to introduce evidence

that was directly related to who was responsible for the sexual assaults on the

victims, the defendant in Brandon sought

to introduce evidence that would bolster a

highly speculative theory for why the evidence of sexual contact between him and

the victim did not demonstrate an ‘‘assault’’ at all. Coleman likewise sought to

introduce evidence of Correia’s prior sexual conduct to bolster his theory that his

sexual contact with Correia was consensual, and accepting his theory required the

jury to make several inferential leaps. Given the narrowness of the exceptions to

Rule 412, the district court properly excluded that evidence.

Looking beyond the Rule 412 context,

Coleman cites our prior decisions in Rosario-Pérez and United States v. MulinelliNavas, 111 F.3d 983 (1st Cir. 1997), for the

proposition that he had the constitutional

right to rebut the government’s argument

that he sexually assaulted Correia. But

neither of those cases presented the question of whether the Constitution requires

otherwise inadmissible evidence to be admitted to rebut the government’s theory at

trial. And, like in Bear Stops and Zephier,

the excluded evidence in those cases directly related to who was responsible for

the alleged crime. In Rosario-Pérez, we

25. The government had been allowed to introduce testimony that the defendant shot and

killed ‘‘Teton,’’ a drug seller that reported to

the defendant, as evidence to satisfy the overt

act element of the charged drug conspiracy.

found that the district court had erred in

making two of its evidentiary rulings, both

of which related to evidence that someone

other than the defendant had shot and

killed a victim.25 See 957 F.3d at 290-94.

Having found both rulings independently

erroneous, we determined that the cumulative prejudicial effect required reversal

and a new trial. See id. at 294. In that

context, we explained that ‘‘under the Constitution or, failing that, the court’s supervisory power to make the rules of evidence

just and fair in application, [the defendant]

must be permitted to offer evidence to

show that he did not commit the murder.’’

Id. In Mulinelli-Navas, we held that the

district court had erroneously prevented

the defense from asking certain questions

on cross-examination, which would have

supported the defendant’s theory that

someone else was responsible for the fraud

with which she was charged. See 111 F.3d

at 991-92. We explained that the district

court had exceeded its power to limit

cross-examination and violated the defendant’s Sixth Amendment right to confrontation by preventing the defendant from

introducing ‘‘any testimony to support

[her] theory of defense.’’ Id. at 992. Neither case suggests that the Constitution

requires the admission of marginally probative and otherwise inadmissible evidence.

[48] Because all the proffered evidence

was inadmissible under Rule 412, we do

not reach the district court’s alternative

ruling excluding the evidence under Rule

403. We also do not need to reach Coleman’s argument that the proffered evidence about the Atlanta incident was admissible under Rules 404(b) and 405(b). As

See Rosario-Pérez, 957 F.3d at 289. The excluded testimony was offered to show that

someone else was responsible for Teton’s

murder. See id. at 290.

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37

the government points out, the commentary to the rules makes clear that ‘‘[e]vidence, which might otherwise be admissible under Rules TTT 404(b) [and] 405 TTT

must be excluded if Rule 412 so requires.’’

Fed. R. Evid. 412 advisory committee’s

note to 1994 amendment; see also Fed. R.

Evid. 404 advisory committee’s note to the

2000 amendment (noting the amendment

does not affect ‘‘the standards for proof of

character by evidence of other sexual behavior or sexual offenses under Rules 412415.’’).26

Castro incident. Additionally, although

Coleman filed a proffer regarding the text

messages and the Atlanta incident and a

supplemental memorandum to admit medical documents that he claimed showed

Correia’s violent character, we see nothing

in the record to indicate that he submitted

a similar motion related to the incident

between Correia and Castro. Because

Coleman failed to preserve this issue at

the district court, we do not reach it on

appeal. See Zhou v. Desktop Metal, Inc.,

120 F.4th 278, 287-88 (1st Cir. 2024).

ii. Exclusion of Correia’s Prior

Acts of Violence

E. The District Court’s Other

Trial Rulings

In his pro se brief, Coleman also argues

that the district court erroneously excluded evidence of an altercation between

Correia and the father of her child, Miguel

Castro. He contends that this evidence

supported his theory that Correia initiated

a fight with him in his car, resulting in her

death.

Coleman raises two additional challenges to the district court’s rulings during

trial. First, he appeals the court’s denial of

his motion for a mistrial over Dr. Vershvovsky’s testimony. Second, he argues that

the court made multiple errors in how it

treated Mondesir’s testimony towards the

end of trial. For example, he contends that

the court should not have permitted Mondesir to invoke her Fifth Amendment right

not to testify and should have allowed him

to question her about some of her previous

statements. In his view, the cumulative

impact of these errors amounted to a violation of his Sixth Amendment right to present a complete defense.

[49] After carefully reviewing the record, we conclude that Coleman never attempted to introduce this evidence. The

district court initially deferred ruling on

Coleman’s pretrial motion related to Correia’s alleged character for violence. During

the trial, it allowed in ‘‘opinion evidence

concerning her propensity for violence’’

but indicated it was still deciding whether

to allow in ‘‘specific acts of violence.’’ In

response, Coleman argued that Mondesir

should be allowed to testify about certain

texts and the Atlanta incident because that

evidence was admissible. He did not mention the incident between Correia and Castro. Later discussions of the outstanding

evidentiary issues also did not touch on the

26. Coleman also argues that testimony about

the Atlanta incident could have come in without reference to the sexual conduct. But he

has developed no argument about its relevance to his defense without those details.

[50, 51] We review the district court’s

ruling to deny Coleman’s motion for a

mistrial and to exclude evidence for abuse

of discretion. See Brown, 510 F.3d at 66;

United States v. Apicelli, 839 F.3d 75, 86

(1st Cir. 2016). ‘‘ When a district court

rules favorably on a witness’s invocation of

h[er] Fifth Amendment right, we [also]

review its ruling for abuse of discretion.’’

Thus, we deem this argument waived. See

Zannino, 895 F.2d at 17 (‘‘[I]ssues adverted to

in a perfunctory manner, unaccompanied by

some effort at developed argumentation, are

deemed waived.’’).

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149 FEDERAL REPORTER, 4th SERIES

United States v. Forty-Febres, 982 F.3d

802, 807 (1st Cir. 2020). We review Coleman’s other constitutional challenges de

novo. See Brown, 669 F.3d at 19.

After careful consideration, we find no

error or abuse of discretion in the district

court’s rulings on these issues.

1. Dr. Vershvovsky’s Testimony

Coleman appeals the denial of his motion for a mistrial in response to Dr.

Vershvovsky’s testimony that Correia was

alive when Coleman carried her body into

his lobby in the early hours of Sunday,

February 24.

[52, 53] ‘‘Declaring a mistrial is a last

resort, only to be implemented if the taint

is ineradicable, that is, only if the trial

judge believes that the jury’s exposure to

the evidence is likely to prove beyond realistic hope of repair.’’ Apicelli, 839 F.3d at

86 (quoting United States v. TrinidadAcosta, 773 F.3d 298, 306 (1st Cir. 2014)).

We consider three non-exhaustive factors

in making this determination: ‘‘1) whether

an appropriate curative instruction was issued, 2) whether the judicial response was

timely, and 3) whether appellants successfully rebutted the presumption that the

jury followed the judge’s instructions.’’ Id.

(quoting United States v. Pagán-Ferrer,

736 F.3d 573, 586 (1st Cir. 2013)).

We begin by setting out the context for

Dr. Vershvovsky’s testimony. Before trial,

the government disclosed that it would call

Dr. Vershvovsky, the medical examiner

who performed the autopsy on Correia’s

body. It also disclosed that Dr. Vershvovsky would opine that Correia’s death resulted from strangulation and that ‘‘it

[was] not possible to determine with precision the date or time of Ms. Correia’s

death.’’ At trial, Dr. Vershvovsky testified

as follows:

Q: When you viewed the video of Ms.

Correia being dragged inside the building, were you able to make a determination as to whether she was alive or dead

at that point?

A: I think she was alive.

Q: What is the basis for that opinion?

A: Because at first she has absolutely no

injuries. I think she was intoxicated but

alive.

Coleman made a contemporaneous objection to Dr. Vershvovsky’s unanticipated

testimony, which the court overruled.

Coleman then asked to be heard at the end

of the government’s direct examination.

He explained that the government had not

disclosed that Dr. Vershvovsky would testify that Correia was still alive while she

was in his apartment, and, as a result, he

was not prepared with rebuttal testimony

on this issue. The government admitted

that it too was surprised by this aspect of

Dr. Vershvovsky’s testimony, but that the

testimony did not contradict her expert

disclosure. The government further argued

that Dr. Vershvovsky ‘‘is subject to crossexamination on that topic’’ and that there

was still time for the defense to identify

and present ‘‘an additional expert.’’

The district court agreed with Coleman

that this aspect of Dr. Vershvovsky’s testimony impermissibly exceeded the scope of

her expert disclosure and struck that testimony when the jury returned from its

break. The court also provided a curative

instruction. The government did not object

to striking the testimony or to the curative

instruction. Unsatisfied with this remedy,

Coleman moved for a mistrial on the basis

that the testimony was so prejudicial that

a curative instruction was insufficient. The

court denied that motion.

[54] We find no abuse of discretion in

the district court’s ruling to deny a mistrial over Dr. Vershvovsky’s testimony. That

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ruling is sound under all three factors we

consider in such circumstances. See Apicelli, 839 F.3d at 86. To begin, the court

issued a curative instruction, stating:

Before we begin the cross-examination,

the witness issued or made a statement

concerning whether the victim was alive

or dead at the moment that she was

taken out of the car and into the apartment shown on the video.

I am going to strike that from the record and instruct you to disregard it. And

when I say disregard it, that means it’s

not part of the evidence in this case, that

you may not consider it in any way

directly or indirectly in your consideration of the evidence in this case.

As to the substance of the instruction,

Coleman’s only argument on appeal is that

the court did not explain why it struck the

testimony, leaving potential for confusion.

But Coleman never asked the court to

include an explanation. Cf. Apicelli, 839

F.3d at 87 (court gave additional requested

instruction not to draw a prohibited conclusion). Thus, we see no basis for concluding the instruction was inappropriate.

[55] The instruction was also prompt.

The district court acted quickly after hearing Coleman’s argument on this issue, providing the curative instruction only about

30 minutes after the challenged testimony.

[56] Finally, Coleman has not shown

that Dr. Vershvovsky’s testimony was so

inflammatory that ‘‘responsible jurors

w[ould] not be able to put the testimony to

one side’’ despite being instructed to do so.

Sepulveda, 15 F.3d at 1185; see also id. (we

‘‘start with a presumption that jurors will

follow a direct instruction to disregard

matters improvidently brought before

27. Indeed, the government’s disavowal of Dr.

Vershvovsky’s statement could have led the

jury to doubt other aspects of her testimony

39

them’’). Coleman argues that Dr. Vershvovsky’s testimony was extremely prejudicial because the jury must have relied on it

to conclude that he held Correia during

the car ride and in his apartment, satisfying the appreciable hold element. At closing, however, the government argued that

Coleman strangled Correia in the minutes

they were together in his parked car on

Tremont Street, and that he avoided the

police on the one-way street because ‘‘by

[that] time he had a dead body in the seat

right next to him.’’ Coleman fails to explain

why the jury would have dwelled on testimony that the district court promptly instructed it to disregard instead of accepting the government’s theory at closing that

he killed Correia in his car.27 And, for the

reasons we explain below, see infra Section

II.F.2, the evidence was sufficient for the

jury to find an appreciable hold under the

government’s theory of the case. Thus, we

conclude that the district court did not

abuse its discretion in denying Coleman’s

motion for a mistrial as to Dr. Vershvovsky’s testimony.

2. Mondesir’s Testimony During

the Defense’s Case

We next turn to Coleman’s challenges to

the district court’s rulings during Mondesir’s testimony close to the end of trial. As

a reminder, Mondesir initially testified

during the government’s case. But based

on the court’s decision that Coleman could

introduce reputation testimony about

Correia’s alleged sex work, Coleman recalled Mondesir during his case. Coleman

expected Mondesir to testify consistently

with statements she had provided to the

police during its investigation of Correia’s

death.28

and thus could have been detrimental to the

government’s case.

28. Because Mondesir’s statements to the police are not part of the public record in this

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149 FEDERAL REPORTER, 4th SERIES

Mondesir’s second appearance on the

witness stand was chaotic. When Coleman

asked whether Mondesir was back in court

voluntarily and whether she had refused to

speak with his counsel, Mondesir responded ‘‘[w]hy would I want to talk to you?

Why are you dragging me back here to

answer questions that has nothing to do

with nothing? He killed her. It doesn’t

matter what you ask me. It doesn’t matter.’’ When defense counsel then asked

whether Correia had worked as a prostitute on the days immediately prior to her

death, Mondesir responded ‘‘[a]re you kidding me?’’ and ‘‘[w]hat the fuck you looking at?’’ (We believe this second comment

was directed at the defendant, not his

counsel.) After being asked the same question again, Mondesir simply responded

‘‘no.’’ Defense counsel then tried to refresh

Mondesir’s memory as to her interview

with the police. At that point Mondesir

asked why she was back on the stand and

explained how detrimental the proceeding

was to her mental health. The district

court instructed defense counsel to wrap

up, and counsel asked whether Mondesir

told the police that Correia ‘‘was working

as a prostitute on an as-needed basis,

mostly on the weekends.’’ At that point,

Mondesir invoked her Fifth Amendment

right not to incriminate herself. The court

then instructed the jury that if it believed

Mondesir made this earlier statement to

the police, it could consider the statement

‘‘in assessing her credibility,’’ but not for

its truth.

reconsider its exclusion of Mondesir’s

statements to the police. The court denied

both motions.

i. Exclusion of Mondesir’s Statements

to the Police

[57] Coleman argues that Mondesir’s

prior statements to the police were admissible under Rule 807 and that their exclusion violated his Sixth Amendment right to

present a complete defense. In so arguing,

he does not contest that her statements

were hearsay. As a reminder, we review

the district court’s evidentiary rulings for

abuse of discretion and its constitutional

rulings de novo. See Brown, 510 F.3d at

66; Brown, 669 F.3d at 19. Despite the

different standards of review, the analysis

overlaps. Under Rule 807, a hearsay statement with sufficient guarantees of trustworthiness may be admitted for its truth

when ‘‘it is more probative on the point for

which it is offered than any other evidence

that the proponent can obtain through reasonable efforts.’’ Fed. R. Evid. 807(a)(2).

Similarly, whether Coleman was entitled to

introduce evidence of Correia’s alleged prior sex work in order to present a complete

defense hinges in large part on the probative value of this evidence. See supra Section II.D.4.i.

Coleman objected to the district court’s

instruction, arguing that Mondesir’s prior

statement was admissible under Federal

Rule of Evidence 807, the residual exception to the hearsay rule. The court overruled his objection. Coleman then moved

for a mistrial and also moved the court to

Even assuming Mondesir’s alleged statement to the police was trustworthy, it was

at most marginally probative of whether

Coleman and Correia had consensual sex

on the night that Correia died. As we

explained earlier, Correia’s previous sexual

relationships with individuals she already

knew were not predictive of how she would

interact with someone who was a complete

stranger. Instead, the inference that any

prior sex work, in and of itself, made it

more likely that Correia would consent to

sex with any man in any situation is the

case and were filed under seal in our court,

we do not recount them in detail. We describe

only one statement, which Coleman asked

Mondesir about during trial.

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Cite as 149 F.4th 1 (1st Cir. 2025)

sort of highly prejudicial inference that led

to Rule 412. See Fed. R. Evid. 412.

Further, the statement by Mondesir

that Coleman sought to introduce was

stripped of its context. Mondesir’s discussion with the police in no way suggested

that Correia would have agreed to a commercial sex transaction with a man she

met on the street on the night that she

was celebrating her birthday.

Additionally, as compared to other evidence in the record, Mondesir’s alleged

statement was not ‘‘more probative’’ of

whether Coleman and Correia had consensual sex that night. Fed. R. Evid. 807(a)(2).

For example, Dr. Vershvovsky had already

testified that the autopsy she conducted

revealed no physical signs of force or harm

to Correia’s genitals.

Considering the record as a whole, we

see no evidentiary or constitutional error

in the district court’s decision not to admit

Mondesir’s alleged statement for its truth.

ii. Invocation of the Fifth Amendment

The parties make several arguments

about Mondesir’s assertion of her Fifth

Amendment right not to incriminate herself. Coleman argues that the district court

abused its discretion by ruling that Mondesir had validly asserted her Fifth

Amendment privilege. He also argues, in

the alternative, that if Mondesir had properly asserted this privilege, her prior

statement to the police should have come

in as a statement against interest under

Federal Rule of Evidence 804(b)(3). The

government, for its part, argues that Coleman failed to preserve this challenge, such

that plain error review applies, and that he

29. As the government points out, Coleman

did not contemporaneously object to Mondesir’s assertion of the Fifth Amendment privilege. Coleman did, however, file a motion for

mistrial the next day, in which he contended

that Mondesir had been allowed to ‘‘improp-

41

has waived the claim entirely by failing to

address the plain error standard on appeal.29 See United States v. Aponte-Colón,

104 F.4th 402, 415 (1st Cir. 2024).

[58] We bypass the Fifth Amendment

issues because we conclude that Mondesir’s alleged prior statement was inadmissible, regardless of whether the privilege

applied. To the extent Coleman argues

that he should have been able to question

Mondesir about her earlier statement to

the police, even though she invoked the

Fifth Amendment, the testimony that he

sought to elicit would have been a characterization of Mondesir’s prior statement,

and that prior statement was itself inadmissible hearsay. Cf. United States v. Cascella, 943 F.3d 1, 6 (1st Cir. 2019) (foregoing deciding ‘‘whether the handling of the

privilege-pleading witness was error’’ because that error was harmless). Mondesir’s

prior statement also would have been inadmissible under Rule 412 for the very same

reasons that the evidence regarding specific instances of Correia’s prior sexual behavior was inadmissible. See supra Section

II.D.4.i. Thus, there was a real risk of

encouraging the jury to decide the case on

improper grounds. See Haines, 918 F.3d at

699 (‘‘[T]he district court enforces the Rule

to ensure that the jury decides the case

based on proper considerations.’’). As a

result, there was no error in excluding the

statement, and we need not analyze the

parties’ Fifth Amendment arguments.

iii. The Second Motion for a Mistrial

[59] We turn now to Coleman’s argument that the district court abused its

discretion by denying his motion for a

erly assert a ‘Fifth Amendment privilege’

where it is clear that none exists.’’ In denying

that motion, the district court noted that it

was ‘‘by no means clear TTT that that was a

bad faith assertion of a Fifth Amendment

right’’ in light of the relevant crimes.

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149 FEDERAL REPORTER, 4th SERIES

mistrial after Mondesir’s testimony. Coleman’s strategic decisions at the district

court undermine his claim that the ‘‘last

resort’’ of mistrial was appropriate here.

Apicelli, 839 F.3d at 86. For example, he

did not ask the court to strike Mondesir’s

testimony or request a curative instruction, despite the court’s invitation for him

to do so.

Coleman insists, however, that only a

mistrial would have been sufficient because

Mondesir provided false testimony and

caused a scene in the courtroom. To Coleman’s first point, we are not convinced

that Mondesir’s testimony was false. Having carefully reviewed Mondesir’s interview with the police, it is not clear that she

would have described Correia’s conduct as

‘‘working as a prostitute in the time period

shortly before she died,’’ which is how

Coleman phrased his question to her at

trial. Mondesir had used other terms to

describe Correia’s prior sexual behavior,

and it was the police officer interviewing

her who described Correia’s conduct as

‘‘prostitution.’’30 To the extent Mondesir’s

testimony was misleading, we cannot conclude it was so prejudicial as to require a

mistrial, given our conclusion about the

marginal probative value of her statement

to the police.

[60] To Coleman’s second point, he has

not demonstrated how Mondesir’s ‘‘outbursts’’ in the courtroom prejudiced him to

such an extent that ‘‘the last resort’’ of a

mistrial was in order. The government argues that these outbursts largely reflected

Mondesir’s frustration at having to return

to court to take the stand for a second

time. And the record indicates that Mondesir’s only statement directed at Coleman

was that ‘‘[h]e killed her.’’ But Coleman

admitted to causing Correia’s death; he

30. Because we do not agree that Mondesir

gave false testimony, we also reject Coleman’s

argument in his pro se brief that the govern-

disputed only how she died. On this record,

we cannot conclude that the district court

abused its discretion when it denied the

motion for a mistrial.

F. Sufficiency of the Evidence

At the close of the government’s case,

Coleman moved for a judgment of acquittal, arguing that the government had failed

to introduce evidence sufficient to establish

the elements of kidnapping. The district

court denied Coleman’s motion in a thorough oral decision, finding the evidence

sufficient as to each element. Coleman renewed his motion at the close of evidence,

and the court denied it again.

[61, 62] We review a preserved sufficiency challenge de novo. See United

States v. Falcón-Nieves, 79 F.4th 116, 12324 (1st Cir. 2023). ‘‘[T]he relevant question

is whether, after viewing the evidence in

the light most favorable to the prosecution,

any rational trier of fact could have found

the essential elements of the crime beyond

a reasonable doubt.’’ Id. at 123 (quoting

United States v. Woodward, 149 F.3d 46,

56 (1st Cir. 1998)). As we have explained:

If the evidence ‘‘viewed in the light most

favorable to the verdict gives equal or

nearly equal circumstantial support to a

theory of guilt and a theory of innocence

of the crime charged, this court must

reverse the conviction. This is so because TTT where an equal or nearly

equal theory of guilt and a theory of

innocence is supported by the evidence

viewed in the light most favorable to the

prosecution, a reasonable jury must necessarily entertain a reasonable doubt.’’

United States v. Morillo, 158 F.3d 18, 22

(1st Cir. 1998) (internal quotation marks

ment violated his due process rights by failing

to correct Mondesir’s ‘‘false statements.’’

Appendix A

42

U.S. v. COLEMAN

Cite as 149 F.4th 1 (1st Cir. 2025)

omitted) (quoting United States v. FloresRivera, 56 F.3d 319, 323 (1st Cir.1995)).

To set the stage for our analysis, we

briefly recount the elements of kidnapping.

Under the federal kidnapping statute, the

government had to show that Coleman (1)

seized Correia and (2) held her for an

appreciable time against her will (3) for

ransom or reward or otherwise, and (4)

willfully transported her in interstate commerce. See 18 U.S.C. § 1201(a)(1); Chatwin, 326 U.S. at 459-60, 66 S.Ct. 233. On

appeal, Coleman contends that the government failed to establish the first three

elements of kidnapping, including by failing to establish his intent as to these elements.

1. Seizure

Coleman argues that the government

did not introduce sufficient evidence to

meet the seizure element. This element

can be met either by a physical or nonphysical taking. See 18 U.S.C. § 1201(a)

(‘‘Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away TTT any person TTTT’’). In its

opening statement, the government indicated that ‘‘[t]he evidence will show how

[Coleman] lured [Correia] into his car, confined her there, sexually assaulted her,

strangled her to death, and transported

her across state lines into Rhode Island,

all against her will.’’ In its closing argument, the government contended that

‘‘[Coleman] tricked [Correia].’’

There is no direct evidence in the record

as to whether Coleman deceived Correia

about his intentions that night. In fact, the

record documents only five words from

Coleman to Correia on February 24:

Alqasir’s testimony that Coleman told

Correia something like ‘‘this is not your

Uber.’’ The government presented video

evidence of Coleman and Correia talking

briefly after that interaction, holding

43

hands, and eventually walking together to

his car. But there is no audio of their

conversation.

The district court concluded that, viewing the record in the light most favorable

to the government, the circumstantial evidence was sufficient for a reasonable jury

to find beyond a reasonable doubt that

Correia was seized. In particular, it held

that a jury could conclude that Coleman

‘‘enticed [Correia] into the vehicle with the

promise of a ride, but that [his] purpose

was to hold or detain her for purposes of

sexual gratification.’’

[63] We agree with the district court’s

assessment of the record. The government

presented evidence that Correia intended

to return to Mondesir’s apartment after

leaving Venu. Hiltz testified that Correia

told her that she was staying with Mondesir that night and that she would ‘‘get an

Uber home.’’ And Mondesir testified that

Correia left her belongings, including the

keys to her own residence, at Mondesir’s

apartment. In the moments before Coleman approached Correia, Correia tried to

get into a car with an Uber decal. Thus,

the jury could have reasonably inferred

that she was attempting to follow through

on her plan to find an Uber to Mondesir’s

apartment. Further, a reasonable jury

could infer that she left with Coleman

because he offered her a ride. The fact

that Coleman and Correia spoke for less

than a minute before they walked away

together also supports that inference. As

the government argues, in light of all this

evidence, the most obvious explanation for

Correia’s quick agreement to leave with

Coleman is that he offered to drive her to

Mondesir’s apartment.

According to Coleman, however, it was

equally likely, based on the evidence, that

he offered Correia a ride and she later

‘‘agreed to have sex with [him].’’ He also

argues that because the evidence was in-

Appendix A

43

44

149 FEDERAL REPORTER, 4th SERIES

sufficient to show that he intended to sexually assault Correia, the government could

not establish that he intended to deceive

her. In support, he points to the evidence

that he began that Saturday night seeking

to go out with friends, spent his time in

Venu with a willing partner, and calmly

separated from that partner when she

went home with her brother.

Coleman overlooks, however, the evidence that the district court highlighted in

its sufficiency ruling, as well as the court’s

obligation to view that evidence in the light

most favorable to the government. That

evidence indicated that Coleman approached an intoxicated young woman who

was separated from her friends, without

her shoes or jacket on a winter night, and

had sex with her in his car just minutes

later. Further, the evidence indicated a

struggle in the car. As the district court

reasoned, the most likely inference that a

jury could draw from these circumstances,

even if it was not the only possible inference, was that Coleman formed the intent

to assault Correia before or soon after he

approached her. See Morillo, 158 F.3d at

22 (we assess ‘‘all reasonable inferences[ ]

in the light most favorable to the verdict’’

(quoting United States v. Garcia, 983 F.2d

1160, 1163 (1st Cir. 1993))).31

Because the evidence was sufficient to

find that Coleman deceived Correia about

his intent when they began to walk to his

car, it was sufficient to satisfy the seizure

element. See United States v. Stands, 105

F.3d 1565, 1576 (8th Cir. 1997) (finding

sufficient evidence of seizure by inveigle31. That Coleman had respectful interactions

with one woman that night was not especially

probative of whether he was capable of assaulting a different woman, particularly in

light of the strong evidence of sexual assault

we discuss below. See infra Section II.F.3.

32. The government suggested in its brief that

we could ignore this requirement because it is

not found in the statute’s text. We disagree.

ment or decoy where the victim was lured

into a car under a false pretense about the

destination when in fact the plan was to

take the victim to an isolated location to

assault him); United States v. Hughes, 716

F.2d 234, 239 (4th Cir. 1983) (‘‘By inducing

his victim by misrepresentations to enter

his vehicle and to accompany him, and

knowing that the victim’s belief as to their

purpose and destination is different from

his actual illicit purpose, the kidnapper has

interfered with, and exercised control over,

her actions. We find this conduct sufficient

to satisfy the ‘involuntariness of seizure

and detention’ requirement TTTT .’’).

2. Holding

Coleman next contends that there was

insufficient evidence to establish that he

held Correia against her will for an ‘‘appreciable period.’’ We begin with the legal

framework for what qualifies as ‘‘holding’’

under the federal kidnapping statute. We

then turn to Coleman’s argument that the

evidence was not sufficient to support the

holding element.

i. The Holding Requirement

The appreciable period requirement

comes from the Supreme Court’s seminal

decision about the federal kidnapping statute, Chatwin v. United States. In that

case, the Court explained that the ‘‘act of

holding a kidnapped person’’ implies ‘‘an

unlawful physical or mental restraint for

an appreciable period.’’ 326 U.S. at 460, 66

S.Ct. 233 (emphasis added).32

‘‘We are bound by the Supreme Court’s ‘considered dicta.’ ’’ United Nurses & Allied Pros.

v. NLRB, 975 F.3d 34, 40 (1st Cir. 2020)

(quoting McCoy v. Mass. Inst. of Tech., 950

F.2d 13, 19 (1st Cir. 1991)). In any event, the

government agreed at oral argument that because the jury was instructed that the hold

must be appreciable, the only issue on appeal

Appendix A

44

U.S. v. COLEMAN

Cite as 149 F.4th 1 (1st Cir. 2025)

Although several of our sister circuits

have held that the appreciable period requirement is not met when a kidnapping is

incidental to the commission of another

crime, such as extortion or assault, we

disagree and reject that view. These circuits generally treat a kidnapping as incidental to another crime when the time of

the hold is not considerably longer than

the time it takes to commit the other

crime. See Gov’t of the Virgin Islands v.

Berry, 604 F.2d 221, 227 (3d Cir. 1979)

(adopting a four-factor test to determine

whether kidnapping is incidental to another crime); United States v. Howard, 918

F.2d 1529, 1535-36 (11th Cir. 1990) (adopting and applying Berry); United States v.

Jackson, 24 F.4th 1308, 1314 (9th Cir.

2022) (same); see also United States v.

Krivoi, 80 F.4th 142, 153 (2d Cir. 2023)

(adopting a ‘‘narrowing gloss’’ on the federal kidnapping statute similar to the Berry test);33 United States v. Murphy, 100

F.4th 1184, 1199 (10th Cir. 2024) (not

adopting Berry but interpreting § 1201 to

require ‘‘an appreciable temporal period of

detention (i.e., holding) beyond that necessary to commit any other offense.’’).

45

fines, inveigles, decoys, kidnaps, abducts,

or carries away and holds for ransom or

reward or otherwise any person TTT shall

be punished by imprisonment TTTT’’ (emphasis added)). There is no indication from

either the single word ‘‘holds’’ or the surrounding statutory context that Congress

contemplated an ‘‘incidental kidnapping’’

exception.

The federal kidnapping statute was

amended in 1934, two years after it was

enacted, to broaden the purpose element

from ‘‘for ransom or reward’’ to ‘‘for ransom or reward or otherwise.’’ See Gooch,

297 U.S. at 127-28, 56 S.Ct. 395 (discussing

the amendment). As we discussed earlier,

see supra Section II.A, the term ‘‘otherwise’’ could encompass a criminal purpose,

such as sexual assault. In light of the

amendment, it makes little sense to us that

‘‘an extended detention would be a kidnapping if done just for the sake of it, but not

a kidnapping if done to accomplish some

attendant offense.’’ Cardozo v. United

States, 315 A.3d 658, 676 (D.C. 2024).34

Based on the plain language of the statute, we decline to adopt the r

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