United States Court of Appeals
                     For the First Circuit

No. 16-2186

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                    EDWIN G. PEREZ-CUBERTIER,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Jay A. García-Gregory, U.S. District Judge]


                             Before

                       Howard, Chief Judge,
               Lipez and Thompson, Circuit Judges.


     Julia Pamela Heit for appellant.
     John Patrick Taddei, Attorney, Criminal Division, Appellate
Section, U.S. Department of Justice, with whom John P. Cronan,
Acting Assistant Attorney General, Criminal Division, U.S.
Department of Justice, Nina Goodman, Attorney, Appellate Section,
Criminal Division, U.S. Department of Justice, Rosa Emilia
Rodríguez-Vélez, United States Attorney, Mariana Bauzá-Almonte,
Chief, Appellate Division, Assistant U.S. Attorney, Edward G.
Veronda, Assistant U.S. Attorney, and Stuart J. Zander, Assistant
U.S. Attorney, were on brief for appellee.


                           May 7, 2020
            Per Curiam.   A jury convicted Edwin Perez-Cubertier

("Perez") of four counts of possessing with intent to distribute

controlled substances in a protected area and conspiring to do the

same.1    See 21 U.S.C. §§ 841(a)(1), 846, 860.   He now appeals his

conviction, raising two evidentiary issues and a constitutional

speedy trial claim.    Because we conclude that the district court

did not plainly err with respect to any of Perez's challenges, we

affirm.

                                 I.

            On appeal of a jury verdict, we recite the facts,

consistent with record support, in the light most favorable to the

jury's verdict.     See United States v. Lowe, 

, 47-48

(1st Cir. 1998).

            In June 2010, Perez was indicted for participating in a

large drug conspiracy conducted from 2006 to June 2010.          The

indictment alleged that Perez conspired with more than seventy

others to possess with intent to distribute controlled substances

within one thousand feet of a public housing facility and that he




     1 Appellant's name is spelled "Perez-Cubertier" on the cover
page of his own brief and on the district court docket, although
it is spelled "Perez-Couvertier" on his request for appointment of
counsel on appeal and on the appellate docket and "Perez-
Coubertier" at several points in the body of his brief. For the
purposes of this opinion, we adopt the spelling of appellant's
name reflected on the district court's docket.



                                - 2 -
committed four counts of possessing with intent to distribute

controlled substances in the same area.

               Within two weeks after the grand jury indicted Perez, a

cooperating witness notified Perez that he had been charged in the

indictment.2       Perez did not contact any law enforcement officers

and he did not hear from any law enforcement officers about the

charges until he was arrested in New York in 2014.

               Before his trial, Perez filed a motion in limine seeking

to exclude video evidence of the murders of two co-conspirators,

"Shaggy" and "Papito," under Federal Rules of Evidence 404(b) and

403.       The district court denied the motion.

               At Perez's trial, in which he was the sole defendant,

the government presented evidence that, from 2006 to 2010, members

of a drug trafficking organization called "La ONU" controlled drug

transactions      at   the    San   Martin   Public   Housing   Project   ("San

Martin") in San Juan, Puerto Rico.                According to government

witnesses, Perez served as a La ONU drug-point owner in San Martin

beginning in 2006.           Drug-point owners arranged for drugs to be

supplied to runners for delivery to drug points where the drugs



       2
       Maria Lopez-Calderon, the cooperating witness, testified
that she informed Perez of the charge against him sometime between
the return of the indictment (on June 10, 2010) and her arrest (on
June 14, 2010). In his reply brief, Perez challenges the veracity
of Lopez-Calderon's testimony, but, as described infra note 9, the
record does not support such a challenge.



                                       - 3 -
were sold.      Witnesses testified that, as a drug-point owner, Perez

attended members-only meetings of La ONU.              A drug ledger seized in

2008 listed Perez by a nickname, "Gamito," and indicated that he

had retrieved twenty dollars from one of La ONU's drug points.3

Video       evidence   showed      Perez   speaking    with     members    of     the

organization, including La ONU leaders Shaggy and Papito, near a

drug point in San Martin in October 2008.              One cooperating witness

testified that anyone attending the meeting shown in the video

would have been a member of La ONU.

              Although the government did not charge Perez as an

enforcer -- that is, a La ONU member tasked with "possess[ing],

carry[ing], brandish[ing], us[ing], and discharg[ing] firearms to

protect      the   leaders   and    members"    of    the   organization     --    it

presented evidence showing that Perez carried firearms as a part

of his role in the conspiracy.             Witnesses also testified that he

was present during shootouts with rival drug organizations and

dealers.

              Government     witnesses     testified    that,    in   late      2008,

another drug-point owner killed Perez's brother, who had also been

involved in La ONU.          Afterward, Perez told a co-conspirator that

he "was going to go for a while."              In February 2009, Perez moved


        3
       Perez testified that the handwriting on the ledger did not
say "Gamito," but because we recite the facts in the light most
favorable to the jury's verdict, we adopt the description provided
by the government witness. See 

.


                                       - 4 -
to New York, purportedly due to both concerns for his own safety

and the medical needs of his son, who suffers from cerebral palsy

and Dandy Walker Syndrome.

             The government also presented evidence that, in June

2009, a La ONU member murdered Shaggy and Papito at the request of

a La ONU leader, "Pitufo," who had learned that Shaggy and Papito

were planning to kill him.        The government attempted to introduce

a video of the murders, but Perez, renewing his pretrial motion in

limine,   objected   to   the    admission     of   the   video   but   not   the

testimony about the murders.            The district court reversed its

earlier ruling, prohibiting presentation of the video but allowing

testimony regarding the murders.

             Perez   testified     in    his    defense     that    he    never

participated in La ONU, let alone served as a drug-point owner.

He admitted, however, that he had previously participated in a

drug conspiracy in the years 2000 to 2001; his daughter and brother

lived in San Martin during the relevant period; he knew about the

drug conspiracy run by La ONU; his nickname was Gamito; and he was

close friends with Shaggy and Papito, whom he knew to be leaders

in La ONU.

             The jury returned a guilty verdict as to all five counts

and Perez timely appealed. He now argues that, because he withdrew

from the conspiracy at the end of 2008, the district court should

have excluded evidence of the conspiracy's activities occurring


                                    - 5 -
afterward or, alternatively, instructed the jury to ignore such

evidence.   Further, he contends that the district court improperly

admitted evidence of the murders as well as other evidence of La

ONU members' violent acts, as such evidence was barred by Federal

Rules of Evidence 404(b) and 403.       Finally, he asserts that the

four-and-a-half-year delay between his June 2010 indictment and

December 2014 arrest violated his Sixth Amendment right to a speedy

trial.

                                 II.

            We first address Perez's claim that the district court

should have excluded evidence of the conspiracy's activities after

2008 or instructed the jury to ignore such evidence.      In essence,

Perez asserts that, because he withdrew from the conspiracy "at

least by the end of 2008," the post-2008 evidence was irrelevant

as to the charges against him or, at least, "highly prejudicial."4

Because Perez neither objected to the admission of the post-2008

evidence    based   on   withdrawal,    nor   requested   a   limiting

instruction,5 our review is for plain error.       See Fed. R. Evid.


     4 Perez does not identify a specific evidentiary rule in
arguing that the post-2008 evidence was inadmissible or should
have been accompanied by limiting instructions. Without deciding
whether this omission waives the argument, we assume that Perez's
claim concerns the requirements of Federal Rules of Evidence 402
and 403, which provide for the exclusion of evidence when it is
irrelevant or its probative value is "substantially outweighed"
by, inter alia, the danger of unfair prejudice.
     5   Perez invokes the notion of withdrawal solely to support



                                - 6 -
103(e); United States v. Gomez, 

, 37 (1st Cir. 2001).

To establish plain error, Perez "must show '(1) that an error

occurred (2) which was clear or obvious and which not only (3)

affected    the   defendant's      substantial   rights,   but   also   (4)

seriously impaired the fairness, integrity, or public reputation

of judicial proceedings.'"         United States v. Williams, 

, 42 (1st Cir. 2013) (quoting United States v. Duarte, 

, 60 (1st Cir. 2001)).

            Perez has not met this standard. We may find plain error

only if the record so clearly showed Perez's withdrawal from the

conspiracy by 2008 that it was obvious error for the district court

to allow the jury to consider, without limitation, evidence of the

conspiracy's post-2008 criminal activity.              In support of his

argument,   Perez   notes   that    the   government   offered   no   direct

evidence that he engaged in the conspiracy after 2008, and, indeed,

he left for New York in early 2009.

            But "[m]ere cessation of activity in furtherance of [a]

conspiracy does not constitute withdrawal."             United States v.

Ciresi, 

, 27 (1st Cir. 2012) (first alteration in



his evidentiary argument that the district court should have
excluded the post-2008 evidence or instructed the jury to disregard
it. He did not argue in the district court, and does not argue on
appeal, that the evidence presented at trial was insufficient to
support findings of guilt on the charges against him because he
had withdrawn from the conspiracy.      We therefore address his
argument solely as an evidentiary matter.


                                    - 7 -
original) (quoting United States v. Juodakis, 

, 1102

(1st Cir. 1987) (per curiam)).            To prove withdrawal, the defendant

ordinarily       must    present      "evidence      that     [he]    confessed      his

involvement in the conspiracy to the government or announced his

withdrawal to his coconspirators."                United States v. George, 

, 55 (1st Cir. 2014).             The record here, at best, suggests

the "[m]ere cessation" of Perez's active participation in an

ongoing conspiracy. 

; see also United States

v. Munoz, 

, 1234 (1st Cir. 1994) (holding that lack of

evidence    of    defendant's        activities      during    last    two   weeks    of

conspiracy       did    not   demonstrate      withdrawal       from    conspiracy);

(concluding that admission of co-

conspirator's statement was not clear error because defendant's

cessation    of    activity     on    behalf    of    conspiracy       "constitute[d]

inaction rather than affirmative steps to distance himself from

his prior involvement" (quoting United States v. Guevara, 

, 46 n.9 (1st Cir. 2013))).

             Even if Perez's relocation to New York removed him from

day-to-day collaboration with others involved in the conspiracy,

there is no evidence that he communicated "to his co-conspirators

that he ha[d] abandoned the [conspiracy] and its goals," 

.         In fact, Perez himself notes that some of his

co-conspirators understood that his safety concerns, rather than

a repudiation of the conspiracy, motivated the move.


                                        - 8 -
           In sum, given the absence of evidence showing that Perez

had accomplished a withdrawal from the conspiracy, the district

court's decision to admit the post-2008 evidence, and later not

instruct the jury to ignore it, was not plain error.

                                  III.

           Perez next contends that the district court improperly

admitted evidence of his co-conspirators' violent acts, which he

claims was inadmissible under Rules 404(b) and 403.         According to

Perez, the district court should have excluded the testimony

related   to   Shaggy   and   Papito's    murders   as   well   as   a   co-

conspirator's statement that, to join La ONU, potential members

were required to kill someone.6




     6 Perez also purports to challenge the admission of "[o]ther
prejudicial testimony" related to "enemy competitors coming into
the projects that would be fired at or beaten up; that [two co-
conspirators] gave orders to have their competitors killed; [and
that] members of the organization would ride in cars and have
shootouts with people who were their enemies when there were
battles over the drug points," but he fails to discuss his
objections to this evidence with any particularity.         Perez's
cursory discussion of this evidence, coupled with his failure to
identify relevant portions of the trial transcript, "'hamstrings'
our ability to review the issues intelligently." González-Ríos v.
Hewlett Packard PR Co., 

, 20 (1st Cir. 2014) (alteration
omitted) (quoting Reyes-Garcia v. Rodriguez & Del Valle, Inc., 

, 15 (1st Cir. 1996)). We therefore do not reach Perez's
challenge to the admission of the "[o]ther prejudicial testimony"
his brief references. See United States v. Zannino, 

,
17 (1st Cir. 1990) (noting "settled appellate rule that issues
adverted to in a perfunctory manner, unaccompanied by some effort
at developed argumentation, are deemed waived").


                                  - 9 -
                  Perez forfeited his objection to the admission of the

murder-related testimony and waived his objection to the admission

of the co-conspirator's statement.                As for the murders of Shaggy

and Papito, the record reveals that although Perez's counsel

renewed her objection to the video of the murders, she did not

object to testimony about the murders.                Indeed, in excluding the

video, the district court stated, "I don't think [the government]

need[s] the video . . . . [The witness] can testify--," at which

point Perez's counsel interjected, "[t]hat they were killed and

whatever on whatever date."             As for the testimony about having to

kill someone to join La ONU, not only did Perez's counsel fail to

object to the abbreviated testimony on direct examination, but she

also re-elicited the testimony during her cross-examination, thus

waiving any challenge to its admission.7                     See United States v.

Reda,       

,   630   (1st   Cir.   2015)    ("In   this   circuit,


        7
       If Perez's counsel had elicited the testimony on cross-
examination to undermine its veracity, we might have a different
view about the waiver issue. Indeed, where unfavorable testimony
is first elicited on direct examination, frequently that testimony
will need to be brought up again on cross-examination to recast it
in a more favorable light. However, that was not the case here.
The mention of the requirement to kill someone on direct was cut
off by the prosecutor, and the cross-examination testimony called
greater attention to it. Specifically, when the prosecutor asked
what aspiring drug-point owners had to do, Lopez-Calderon
answered, "[D]ifferent things. If they had to have somebody
killed--." The prosecutor did not explore the issue further, but
Perez's counsel asked Lopez-Calderon on cross-examination whether
one of the jobs a person would have to do to become a drug-point
owner "would be to have somebody killed."           Lopez-Calderon
responded, "[o]n occasions, yes."


                                         - 10 -
'ordinarily, a party who elicits evidence would waive any claim

that its admission was error.'" (alteration omitted) (quoting

United States v. Harris, 

, 52 (1st Cir. 2011)).       We

accordingly limit our inquiry to whether the district court plainly

erred in admitting the murder-related testimony. See United States

v. Flemmi, 

, 86 (1st Cir. 2005).

          The district court did not plainly err in admitting the

murder-related testimony because neither Rule 404(b) nor Rule 403

indisputably barred such evidence.       Rule 404(b) prohibits the

admission of evidence of "crime[s], wrong[s], or other act[s]"

offered to prove a person's character.     Fed. R. Evid. 404(b)(1).

But the rule applies only "to evidence of other bad acts or

crimes," not to evidence of the crime charged.     United States v.

Arboleda, 

, 866 (1st Cir. 1991).      Thus, in another

drug conspiracy case, we upheld against a preserved challenge the

admission of evidence of an uncharged murder committed by a co-

conspirator.   See United States v. Ofray-Campos, 

, 35

(1st Cir. 2008).   There, we explained that, because the indictment

charged the co-conspirator as "an enforcer" or "hit man" for the

conspiracy, the evidence of the murder provided "direct proof of

the means used to carry out the conspiracy," rather than proof of

a distinct bad act falling within the ambit of Rule 404(b).

have likewise upheld against preserved challenges

the admission of evidence of violent conduct as direct proof of a


                               - 11 -
drug conspiracy.   See, e.g., United States v. McGill, 

, 881-82 (D.C. Cir. 2016) (upholding the admission of evidence

of uncharged assaults and attempted murder as direct proof of a

narcotics distribution conspiracy, as the charged conspiracy's

"broad scope" encompassed violent acts undertaken to, among other

things, "enforc[e] internal discipline").

          There is, at best for Perez, "a reasonable dispute" as

to whether the testimony about Shaggy and Papito's murders was

direct evidence of the charged conspiracy, and that "devastates

his position" on plain error review.    See United States v. Jones,

, 70 (1st Cir. 2014).     Here, as in Ofray-Campos, the

charged conspiracy's goal was drug distribution, but the alleged

means by which members pursued that goal were violent.    According

to the indictment, La ONU members "use[d] force, violence, and

intimidation in order to . . . discipline members of their own

drug trafficking organization."   In particular, leaders authorized

disciplinary action and other members carried out those orders.

Pitufo was a leader of La ONU at the time that he ordered the

murders of Shaggy and Papito.8    As such, testimony about Pitufo's

order and its execution could reasonably be viewed as offering



     8The indictment refers to two individuals nicknamed "Pitufo,"
one labeled as a leader and the other as an enforcer. Although
neither party makes clear which Pitufo killed Shaggy and Papito,
Perez's briefing indicates that the Pitufo who ordered the murders
was a leader at the time he ordered the murders.


                             - 12 -
"direct proof of the means used to carry out the conspiracy" and

illustrating the conspiracy's internal systems of discipline.   See

; see also 

-

82.   Rule 404(b) thus did not indisputably apply to, let alone

bar, the testimony about Shaggy and Papito's murders, so the

district court did not plainly err with respect to Rule 404(b) in

admitting the testimony.

          Nor did the admission of the murder-related testimony

constitute plain error under Rule 403, which permits courts to

exclude relevant evidence if its probative value is substantially

outweighed by, among other things, a danger of unfair prejudice.

See Fed. R. Evid. 403.     Regardless of the standard of review, we

review a district court's Rule 403 ruling "from the vista of a

cold appellate record" and thus reverse such rulings "only rarely

and in extraordinarily compelling circumstances."     United States

v. Vázquez-Larrauri, 

, 288 (1st Cir. 2015) (alteration

omitted) (quoting United States v. Vizcarrondo-Casanova, 

, 94 (1st Cir. 2014)); see also United States v. Rodriguez-

Estrada, 

, 156 (1st Cir. 1989) ("When all is said and

done, the district court must be ceded considerable latitude in

steadying the balance which Rule 403 demands.").

          No such circumstances are present here.    Concerns about

unfair prejudice arise when evidence "invites the jury to render

a verdict on an improper emotional basis" or when the evidence is


                               - 13 -
so "shocking or heinous" that it is "likely to inflame the jury."

See United States v. Laureano-Pérez, 

, 63 (1st Cir.

2015) (quoting United States v. Varoudakis, 

, 122 (1st

Cir. 2000)).     The testimony challenged here does not approach this

standard: the government aptly characterizes the testimony as

lacking "any detail" regarding the murders.           Indeed, Perez neither

contests this portrayal nor cites to the relevant portion of the

transcript.     See United States v. Rivera Calderón, 

, 98

(1st Cir. 2009) (finding no error in admission of testimony

describing uncharged murders "matter-of-factly, . . . leaving out

graphic details" in a drug conspiracy trial); 

(holding that district court did not plainly

err or abuse its discretion in admitting testimony that was not

"overly graphic" about an uncharged murder in a drug conspiracy

case).   The district court thus did not plainly err under either

Rule 404(b) or Rule 403 in admitting the testimony.

                                     IV.

              Last, Perez insists that the government violated his

Sixth Amendment right to a speedy trial by arresting him five years

after the grand jury indicted him.          The parties agree that Perez

did not preserve this argument and that this court therefore

reviews his claim for plain error.          We accordingly assume without

deciding that our review is for plain error.                See, e.g., United

States   v.    Mosteller,   

,   508   n.6   (4th   Cir.   2014)


                                   - 14 -
(reviewing constitutional speedy-trial arguments raised for the

first time on appeal for plain error).

            The Sixth Amendment guarantees that, "[i]n all criminal

prosecutions, the accused shall enjoy the right to a speedy . . .

trial."   U.S. Const. amend. VI.         In Barker v. Wingo, 

(1972), the Supreme Court established a four-part balancing test

to determine whether a defendant's constitutional speedy trial

right has been abridged, requiring assessment of (1) whether delay

before trial was unusually long; (2) whether the government or the

defendant   is   more    to   blame   for   that   delay;    (3)   whether   the

defendant timely asserted his right to a speedy trial; and (4)

whether he suffered prejudice as a result of the delay.                      See

Doggett v. United States, 

, 651 (1992) (citing 

).       "These factors cannot be plugged into a formula

that operates with scientific precision[,]" and instead "must be

considered on a case-by-case basis 'together with such other

circumstances as may be relevant.'"            United States v. Mala, 

, 1061 (1st Cir. 1993) (quoting 

).

            The district court did not plainly err in permitting the

government's case to proceed despite the four-and-a-half-year

delay between Perez's indictment and arrest.                The parties agree

that the first factor -- the length of the delay -- favors Perez.

See, e.g., United States v. Handa, 

, 101-02 (1st Cir.

2018) (noting that "[w]hile 'there is no bright-line time limit'"


                                      - 15 -
applied in assessing speedy trial violations, "a 'delay of around

one year is considered presumptively prejudicial'" (alterations

omitted) (quoting United States v. Irizarry-Colón, 

, 68

(1st Cir. 2017)).

             We assume, favorably to Perez, that the second factor

--   the    reason   for   the   delay   --   weighs   slightly    against     the

government. Whereas deliberate delays designed to hamper a defense

constitute      weighty     evidence     in    favor    of   the       defendant,

prosecutorial negligence carries less weight in the speedy trial

analysis.     See United States v. Johnson, 

, 123 (1st

Cir. 1978); cf. 

(weighing against the

government its failure to make any serious efforts to locate

defendant for six years, even if its "lethargy may have reflected

no more than [the defendant's] relative unimportance in the world

of   drug    trafficking").        Perez      has   presented     no   proof   of

deliberateness in the government's conduct and the government has

offered no explanation for the period of inactivity between the

indictment and Perez's arrest.           We decline to decide which party

bears the burden of persuasion on plain error review and similarly

refrain from resolving whether silence coupled with a four-and-a-

half-year delay establishes official negligence under the plain

error standard.      Cf. 

(in addressing speedy

trial claim de novo, focusing on "the reason the government assigns

to justify the delay").          Compare United States v. Mensah-Yawson,


                                     - 16 -
489    F.    App'x     606,   610-11   (3d   Cir.    2012)    (placing     burden   of

persuasion for second factor on government on plain error review),

with United States v. Williams, 

, 384 (6th Cir.

2017) (determining, on plain error review, that second factor

favored neither party where "the record before [the court] [was]

silent as to the reasons for the actual delay," "largely due to

the fact that [the defendant] did not bring a speedy-trial claim

at or before trial").             We instead assume, favorably to Perez,

that this delay resulted from prosecutorial negligence, leading us

to slightly favor Perez on the second factor.

                  But the third factor -- whether the defendant asserted

his speedy trial right -- significantly undermines Perez's claim.

His failure to raise his Sixth Amendment claim at any point before

this    appeal       is   "entitled     to   strong    evidentiary        weight"   in

determining whether he has been deprived of his constitutional

rights.      

-32.            Although a defendant "has no

duty to bring himself to trial" and does not waive his Sixth

Amendment claim by not raising it in district court, he does have

some responsibility to assert his speedy trial claim.                     See Look v.

Amaral, 

, 6-7 (1st Cir. 1984) (noting that, absent an

inquiry by the defendant into "the status of the action against

him,"       the    "circumstances      strongly     suggest   .   .   .    that   [the

defendant] gambled with his right, hoping . . . that either his

case would be overlooked or that, unreminded, the [government's]


                                        - 17 -
delay would ripen into a period that would improve his chances for

acquittal    on     [S]ixth   [A]mendment          grounds").      Here,   testimony

adduced at trial indicates that Perez was aware of the charges

against him as early as mid-2010,9 yet he apparently made no inquiry

over the following years.             As such, the third factor counsels

against finding that he was deprived of his speedy trial rights.

            The fourth factor -- prejudice to the defendant --

similarly weighs against Perez.                "The prejudice prong seeks to

protect     three       interests:    avoidance        of   oppressive      pretrial

incarceration, minimizing anxiety and concern, and limiting the

possibility that the defense will be impaired."                   United States v.

Carpenter, 

, 614 (1st Cir. 2015).                   "As a general rule,

the defendant bears the burden of alleging and proving specific

ways in which the delay attributable to the [government] unfairly

compromised       his    ability     to     defend    himself";     however,    such


     9 As noted supra note 2, Perez challenges the veracity of this
testimony in his reply brief, arguing that "[a] reading of
Perez'[s] entire testimony reasonably establishes that he had no
[] knowledge [of the charges]." This argument stands in direct
tension with Perez's assertion that pre-arrest knowledge of the
charges caused him anxiety that is cognizable under Barker's
prejudice   prong.       Moreover,   we   disagree   with   Perez's
characterization of the record. Perez never testified about the
alleged conversation in which Lopez-Calderon informed him of the
charges, and although he did testify that he lived his life openly
in New York and was not hiding between the time of his indictment
and arrest, that testimony in no way suggests that he was unaware
of the charges against him. Thus, Lopez-Calderon's testimony that
she informed Perez of the charges against him shortly after the
indictment stands uncontested.



                                          - 18 -
prejudice     may   sometimes   be   presumed    "[i]n   aggravated   cases,

involving grossly excessive delay."           Rashad v. Walsh, 

,

34 (1st Cir. 2002).

             Here, the only prejudice Perez has alleged is anxiety

and fear concerning his arrest and the prospect that his arrest

"would upend his life and that of his family."10          " A defendant must

struggle to satisfy the prejudice prong after conviction, when two

of   the    three   factors   relevant   to    the   prejudice   analysis   --

excessive pre-trial incarceration and impairment of an effective

defense -- are of little or no relevance."           

.    Moreover, assertions of apprehension or agitation resulting

from pre-trial knowledge of the pending charges are not enough;

rather, the anxiety must become "undue pressure[]" more severe

than the stress that "normally attends the initiation and pendency


       10
        Perez claims that "witnesses could have easily become
unavailable to him, memories could have been impaired due to the
passage of time or evidence can become unavailable." But, because
we do not presume prejudice on plain error review of a Sixth
Amendment claim, we conclude that such hypothetical damage to
Perez's defense does not suffice. Cf. United States v. Olano, 

, 739-41 (1993) (finding that defendants failed to meet
their burden to show prejudice under the plain error test where
they made "no specific showing" of harm).      The outcome of the
speedy trial analysis is likewise unchanged by two arguments that
Perez raises for the first time in his reply brief: that his young,
disabled son will be harmed by Perez's imprisonment and that he
might have been able to secure a plea deal if arrested promptly.
Because these arguments made their debut in his reply brief, we
deem them waived. See Sparkle Hill, Inc. v. Interstate Mat Corp.,

, 29 (1st Cir. 2015) ("[W]e do not consider arguments
for reversing a decision of a district court when the argument is
not raised in a party's opening brief.").


                                     - 19 -
of criminal charges."   United States v. Henson, 

, 438

(1st Cir. 1991).    While we do not doubt that Perez's fears were

acute, he fails to offer any way in which they constituted an

"undue pressure" or were more severe than the fears that are

endemic to criminal prosecutions.     See 

("While [appellant] argues convincingly that he has suffered great

stress throughout the proceedings, he does not demonstrate why his

anxiety was greater than that suffered by many other defendants,

other than that it continued longer.").     As such, the final factor

of the speedy trial balancing test militates against reversal.

          Taken    together,   the   four   Barker   factors   do   not

indisputably establish that the government violated Perez's Sixth

Amendment speedy trial right.11      See United States v. Rice, 

, 1081-82 (D.C. Cir. 2014) (holding that failure to

dismiss indictment was not plain error where only some of the

Barker factors favored defendant).      The district court's failure

to dismiss the indictment thus did not constitute plain error.12


     11 Perez invites us, in the alternative, to remand his case
to the district court so that the factors discussed above "can
fairly be explored." "[N]o decision cited to us" -- indeed, Perez
cites none in the one sentence he dedicates to his request in his
opening brief -- "and none of which we are aware, establishes a
basis" for such an order. See Cheshire Med. Ctr. v. W.R. Grace &
Co., 

, 31 (1st Cir. 1995). We therefore decline his
request.
     12Both with respect to his speedy trial claim and at various
points in his evidentiary objections, Perez argues that his trial
counsel's failure to raise those issues demonstrates that he



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See 

("[A]n error open to reasonable dispute

is not plain error.").

                                V.

          For the foregoing reasons, we affirm Perez's conviction

and sentence.   So ordered.




received constitutionally ineffective assistance of counsel. His
contentions regarding his attorney's deficiencies are far from
clear, however.    Even if Perez articulated his argument more
clearly, we would find no reason to review his claim here. As we
recently reiterated:
          "We have held with a regularity bordering on
          the monotonous that fact-specific claims of
          ineffective assistance cannot make their debut
          on direct review of criminal convictions, but,
          rather, must originally be presented to, and
          acted upon by, the trial court." In adopting
          this prudential praxis, we have reasoned that
          "such claims typically require the resolution
          of factual issues that cannot efficaciously be
          addressed in the first instance by an
          appellate tribunal." . . . Unless "the
          critical facts are not genuinely in dispute
          and the record is sufficiently developed to
          allow reasoned consideration" of a claim of
          ineffective assistance, a criminal defendant
          who wishes to pursue such a claim must do so
          in a collateral proceeding.
United States v. Santana-Dones, 

, 82 (1st Cir. 2019)
(internal citations omitted) (first quoting United States v. Mala,

, 1063 (1st Cir. 1993); then quoting United States v.
Natanel, 

, 309 (1st Cir. 1991)).          The limited
development of this issue in Perez's brief, and his failure to
point to specific portions of the record that support his
ineffective assistance of counsel claim, result in inadequate
detail to evaluate why his trial counsel made or did not make
certain decisions.


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