"In conducting

our sufficiency analysis, we remain aware that the government may

provide evidence sufficient to convict without showing that: (1)


                                           - 5 -
each conspirator knew of or had contact with all other members;

(2) each conspirator knew of all the details of the conspiracy or

participated   in   every   act    in    furtherance     of   it;   or   (3)   the

conspiratorial 'cast of characters' remained intact throughout the

duration of the entire enterprise."               United States v. Cruz-

Rodríguez, 
541 F.3d 19
, 28 (1st Cir. 2008).

          Rosario argues that there was no evidence linking him to

any of the conspirators: although he was arrested allegedly selling

drugs at La Boveda, the drugs attributed to him did not have a

seal or other marking belonging to one of the "brands" commonly

sold at the drug point.           At most, Rosario claims, he was an

independent seller operating at the drug point.

          Not so.     Although we agree that "'mere presence at the

scene of the crime' or 'mere association with conspirators' is not

enough to establish guilt," United States v. Llinas, 
373 F.3d 26
,

32 (1st Cir. 2004) (quoting United States v. Gómez-Pabón, 
911 F.2d

847
, 853 (1st Cir. 1990)), we have long recognized that "the mere

presence defense is not so ubiquitous as to envelop every drug-

trafficking case in which the government lacks direct evidence of

a   defendant's     complicity,"
        id.   (quoting    United 
    States     v.

Echeverri, 
982 F.2d 675
, 678 (1st Cir. 1993)).                 Like Echeverri

itself, this is a case in which "a defendant's 'mere presence'

argument will fall [because] the 'mere' is 
lacking."                982 F.2d at

678
.


                                    - 6 -
             A reasonable jury could conclude that Rosario sold drugs

at La Boveda and that he did so as part of the conspiracy.                     One

police officer testified that he had seen Rosario "[s]elling

controlled substances in La Perla, at La Boveda."                Another officer

testified that when he arrested Rosario after a chase at La Boveda,

Rosario possessed eighty-one baggies of marijuana, twenty-six

baggies of cocaine, and over $100 in cash.                 Flow testified that he

had seen Rosario "hanging out" at the drug point.2                  And Willyboy

told the jury that he had seen Rosario selling "mostly cocaine and

marijuana" at the drug point on multiple occasions.

             Evidence    also      showed    that    the   conspiracy's    leaders

established certain rules for sellers operating at La Boveda, from

establishing standard drug prices to dictating where sellers could

market their drugs.          Sellers also pooled their money to hire

lookouts.     The jury could have inferred that Rosario, as a seller

at La Boveda, was also subject to these rules and therefore

participated in the conspiracy.             See United States v. Mena-Robles,

4   F.3d    1026
,    1032    (1st    Cir.    1993)    (noting    that,    in   some

conspiracies,       "there   are    circumstances      where    presence   itself

implies participation" (quoting United States v. Ortiz, 
966 F.2d



      2Rosari
o interprets Flow's testimony as establishing that
Rosario "was not a member" of the conspiracy. We disagree. Flow
never testified that Rosario "was not a member," nor did he
contradict other witnesses who testified that Rosario was, in fact,
selling as part of the conspiracy.


                                       - 7 -
707, 712 (1st Cir. 1992))).       "While these factual conclusions are

not the only ones the jury could have reached, we find them . . .

reasonable."
     Id.    Therefore, we 
find the evidence sufficient to

support Rosario's drug-conspiracy conviction.

           2.    Count Four: marijuana

           Rosario claims that the evidence was insufficient on

this count because there is no way that the jury could have

believed testimony that he sold marijuana and cocaine at the drug

point.   The jury convicted Rosario of possession with intent to

distribute cocaine but found no amount of cocaine attributable to

him.   This inconsistency, Rosario maintains, establishes that the

jury did not believe the witnesses who connected Rosario to

cocaine; so, to the extent that the same witnesses connected

Rosario to marijuana, the jury must have disbelieved them on the

marijuana question too.      Once we eliminate this testimony, Rosario

concludes, there is not enough evidence left to convict him on the

substantive marijuana count.

           We disagree.      Inconsistent verdicts "often are a product

of jury lenity."       United States v. Powell, 
469 U.S. 57
, 65 (1984).

Therefore, sufficiency review on one count "should be independent

of the jury's determination that evidence on another count was

insufficient."
     Id. at 67; 
see also 
Mena-Robles, 4 F.3d at 1031
("[T]he jury is empowered to accept or reject, in whole or in part,

any testimony.").      Furthermore, Rosario was arrested while fleeing


                                   - 8 -
La Boveda with eighty-one baggies of marijuana.                      "[I]ntent to

distribute    drugs    can     legitimately       be    inferred    from   factors

[including] quantity . . . ."             
Echeverri, 982 F.2d at 678
.           The

evidence was sufficient to support Rosario's conviction on the

substantive marijuana count.

B.   Prejudice from stricken flight evidence

             Before trial, the court sent Rosario to an inpatient

drug-treatment program.          Shortly thereafter, Rosario absconded

from the treatment center and evaded capture for nearly two weeks.

Over Rosario's objection, a deputy marshal testified at trial that

he   subsequently     found    and    arrested    Rosario.         Initially,   the

district court indicated that it was planning to instruct the jury

that flight evidence could be probative of consciousness of guilt,

but ultimately it instructed the jury that the marshal's testimony

was "not to be taken into consideration."               Moreover, when charging

the jury, the court offered this reminder: "Anything I have

excluded from evidence or ordered stricken and instructed you to

disregard is not evidence.           You must not consider such items."

             On   appeal,     Rosario    argues    that,    because    the   other

evidence against him was so weak, the jury probably convicted him

based on impermissible flight evidence.                Not only do we doubt that

the district court abused its discretion by initially admitting

the flight evidence, see United States v. Benedetti, 
433 F.3d 111
,

116 (1st Cir. 2005), but the court also mitigated any potential


                                        - 9 -
damage with its later curative instruction.                  As we have recognized

time and again, "within wide margins, the potential for prejudice

stemming from improper testimony or comments can be satisfactorily

dispelled    by    appropriate       curative       instructions,"      even    if   the

instructions       do    not     follow    immediately     upon   the    problematic

remark.     United States v. Ayala-Vázquez, 
751 F.3d 1
, 26 (1st Cir.

2014) (quoting United States v. Pagán-Ferrer, 
736 F.3d 573
, 587

(1st Cir. 2013)).

             In    light    of    both    the    court's    instructions       and   the

evidence against Rosario, which was sufficient to convict even

without the flight evidence, we see no reason to believe that the

jury convicted Rosario based on the stricken flight evidence.                        See


id. at 25–27 
(presumption that jury followed court's curative

instruction       is    overcome    only    in     "rare   circumstances       implying

extreme prejudice" (emphasis omitted) (quoting United States v.

Freeman, 
208 F.3d 332
, 339 (1st Cir. 2000)).

                                   III.     Setiawan

             As part of its conspiracy case, the government presented

evidence that Setiawan shot and killed "Teton," a drug seller

indebted to Setiawan. On appeal, Setiawan claims that the district

court erred by: (1) admitting evidence that Setiawan killed Teton;

(2) excluding evidence that Cascote killed Teton; and (3) making

its sentencing determinations.                  In short, we conclude that the

district court's decision to admit the murder evidence while


                                          - 10 -
excluding the exculpatory evidence was not proper and that the

cumulative effect of the decision warrants a new trial. Because we

remand for a new trial, we do not reach Setiawan's sentencing

claims.

A.   Admitting Murder Evidence

           Setiawan argues that the district court constructively

amended the indictment by admitting evidence that he killed Teton.

Essentially, Setiawan argues that he was charged with a conspiracy

to distribute drugs -- not the separate offense of killing someone

during the course of a drug crime -- so evidence of Teton's murder

could not be presented as an overt act of the drug-distribution

conspiracy.   Setiawan did not preserve this claim at trial, so as

both parties agree, we review for plain error.    See United States

v. Brandao, 
539 F.3d 44
, 60 (1st Cir. 2008).

           Although   Setiawan    makes   a   constructive-amendment

argument, it is unclear whether his complaint would be described

more appropriately as a variance from the indictment.    See United

States v. Rodríguez-Rodríguez, 
663 F.3d 53
, 58 n.6 (1st Cir. 2008)

("The line [between the two doctrines] is inherently fuzzy.")

(citation omitted).    A constructive amendment occurs when the

difference between the indictment and the proof at trial is so

great that the defendant was essentially convicted of a charge for

which he was not indicted; a variance occurs when the charge is

unchanged, but the facts proved at trial are different from those


                                 - 11 -
alleged in the indictment.    See United States v. Fisher, 
3 F.3d

456
, 462 (1st Cir. 1993).    Ultimately, it does not matter whether

we construe Setiawan's argument as one of constructive amendment

or variance -- neither occurred here.

          The introduction of evidence at trial that Setiawan

murdered Teton did not constructively amend the indictment, which

charged Setiawan with, among other things, conspiracy to possess

with intent to distribute controlled substances under 21 U.S.C.

§ 846. The government is not required to allege or prove any overt

act as an element of a § 846 conspiracy.      See United States v.

Vega-Figueroa, 
234 F.3d 744
, 754 (1st Cir. 2000) (citing United

States v. Shabani, 
513 U.S. 10
, 13 (1994)).           Therefore, the

government's gratuitous proof of an overt act relevant to the

conspiracy -- Teton's murder -- "does not involve an alleged

constructive amendment of [the indictment] to include an 'offense

not charged by the grand jury.'" United States v. Fornia-Castillo,

408 F.3d 52
, 66 (1st Cir. 2005).   "(quoting United States v. Dunn,

758 F.2d 30
, 35 (1st Cir. 1985))."

          Setiawan is mistaken in his argument that this is the

first time that murder evidence has been introduced as an overt

act in a drug conspiracy under 21 U.S.C. §§ 841(a)(1) and 846.

We have recognized, but found unavailing, the contention that

admitting this sort of evidence "arguably carrie[s] the risk of

turning a drug conspiracy case into a murder case."    United States


                               - 12 -
v. Rivera Calderón, 
578 F.3d 78
, 99 (1st Cir. 2009).                 Here, the

murder evidence does "not appear to have been calculated to arouse

the passions of the jury," so its admission is not reversible

error.
     Id. at 98. 
   Setiawan merely asserts without development

that the murder evidence was unfairly prejudicial.                Even if his

argument were not waived, see United States v. Zannino, 
895 F.2d

1
, 17 (1st Cir. 1990), after careful review, we note that the

relevant testimony was presented in a manner similar to that

approved of in Rivera Calderón -- the witnesses "described the

murder[]    matter-of-factly,       stating   that   [Teton   was]   shot   but

leaving out graphic 
details."         578 F.3d at 98
.

               Further, "[t]here is no variance" when, as here, a

defendant "does not contend that the government failed to prove

[the indictment's] allegations at trial" but "argues that he was

charged only with [those] acts, and that the government 'varied'

from the indictment by offering additional evidence."                    United

States    v.    Innamorati,   
996   F.2d   456
,   477–78   (1st   Cir.   1993)

(emphasis in original).

               In Vega-Figueroa, we rejected a variance claim like

Setiawan's.      There, the defendant claimed that the trial evidence

of his involvement in a drug-trafficking conspiracy -- including

his involvement in an uncharged murder -- impermissibly varied

from the indictment, which did not mention the 
murder.                234 F.3d

at 753
.     We determined that there was "no basis" for a variance


                                     - 13 -
claim because the government was not limited at trial only to those

overt acts alleged in the indictment.
    Id. at 754. 
  Differently

stated, "[t]he fact that the government proved aspects of the

conspiracy beyond those recited in the indictment . . . simply

does not constitute a variance."   
Fisher, 3 F.3d at 463
.

           Finally, even if there had been a constructive amendment

or variance, Setiawan could not demonstrate prejudice under the

plain-error standard because he does not dispute that he had

advance notice of the murder evidence.    See 
Brandao, 539 F.3d at

62
–63 (finding that the constructive amendment did not "seriously

jeopardize" the defendant's rights when, among other things, he

"was provided adequate notice of the charges against him"); Fornia-

Castillo, 408 F.3d at 67 
(concluding that the variance was not

prejudicial when the defendant "had ample notice of and ample

opportunity to prepare to meet the government's evidence before

trial").

           In Rivera-Donate, for instance, we declined to find a

prejudicial variance when the defendant could not 'credibly claim

surprise' about the government's proof at trial.
    Id.     At 130
(quoting United States v. Marrrero-Ortiz, 
160 F.3d 768
, 773 (1st

Cir. 1998)).     Setiawan knew that he was under indictment for

participating in a drug-distribution conspiracy, and "he knew that

his central defense needed to be that he was not part of that

[conspiracy]."    United States v. Alicea-Cardoza, 
132 F.3d 1
, 6


                              - 14 -
(1st Cir. 1997).     Therefore, he cannot demonstrate prejudice under

the plain-error standard.

B.   Excluding Exculpatory Evidence

            Setiawan maintains that the district court improperly

excluded evidence supporting his defense that Cascote, rather than

Setiawan, killed Teton.        First, Setiawan argues that the district

court improperly excluded hearsay testimony admissible under the

statement-against-interest exception.               Second, Setiawan argues

that the district court erred by striking a witness's testimony

following   the    witness's     refusal    to   answer    the    prosecution's

questions on cross-examination. We review for abuse of discretion.

See United States v. Monserrate-Valentín, 
729 F.3d 31
, 52 (1st

Cir. 2013); United States v. Baskin, 
424 F.3d 1
, 3 (1st Cir. 2005).

            1.    Hearsay statement

            Setiawan    wanted    Luis     Rivera-Melendez        ("Rivera"),   a

codefendant who had pleaded guilty, to testify that he was present

at Teton's murder and that Cascote, not Setiawan, was the killer.

But Rivera invoked the Fifth Amendment and refused to testify.

The district court ruled that Rivera's testimony risked self-

incrimination and deemed Rivera unavailable as a witness.                    See

Fed. R. Evid. 804(a)(1).

            Setiawan then attempted to call a defense attorney,

Miriam   Ramos-Grateroles      ("Ramos"),     who    had   been    present   when

Setiawan's attorney interviewed Rivera in prison.             Ramos testified


                                   - 15 -
outside the jury's presence that Rivera told Setiawan's counsel

that he witnessed Cascote shoot Teton at a drug point.             Setiawan

argued    that    Ramos's    testimony   relaying   Rivera's   out-of-court

statement    was   admissible    under   the   statement-against-interest

exception because the statement placed Rivera at a drug point,

exposing him to criminal liability.          See Fed. R. Evid. 804(b)(3).

             The district court excluded the statement.          The court

reasoned that Ramos's testimony would be "inherently unreliable"

because she would not be subject to cross-examination about the

drug-trafficking conspiracy or the murder.          The court's ruling did

not depend on either criterion relevant to admitting evidence under

Rule 804(b)(3), namely, that the hearsay statement must be against

the out-of-court declarant's interest and the statement must be

corroborated.      See
 id.

             The court's 
basis for excluding the hearsay statement

i.e., that Ramos would not be subject to cross-examination about

the conspiracy or murder -- was improper.           In-court witnesses who

relay hearsay statements are never subject to cross-examination

about the substance of out-of-court statements.          The Federal Rules

of Evidence exclude hearsay statements generally, see Fed. R. Evid.

802, in large part because of an opponent's inability to cross

examine the in-court witness on the substance of the out-of-court

statement.       See Williamson v. United States, 
512 U.S. 594
, 598

(1994).     The Rules provide exceptions to admit certain hearsay


                                    - 16 -
statements,     however,     because       either   the    substance      of     the

statement, see, e.g., Fed. R. Evid. 803(4) (statement made for

medical diagnosis or treatment), or the way the declarant makes

the statement, see, e.g., Fed. R. Evid. 803(2) (excited utterance),

provides a measure of reliability sufficient to warrant admission,

even though neither the out-of-court witness nor the in-court

witness   is    subject     to    cross-examination       on   the    statement's

substance.     See 
Williamson, 512 U.S. at 598
–99.

             Additionally,       when    the   district   court      excluded    the

testimony    because   it    was    "inherently     unreliable,"       the     court

usurped the jury's role.          Reliability and credibility of in-court

witnesses are matters for the jury to determine. See, e.g., United

States v. Barone, 
114 F.3d 1284
, 1300 (1st Cir. 1997).                   In fact,

we have rejected precisely what occurred in this case.                  In United

States v. Seeley, this court agreed with a Second Circuit decision

holding that Rule 804(b)(3) does not require the trial court to

make a special assessment of the credibility of a witness who

relays an out-of-court declaration against penal interest.                       See

United States v. Seeley, 
892 F.2d 1
, 3 (1st Cir. 1989) (citing

United States v. Katsougrakis, 
715 F.2d 769
, 777 (2d Cir. 1983)).

Undoubtedly, a district court may exclude evidence on grounds other

than credibility, see, e.g., Fed. R. Evid. 403, but credibility of

in-court witnesses is exclusively the jury's province, see 
Seeley,

892 F.2d at 3
. As a result, the district court improperly excluded


                                        - 17 -
Ramos's    testimony    when    it   concluded       the    testimony     would   be

"inherently unreliable" because the government would not be able

to cross examine her about the murder or conspiracy.                   The district

court erred by excluding testimony that should have been admitted

under Rule 804(b)(3).

            2. Striking Colon's Testimony

            Setiawan's       attorney      also    called      David   Colon-Geigel

("Colon"), a coconspirator, as a witness to rebut the murder

accusation.     In response to questioning from Setiawan's attorney,

Colon explained that he was Cascote's right-hand man, that Cascote

is the godfather of his oldest son, and that Colon sold drugs for

Cascote.    Colon also testified that he witnessed Cascote shoot

Teton and that Flow, the government's only purported eyewitness to

the   murder,   was    not   near    the    site    of   the    shooting.     After

Setiawan's attorney finished questioning Colon, the three other

defense attorneys each asked whether their clients had any role in

the drug trafficking in La Perla; Colon responded that none of

them did.

            On cross-examination, the government asked about Colon's

drug-trafficking       activities     and    the    defendants'        involvement.

Then, the government asked further questions about other members

of the conspiracy who had been indicted in this case and pleaded

guilty, including Flow who had testified that Setiawan shot Teton.

Colon answered the questions.              When the government began asking


                                     - 18 -
about unindicted members of the conspiracy, Colon refused to answer

the questions:    "Well, what happens is I don't want to be talking

like this.   I don't want to incriminate anyone else."                After

dismissing the jury and summoning Colon's attorney, the judge and

attorneys reconvened, at which point the prosecutor explained that

he planned to show Colon one hundred photographs and seven videos

to probe his knowledge of the conspiracy generally covering the

unindicted coconspirators.          The government requested that the

district court strike Colon's entire testimony because he was

refusing to answer questions about the conspiracy.

          With    his    attorney   present,   Colon   was   asked   by   the

district court about what questions he intended to answer:

     The Court:  Sir, you testified and you stated that
     you were not going to testify anything further
     relating to any other defendant but these four
     defendants.

     The Witness:       Yes.

     The Court:    Is that still the case?

     The Witness:       I am not going to testify.

In a bench conference, Colon's attorney stated that "[Colon] has

stated clearly that he [wa]s going to refuse to testify to any

further questions."       The district court continued to discuss the

question whether Colon's testimony should be stricken.               Colon's

attorney apparently left the courtroom.         The district court then

asked Colon two more questions:



                                    - 19 -
      The Court:   So that means that you are not going to
      answer any questions as to Setiawan?

      The Witness:      No.

      The Court:   And that means that you are not going to
      answer any further questions as to any further
      defendants that are here?

      The Witness: I would answer questions if I wasn't asked
      questions regarding people that are not present here.


Colon's statements were ambiguous about whether he was refusing to

answer questions about only unindicted coconspirators or also

questions involving Teton's murder.              Even Colon's "no" answer to

the first question regarding Setiawan is unclear whether he meant

to   say   he   would    or   would    not     answer   questions   about   him.

Nonetheless, the district court ordered Colon's testimony stricken,

subject to reconsideration if Colon's attorney "allows him to

talk."     The attorney for Colon later reappeared and stated that "I

went to the cellblock and I spoke with David Colon Geigel.                    He

reiterated      his    position   to    testify     about    anyone."       This

representation did little to clarify Colon's intention and appeared

inconsistent with Colon's last statement that "I would answer

questions if I wasn't asked questions regarding people that are not

present here."        Nevertheless, the district court made no further

effort to clarify the scope of Colon's refusal.

             Despite the ambiguity of Colon's refusal, the district

court granted the government's request to strike his testimony.



                                      - 20 -
The court initially reasoned that attorneys for the defendants

other than Setiawan opened the door to the conspiracy questions.

Ultimately, however, the court concluded that Setiawan's attorney's

having asked Colon about Cascote and Colon's responses opened up

all questions related to the conspiracy, because Cascote was a

leader of the conspiracy.       Further, the court explained, even the

murder-related questioning opened the door for cross-examination

about the entire conspiracy because the murder was part of the

conspiracy. On this basis, the district court struck Colon's entire

testimony, including his direct testimony about Teton's murder.3

            "The Sixth Amendment guarantees criminal defendants the

right to present a defense, but that right is subject to the

government's legitimate interest in testing the truth of testimony

offered by the defense through cross-examination."          United States

v. Bartelho, 
129 F.3d 663
, 673 (1st Cir. 1997).           Therefore, "[a]

trial judge may strike a witness's direct testimony if he flatly

refuses   to    answer   cross-examination    questions   related   to   the

details of his direct testimony."
          Id. (internal quotation 
marks

omitted).      But if the prosecution asks about collateral matters -

- matters that are not "of consequence to the case" -- the district

court should "protect the defendant's right to present his defense,



     3Striking the entire testimony, the district court instructed
Setiawan's attorney: "I am sorry. Appeal the ruling. There you
have a very good potential appeal issue."


                                  - 21 -
if possible."
    Id. (citing United 
States v. Gary, 
74 F.3d 304
, 310

(1st Cir. 1996); United States v. Morla-Trinidad, 
100 F.3d 1
, 5

n.4 (1st Cir. 1996)).

            In certain circumstances, a district court may strike a

witness's    testimony       in    its      entirety,   rather    than    merely

restricting the scope of cross-examination.                See, e.g., United

States v. De La Cruz, 
996 F.2d 1307
, 1313 (1st Cir. 1993).                  But

here,   unlike   in    De     La    Cruz,     "effective   government     cross-

examination" about Teton's murder would not have been "seriously

impaired" if the prosecutor was not allowed to ask Colon about

nearly one hundred other coconspirators who had no relation to the

murder-related testimony.            The prosecutor could still inquire

about Colon's relationships with Setiawan and Cascote and Colon's

version of events on the night of the murder.

            Colon's testimony presented the district court with a

challenging situation.        Before the government was able to finish

cross   examining     Colon       about   Teton's   murder,      Colon   stopped

answering questions.        As discussed earlier, it is unclear from the

record whether Colon was refusing to answer questions covering

unindicted members of the conspiracy, a matter collateral to

Teton's murder, or broader questions concerning the murder.

            While the murder was part of the conspiracy, the extent

of the conspiracy and the participation, or lack thereof, of

hundreds of coconspirators constitute issues collateral to the


                                      - 22 -
murder.     In other words, the murder is "within the scope" of the

conspiracy, but the conspiracy is not "within the scope" of the

murder,     and     the   coconspirators'        participation    is    not    "of

consequence to the resolution of the issue[]" of who murdered

Teton. United States v. Castro, 
129 F.3d 226
, 231 (1st Cir. 1997).

Because the record was unclear whether Colon was refusing to answer

questions relating only to such collateral issues, the district

court     clearly    erred      by   striking    Colon's    testimony    without

ascertaining whether his refusal pertained to the murder or not

just collateral matters relating to unindicted coconspirators.

See 
Bartelho, 129 F.3d at 673
.

C. Cumulative Prejudicial Effect

            Because       the   court    admitted   evidence     that   Setiawan

committed the murder, we hold that under the Constitution or,

failing that, under the court's supervisory power to make the rules

of   evidence     just    and   fair    in   application,   Setiawan    must   be

permitted to offer evidence to show that he did not commit the

murder.     Under the current record, the district court erred by

precluding Setiawan from doing so by excluding the testimonies of

Ramos and Colon.

            In a nutshell, it is not appropriate that prejudicial

and highly inflammatory evidence -- here, that Setiawan killed

Teton in the course of the conspiracy -- could be admitted without

giving Setiawan an opportunity to show by reasonable evidence that


                                        - 23 -
he did not commit the murder. The rules of evidence are instituted

not for the splendor of their being but rather to make courts

administer fair and just trials.       See Fed. R. Evid. 102 ("These

rules should be construed so as to administer every proceeding

fairly, eliminate unjustifiable expense and delay, and promote the

development of evidence law, to the end of ascertaining the truth

and securing a just determination.").        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.

           We should not be read to overly fault the highly capable

trial judge.   In the high-speed context of trial, a trial judge

can do little else than make quick rulings and go where the

proceedings lead him or her.       But with the time and space to see

the whole trial in context, we are not merely free but bound to

prevent a manifest injustice.      Cf. United States v. Sepulveda, 
15

F.3d 1161
, 1195–96 (1st Cir. 1993).       And while appeals courts do

not often have to exercise this function, they do it when they

must, offering various explanations depending on what occurred at

the   lower-court   proceedings.      See,   e.g.,   United   States   v.

Sanabria, 
645 F.3d 505
, 516–19 (1st Cir. 2011); United States v.

Dwyer, 
843 F.2d 60
, 65 (1st Cir. 1988).

           The matter can be put in many different ways, and one

way may be more apt than others depending on the precise issue.         A

perfectly admirable example is our ruling in United States v.


                                - 24 -
Lombard in which the combined application of individually well-

accepted sentencing doctrines violated the Due Process Clause.

See United States v. Lombard, 
72 F.3d 170
, 175–87 (1st Cir. 1995).

The opinion in that case invoked the common-sense adage that the

whole is sometimes greater than the sum of its parts and that the

whole is what matters.        See, e.g.,
 id. at 175, 
177.

           We think the most certain basis for ordering a new trial,

albeit a basis that rarely has to be invoked, is what we have just

said: that reexamined in the leisure of an appeal, to allow

evidence   that   Setiawan     murdered      Teton   and   disallow   plausible

evidence   that   he    did   not    based    on   erroneous   rulings   is   an

unacceptable result.      On that basis, Setiawan's convictions must

be reversed, and the case remanded for a new trial.

                               IV.    Hernández

           Hernández raises one argument specific to his case: that

the district court should have declared a mistrial, or at least

given a curative instruction, after a police officer testified

about a Glock handgun and white powder recovered during a search

of Hernández's home.      Hernández neither contemporaneously objected

to the evidence's admission nor moved for a mistrial, so we review

for plain error.       See United States v. Walker, 
665 F.3d 212
, 229

(1st Cir. 2011) (unpreserved lay opinion objection reviewed for

plain error); United States v. Panet-Collazo, 
960 F.2d 256
, 260

(1st Cir. 1992) (same for belated mistrial request).


                                     - 25 -
            At trial, the officer testified that, while searching

Hernández's home pursuant to a warrant, he found "controlled

substances[, i.e.] a white, powdery substance" and a 9mm Glock

hidden in a secret compartment in some furniture.4                    Hernández

argues that the officer's statements identifying the white powder

as drugs constituted inadmissible lay-opinion testimony under

Federal Rule of Evidence 701 because the government did not build

a   foundation    sufficient     to    establish   that    the    officer    could

identify the powder as drugs simply by looking at it.

            We    need   not   reach    this   question,    however,    because

Hernández    cannot      establish     prejudice   under     the    plain-error

standard.        Multiple    witnesses    testified   that       Hernández    sold

thousands of dollars' worth of heroin every week and that he

carried a handgun at the drug point.           We will not find plain error

when "the challenged testimony constituted a tiny part of the

government's case."         
Walker, 665 F.3d at 230 
(further noting that

"it is wildly implausible that the jury would have reached a

different conclusion . . . in the absence of [the challenged]

testimony").




      4We do not address Hernández's other claims of error, which
"lack arguable merit," relating to the evidence seized from this
search. United States v. Rose, 
802 F.3d 114
, 117 (1st Cir. 2015).


                                      - 26 -
                                  V.    Gómez

             Gómez   principally       argues   that    the    district     court

deprived him of his constitutional rights to present a defense and

to   a   fair   trial   by   refusing    to   allow    the   jury   to   consider

voluminous Spanish-language documents related to his defense that

he was too busy being a community leader to have the time to be a

drug-conspiracy leader.       The district court provisionally admitted

the Spanish-language exhibits, delayed jury deliberations for

nearly one week to allow for translation, and ultimately instructed

the jury not to consider the untranslated documents.

             Gómez objected at trial, so the government urges us to

apply the abuse-of-discretion standard.                See United States v.

Pires, 
642 F.3d 1
, 13 (1st Cir. 2011).                 Under any standard of

review, the district court did not err when it complied with its

statutory duty to refuse to allow the jury to consider untranslated

documents.

             The Jones Act requires "[a]ll pleadings and proceedings"

in the District of Puerto Rico to be "conducted in the English

language."      48 U.S.C. § 864.       We have been clear that this is an

"independent duty of the district court" grounded in a policy of

integrating Puerto Rico with the rest of the United States and

that this duty is "too great to allow parties to convert [the

district] court into a Spanish language court at their whim."

United States v. Millán-Isaac, 
749 F.3d 57
, 63 (1st Cir. 2014)


                                   - 27 -
(citation omitted).      "[T]he duty of the [district] court to ensure

compliance with the Jones Act is not lessened in cases where

counsel . . . encourages the district court to set aside the

English-language requirement."