No. 19-1522

UNITED STATES OF AMERICA,

Appellee,

V.

JUAN PENA a/k/a JJ,

Defendant, Appellant.

NO. 20-1083

UNITED STATES OF AMERICA,

Appellee,

V.

ROSNIL ORITZ a/k/a RICO,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

Hon. William G. Young, District Judge

Before

Lynch and Kayatta, Circuit Judges, and Laplante, District Judge.

 Of the District of New Hampshire, sitting by designation. James L. Sultan, with whom Kerry A. Ferguson and Rankin & Sultan, were on brief, for appellant Juan Pena. Chauncey B. Wood, with whom Danya Fullerton and Wood & Nathanson, LLP were on brief, for appellant Rosnil Ortiz. Donald C. Lockhart, Assistant United States Attorney, for appellee the United States, with whom Nathanial R. Mendell, Acting United States Attorney, was on brief in No. 20-1083; Alexia R. De Vincentis, Assistant United States Attorney, and Andrew E. Lelling, United States Attorney, were on brief in No. 19-1522.

January 21, 2022

- 2 - Laplante, District Judge. Juan Pena and Rosnil Ortiz (the "defendants") appeal their convictions for conspiring to distribute 28 grams or more of cocaine base. During a joint criminal jury trial held in 2018, the prosecution played for the jury two video recordings showing Pena and Ortiz discussing and, the next day, consummating a cocaine-base transaction with a confidential police informant referred to herein as "R.E." But because R.E. invoked his Fifth Amendment right against self- incrimination, neither the prosecution nor the defendants were able to question R.E. at trial about his role in the investigation. Moreover, the district court made several evidentiary rulings that, the defendants argue, restricted their ability to cross- examine federal law enforcement officers about R.E.'s out-of-court statements -- evidence which, if proffered for an admissible purpose, could arguably undermine the credibility of the underlying drug enforcement investigation in the eyes of the jury.

In separate appeals,1 Pena and Ortiz both contend that the district court erred in allowing the jury to consider the above-mentioned video recordings and the "out-of-court" statements captured therein by ruling that they were coconspirator statements

1In addition to filing separate appeals, Pena and Ortiz submitted separate briefs. Because their appeals are from the same trial and share common themes, we address their arguments in one consolidated opinion.

- 3 - admissible under Federal Rule of Evidence 801(d)(2)(E). Additionally, the defendants claim that the district court infringed on their due process rights by limiting their ability to cross-examine trial witnesses about R.E.'s out-of-court statements to drug enforcement agents, by instructing the jury that it could convict either defendant if that defendant had conspired to sell cocaine base with an uncharged supplier known as "Black," and by telling the jury mid-cross-examination that the use of undercover informants in controlled drug purchases is an appropriate law enforcement technique. As discussed below, neither Pena nor Ortiz have met their appellate burden for any of these issues. Their convictions are therefore affirmed.

I. Background

We draw the following facts from the record on appeal, leaving some argument-specific details for later in the opinion. A.