United States v. Teixeira ( 2023 )


Menu:
  •           United States Court of Appeals
    For the First Circuit
    No. 21-1631
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    ADILSON TEIXEIRA,
    Defendant, Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. Richard G. Stearns, U.S. District Judge]
    Before
    Kayatta, Selya, and Gelpí,
    Circuit Judges.
    Gregory M. Lipper and LeGrand Law PLLC on brief for appellant.
    Rachael S. Rollins, United States Attorney, and Randall E.
    Kromm, Assistant United States Attorney, on brief for appellee.
    March 10, 2023
    SELYA,     Circuit      Judge.       This    appeal     poses    a   vexing
    question as to the extent to which a judge may factor his personal
    knowledge of a subject into the decisional calculus.                       Concluding,
    as we do, that the court below did not stray into forbidden terrain
    in   this    regard     and   that    the     record     is   otherwise      free   from
    reversible error, we affirm the judgment below.
    I
    We briefly rehearse the relevant facts and travel of the
    case.     In November of 2016, defendant-appellant Adilson Teixeira
    pleaded guilty to drug-trafficking and firearms charges.                          See 
    21 U.S.C. §§ 846
    , 841(a)(1); 
    18 U.S.C. § 922
    (g)(1).                      On February 2,
    2017, the district court sentenced Teixeira to a forty-one-month
    term of incarceration to be followed by a three-year term of
    supervised release.
    Teixeira served his prison sentence and was released in
    April   of    2019.       His    supervised       release     term    proved      to   be
    tumultuous:     the first two years included a series of violations,
    revocation hearings, and consequent modifications of the term.
    The district court found that Teixeira had violated the conditions
    of his supervised release by, among other things, associating with
    persons      involved    in     criminal        activity,     using    a     controlled
    substance, and committing a crime (operating a motor vehicle with
    a suspended license).           The upshot was that Teixeira began serving
    a new term of supervised release on March 19, 2021.
    - 2 -
    Past proved to be prologue, and on July 1, 2021, a
    preliminary revocation hearing was held before a magistrate judge
    to address a new complement of alleged violations.                     The government
    asserted that Teixeira had failed a drug test, had failed to
    participate     in        a    substance       abuse   counselling      program,   had
    possessed a firearm, and had committed a crime by possessing a
    firearm   as    a    convicted       felon.        Following    this    hearing,   the
    magistrate judge ordered Teixeira detained.
    The district court held a final revocation hearing on
    August 10, 2021.              Teixeira did not dispute the two drug-related
    violations, conceding that he had failed a drug test and had failed
    to take part in a drug counselling program.                    But he disputed the
    charges that he had possessed a firearm.1
    At       the       hearing,   the    government     called    a   probation
    officer, Julianne Robinson, as a witness.                 Robinson testified that
    she had received two recordings of Snapchat videos2 from the
    Taunton, Massachusetts police department, one depicting Teixeira
    in a music studio holding what appeared to be a firearm and the
    other depicting Teixeira driving a vehicle with what appeared to
    1 The firearms offenses were classified as Grade A violations
    of supervised release, which are the most serious.        See USSG
    §7B1.1(a)(1).
    2 Snapchat is a social media app through which users can send
    or post images or videos that disappear either after a recipient
    views them or after a certain period of time has elapsed.
    - 3 -
    be a firearm in his lap.       In the second video, a man — later
    identified as James Martin — was sitting in the front passenger
    seat.     Martin was a friend of Teixeira's who had a side business
    involving the production of music videos.
    The government then called special agent Patrick Briody,
    a ten-year veteran of the Federal Bureau of Alcohol, Tobacco,
    Firearms and Explosives.    When asked about the music studio video,
    Briody explained that he "saw what appeared to be possibly a Glock
    pistol with an extended magazine in it, having the characteristics
    of what I recognize to be a firearm."       He said that the gun in the
    video appeared to be a Glock 26 and expounded on the particular
    characteristics of Glock 26 pistols.       With respect to the vehicle
    video, he testified that "[s]imilarly, . . . the item [seen on
    Teixeira's lap] had characteristics consistent with what would be
    a firearm."     Briody went on to explain that, after reviewing the
    videos, he interviewed      Martin,   who told   him that the weapon
    Teixeira was holding in the vehicle video was one of Martin's three
    prop guns.    Martin later provided Briody with two of his prop guns
    but could not produce the third.         Briody testified that the two
    prop guns that Martin showed him were not the guns depicted in the
    videos.
    On cross examination, Briody was presented with two
    photographs.     Although it is not entirely clear from the record,
    these photographs seem to have been photographs of Martin's third
    - 4 -
    prop gun, with one of the photographs depicting the weapon with an
    extended magazine. Briody examined the first photograph and stated
    that he "would say that could be a firearm" but "it could be a
    replica."    It was, however, "definitely different" than the weapon
    depicted    in   the    music      studio   video     and    "would    appear    to    be
    different" than the weapon depicted in the vehicle video.                       He also
    testified    that      the   gun    shown    in    the      second    photograph      was
    inconsistent with the characteristics of the guns depicted in the
    videos.
    To   buttress       its   case,     the    government       presented      an
    affidavit from Briody that had been executed in support of an
    application for a warrant to search Teixeira's cellphone.                       Briody
    testified that the search related to a separate investigation into
    firearms    trafficking         between     Ohio      and    Massachusetts.           The
    affidavit relied on electronic communications (text messages)
    between Teixeira and an alleged co-conspirator, which appeared to
    discuss the trafficking of firearms.                The affidavit also included
    the summary of an interview that Briody had conducted with a man
    in Ohio labelled K.M., who the affidavit stated had admitted to
    purchasing firearms in Ohio for resale by the co-conspirator in
    Massachusetts.         And in addition, the affidavit described the
    - 5 -
    movement of funds by means of Cash App3 between Teixeira and the
    co-conspirator and between Teixeira and K.M.
    Teixeira's counsel objected to the admission of the
    affidavit on the ground that it included "communications from text
    messages from another phone from another gentleman who apparently
    is    a       cooperator    or    a   coconspirator"       and   "interviews      with   a
    gentleman in Ohio who's not before the Court."                     In counsel's view,
    the       affidavit        "contain[ed]        hearsay     evidence,"     and     counsel
    complained that he could not "cross-examine an affidavit.                           Under
    Rule 32.1, I'm entitled to inquire into adverse witnesses."                            The
    court responded that "[t]he confrontation clause doesn't apply in
    a    probation         violation      hearing,"   overruled       the   objection,     and
    admitted         the    affidavit.        Although       Teixeira's     counsel    cross-
    examined         Briody,     he    did   not    elicit     any   testimony      from   him
    concerning the Ohio investigation.
    In his defense, Teixeira called Martin, who testified
    that he had produced the Snapchat videos.                        He asserted that the
    guns depicted in the videos were props.
    The district court concluded that the government had
    shown by a preponderance of the evidence that at least one of the
    weapons depicted in the videos was a real firearm and that,
    3   Cash App is a mobile app for peer-to-peer money transfers.
    - 6 -
    therefore, Teixeira had violated the conditions of his supervised
    release:
    I am convinced, and here I am relying
    principally on the agent's opinion, especially
    with respect to the Glock 26.       Perhaps I
    shouldn't know this, but I am a firearm[s]
    owner, and I actually know these guns pretty
    well; and that is a Glock 26 in my judgment,
    at least by a preponderance of the evidence,
    as I understand my own opinion being
    corroborated and relying on the agent's
    testimony. I do credit it, and, therefore, I
    do find that there is a violation of
    conditions, and I'm going to revoke supervised
    release.
    Having made this determination, the court                   sentenced
    Teixeira to a two-year term of imprisonment.                This timely appeal
    followed.
    II
    A district court may revoke a term of supervised release
    if the government proves by a preponderance of the evidence that
    the releasee violated a release condition.               See United States v.
    Colón-Maldonado,    
    953 F.3d 1
    ,    3    (1st   Cir.    2020);     
    18 U.S.C. § 3583
    (e)(3).     The Federal Rules of Evidence do not apply in
    revocation    proceedings,     but      the   evidence      presented    must     be
    reliable.     See United States v. Portalla, 
    985 F.2d 621
    , 622 (1st
    Cir. 1993).
    Teixeira's claims of error all relate to the district
    court's     determination     that      the    government      proved,       by    a
    - 7 -
    preponderance of the evidence, that he possessed a firearm (in
    violation of conditions of his supervised release).                Teixeira
    challenges the judge's reference to his (the judge's) knowledge of
    firearms, the admission of the affidavit, and whether the violation
    was shown by a preponderance of the evidence.         We consider these
    interrelated    claims   sequentially,    mindful   that    the   district
    court's determination rested upon a finding that the videos showed
    Teixeira handling one or more real firearms.
    III
    Teixeira's   most   loudly    bruited   claim   is    that   the
    district court's reference to its own familiarity with firearms
    during its ruling at the conclusion of the revocation hearing was
    in error.    We divide our discussion of this claim into two parts.
    A
    Our starting point is the standard of review.         Preserved
    claims of error arising out of a judge's handling of revocation
    proceedings are typically reviewed for abuse of discretion.              See
    United States v. Mulero-Díaz, 
    812 F.3d 92
    , 97 (1st Cir. 2016).
    Here, however, the government insists that Teixeira's failure to
    object to the district court's statements below relegates this
    claim of error to plain error review.4       Teixeira responds that he
    4 Review for plain error is a "heavy burden." United States
    v. Correia, 
    55 F.4th 12
    , 41 (1st Cir. 2022). Under that standard,
    the appellant must prove "(1) that an error occurred (2) which was
    clear or obvious and which not only (3) affected the defendant's
    - 8 -
    had no meaningful opportunity to object to the district court's
    statements, which were made at the conclusion of the revocation
    hearing as part of the court's oral decision.
    When a party fails to make a contemporaneous objection
    below, a counterpart claim of error is ordinarily subject to plain
    error review on appeal.            See United States v. Franklin, 
    51 F.4th 391
    , 400 (1st Cir. 2022).             But that rule is not absolute.                If a
    party did not have a fair opportunity to object to a particular
    ruling below, a counterpart claim of error is not relegated to
    plain error review.          See, e.g., United States v. Mojica-Rivera,
    
    435 F.3d 28
    , 35 (1st Cir. 2006); Fed. R. Crim. P. 51(b).                       For an
    opportunity to object to be sufficient, it "must have arisen prior
    to    the   trial    court's      entry   of    judgment."      United   States       v.
    Rodriguez,     
    919 F.3d 629
    ,      634    (1st   Cir.   2019).     The    "mere
    possibility that an aggrieved party might be able to file a motion
    for    reconsideration       is    not    the    functional    equivalent      of    the
    opportunity to object."            
    Id.
    In this instance, the district court did not refer to
    its own knowledge of firearms until the conclusion of the hearing
    when it was rendering a bench decision.                Teixeira had no reason to
    anticipate that such a statement would be forthcoming.                      And once
    substantial rights, but also (4) seriously impaired the fairness,
    integrity, or public reputation of judicial proceedings." United
    States v. Duarte, 
    246 F.3d 56
    , 60 (1st Cir. 2001).
    - 9 -
    its bench decision was announced, the court immediately shifted
    gears and went on to a different phase of the proceeding (the
    sentence to be imposed).      The hearing ended soon thereafter.
    Taking   a   practical   view   of   the   circumstances,   we
    conclude that Teixeira did not have a fair opportunity to object,
    on the spot, to the judge's allusion to his personal knowledge of
    firearms.     When making his ruling that a violation had occurred,
    the judge did not invite comments from the lawyers but, rather,
    proceeded immediately to the separate question of the sentence to
    be imposed.    Interrupting a judge in mid-stride is risky business
    for a lawyer, and Teixeira's counsel was caught between a rock and
    a hard place.    We hold, therefore, that Teixeira's claim of error
    is not relegated to plain error review.          Our review, instead, is
    for abuse of discretion.
    B
    We turn next to the merits.      We start by acknowledging
    that a judge presiding over a revocation hearing must act in two
    roles when deciding whether a violation has occurred:          the judge
    must be both an "unbiased neutral arbiter[]" and a factfinder.
    United States v. Ayala-Vazquez, 
    751 F.3d 1
    , 28 (1st Cir. 2014).
    In neither of these capacities is it permissible for a judge to
    undertake his own extrajudicial investigation of the facts.              A
    judge may not, for example, unilaterally reach out to witnesses,
    make an ex parte trip to view the scene of the dispute, or undertake
    - 10 -
    his own fact-gathering outside of court.      See Lillie v. United
    States, 
    953 F.2d 1188
    , 1189-90 (10th Cir. 1992); see also State v.
    Malone, 
    963 N.W.2d 453
    , 464-65 (Minn. 2021); State v. Baker, 
    667 P.2d 416
    , 418 (Mont. 1983).   So, too — apart from facts susceptible
    to judicial notice, see Fed. R. Evid. 201(b) — it is impermissible
    for a judge to consider evidence that has not been introduced.
    See United States v. Berber-Tinoco, 
    510 F.3d 1083
    , 1091 (9th Cir.
    2007); Fox v. City of W. Palm Beach, 
    383 F.2d 189
    , 194-95 (5th
    Cir. 1967); cf. Warger v. Shauers, 
    574 U.S. 40
    , 51-52 (2014)
    (discussing types of knowledge that jury may not consider when
    finding facts).   If a judge oversteps these bounds, the judge, in
    effect, impermissibly assumes the role either of a witness, see
    United States v. Paiva, 
    892 F.2d 148
    , 158 (1st Cir. 1989), or of
    an advocate.
    The rule, though, is more easily stated than applied.
    After all, it is always permissible for a judge, acting in his
    capacity as a factfinder, to use his knowledge and experience to
    assess the credibility of witnesses and to evaluate the evidence.
    See Hersch v. United States, 
    719 F.2d 873
    , 878 (6th Cir. 1983).
    But applying one's knowledge in assessing whether a fact is
    adequately proven is not the same as introducing a new fact into
    evidence.   Just as jurors may permissibly rely on their knowledge
    and experience to evaluate evidence, see United States v. Ortiz,
    
    966 F.2d 707
    , 712 (1st Cir. 1992), so may a judge.
    - 11 -
    Here, Teixeira labors to portray the district judge as
    having strayed into forbidden terrain.                       He characterizes the
    judge's    statements         as   "relying       on    personal       evidence"      from
    "personal observations about his own, private gun collection" and
    "comparing      his    own    firearms      to   the    objects     depicted     in    the
    video[s]."       Those actions, Teixeira complains, "flouted settled
    limits    on    judges'      ability   to     rely     on   their    own   evidence    or
    investigation."
    We reject Teixeira's plaint.                 A judge, sitting as a
    factfinder, is allowed — indeed, obliged — to bring to bear his
    own knowledge and experience in evaluating the evidence admitted
    in the case.       See Hersch, 
    719 F.2d at 878
    .                 There is nothing in
    the record to suggest that the judge in this case exceeded the
    bounds    of    that    authority.           Fairly     read,    the    record     belies
    Teixeira's      assertion      that    the    judge     relied      upon   "a   specific
    comparison based on evidence not shared with the parties."                         Nor is
    there anything to suggest that the judge either conducted an
    independent investigation into facts pertinent to the case or
    introduced any new evidence into the decisional calculus.                              The
    judge — in his own words — "rel[ied] principally on the agent's
    opinion" in reaching the conclusion that at least one of the guns
    was real.       We find nothing amiss in the fact that the judge's
    personal knowledge and experience informed his assessment of the
    - 12 -
    evidence and — as the judge stated — "corroborated" his decision
    to credit Briody's testimony.
    Teixeira rejoins that our opinion in Chart House, Inc.
    v. Bornstein, 
    636 F.2d 9
     (1st Cir. 1980), demands a contrary
    result.   We disagree.
    In that case, the district court denied a preliminary
    injunction sought by the holder of a registered service mark
    seeking to enjoin another business's use of a similar name.     See
    
    id. at 10
    .   The court had been presented with detailed evidence
    tending to show intent to sow confusion, but concluded summarily
    that there was "little likelihood of confusion between the two
    establishments."    
    Id.
       We reversed, explaining that the district
    court had failed to make any adequate or accurate findings as to
    the evidence.    See 
    id. at 10-11
    .
    At the same time, we "note[d] our concern" regarding the
    judge's commentary during the hearing, in which he extemporized:
    "I don't know how many times I drove by [the defendant's business],
    and I was never tempted to stop — . . . .    It struck me as one of
    those selfcontained apartment units . . . ."     
    Id. at 10
    , 11 n.4
    (alterations in original).    We expressed our disapproval, stating
    that for a trial court "to interject its personal evidentiary
    observations is against basic principles" and that, in any event,
    its personal conclusions contradicted the record evidence.   
    Id. at 10-11
    , 11 n.4.
    - 13 -
    Teixeira argues that the district court's conduct in
    this case rests on an even more porous foundation:                 the district
    court's observations in Chart House, the argument goes, were at
    least based on its perusal of public roads, rather than a private
    collection of firearms.           See 
    id. at 10
    .       Teixeira's argument,
    however, glosses over a critical distinction between Chart House
    and the case at hand. In Chart House, the court had gained specific
    extrajudicial     knowledge        of   the     evidence     by     independent
    investigation (driving by the defendant's business) and used that
    information to assess the likelihood of confusion.                See 
    id.
        Here,
    by contrast, it is clear from the district judge's statements that
    he undertook no independent investigation but, rather, simply
    applied his previously acquired knowledge of a particular subject
    to the case before him.        Put another way, the judge did no more
    than use his own background knowledge and experience to assess the
    evidence introduced in the case.         That was the judge's job, and we
    discern   no   abuse   of   the    district    judge's     discretion       in   his
    statements regarding his knowledge of firearms.
    IV
    Teixeira     next      assails     the   admission      of   Briody's
    affidavit, which incorporated text messages between Teixeira and
    an alleged co-conspirator and a summary of Briody's interview with
    K.M. Teixeira submits that the admission of the affidavit abridged
    his rights of confrontation and due process.                 See U.S. Const.
    - 14 -
    amends. V, VI. Relatedly, Teixeira asserts that the district court
    abused    its   discretion    in     admitting    the   affidavit    without
    conducting the balancing required by Federal Rule of Criminal
    Procedure 32.1(b)(2)(C).       Had this balancing been conducted, he
    submits, the affidavit would have been excluded.
    A
    We start with Teixeira's constitutional claims.                 His
    principal plaint — that his right to confrontation was abridged —
    implicates the Sixth Amendment.               See U.S. Const.    amend. VI.
    Because   the   district     court     treated    Teixeira's    argument   as
    referring to the Sixth Amendment, we treat this claim as preserved.
    Cf. United States v. Rivera-Berríos, 
    968 F.3d 130
    , 134 (1st Cir.
    2020) (explaining that to preserve a claim of error, "[i]t is
    enough if the objection is 'sufficiently specific to call the
    district court's attention to the asserted error'" (quoting United
    States v. Soto-Soto, 
    855 F.3d 445
    , 448 n.1 (1st Cir. 2017))).              Our
    review, therefore, is de novo.         See United States v. Rondeau, 
    430 F.3d 44
    , 47 (1st Cir. 2005).
    Even so, we need not linger long over Teixeira's claim.
    The short answer to it is that a releasee does not have a Sixth
    Amendment right to confront adverse witnesses during revocation
    proceedings.     See Franklin, 51 F.4th at 396.           Instead, a more
    limited confrontation right applies during revocation proceedings
    through the Federal Rules of Criminal Procedure. See Fed. R. Crim.
    - 15 -
    P. 32.1(b)(2)(C); see also Rodriguez, 
    919 F.3d at 635
    .           Teixeira
    invites us to reconsider this legal framework in light of the
    Supreme Court's decision in Crawford v. Washington, 
    541 U.S. 36
    (2004).   We decline this invitation.    Given the special nature of
    revocation proceedings, see, e.g., Rondeau, 
    430 F.3d at 47
    , there
    is no reason to think that a long line of precedents developed
    over time should be discarded now.       No other court has extended
    Crawford to revocation proceedings, see, e.g., Rondeau, 
    430 F.3d at 47-48
    , and we see no principled basis for us to blaze a new
    trail.
    Teixeira also hints at a Fifth Amendment claim for denial
    of due process. See Morrissey v. Brewer, 
    408 U.S. 471
    , 489 (1972).
    This claim, though mentioned, is undeveloped and unaccompanied by
    pertinent authority. It is the "settled appellate rule that issues
    adverted to in a perfunctory manner, unaccompanied by some effort
    at developed argumentation, are deemed waived."        United States v.
    Zannino, 
    895 F.2d 1
    , 17 (1st Cir. 1990).       So it is here.
    B
    This   leaves   Teixeira's   claim   under   Federal   Rule   of
    Criminal Procedure 32.1(b)(2)(C).        In revocation proceedings,
    releasees have a limited right of confrontation, see Rodriguez,
    
    919 F.3d at 635
    , under which a releasee does not have a right to
    question a witness against him if "the court determines that the
    interest of justice does not require the witness to appear," Fed.
    - 16 -
    R. Crim. P. 32.1(b)(2)(C); see United States v. Fontanez, 
    845 F.3d 439
    , 443 (1st Cir. 2017).        To determine whether the interests of
    justice require a particular witness to appear, the court must
    "balance 'the releasee's right to confront witnesses with the
    government's     good   cause   for    denying   confrontation.'"     United
    States v. Marino, 
    833 F.3d 1
    , 5 (1st Cir. 2016) (quoting Rondeau,
    
    430 F.3d at 48
    ).        In this process, the court should "weigh both
    the   apparent    reliability     of    the    hearsay   evidence   and   the
    government's proffered reason for not producing the declarant."
    Rodriguez, 
    919 F.3d at 635
     (quoting Fontanez, 
    845 F.3d at 443
    ).
    Teixeira contends that the admission of the affidavit
    transgressed the strictures of Rule 32.1.           Because this contention
    was made below, our review ordinarily would be for abuse of
    discretion. See Rondeau, 
    430 F.3d at 48
    . Under that multi-faceted
    standard, "we examine the district court's legal conclusions de
    novo, its findings of fact for clear error, and its judgment calls
    with considerable deference."          Franklin, 51 F.4th at 396.
    But here, there is a rub.              The record makes manifest
    that the district court did not explicitly undertake the balancing
    that Rule 32.1(b)(2)(C) contemplates with regard to the statements
    within Briody's affidavit.        Teixeira maintains that the court's
    failure explicitly to perform this balancing is reversible error
    in itself.     The government responds that the district court was
    not required to subject the text messages to balancing because
    - 17 -
    they are not hearsay and that the court's failure to undertake an
    explicit balancing with respect to K.M.'s statements was in any
    event harmless error.     We address these two types of evidence
    separately.
    1
    We first address the text messages between Teixeira and
    the alleged co-conspirator.    The government argues convincingly
    that these text messages fall within either or both of two hearsay
    exclusions:   statements of a party opponent and/or statements not
    offered for the truth of the matter asserted.     See Fed. R. Evid.
    801(d)(2)(A), (c)(2).
    This court has not yet determined whether a third-party
    statement that falls under a hearsay exclusion must be subjected
    to Rule 32.1 balancing.   But common sense instructs — and the few
    cases to have considered the issue confirm — that a practice
    crafted to evaluate the admissibility of hearsay evidence should
    not be applied to evidence that is not hearsay.   See, e.g., United
    States v. Falls, 
    960 F.3d 442
    , 445 (7th Cir. 2020); cf. United
    States v. Walter, 
    434 F.3d 30
    , 34 (1st Cir. 2006) (holding that
    Confrontation Clause is not implicated in circumstances involving
    non-hearsay evidence).     We therefore hold that a third-party
    statement that falls within a hearsay exclusion need not be
    - 18 -
    subjected to Rule 32.1 balancing prior to its admission in a
    revocation hearing.5
    In the case at hand, the text messages from Teixeira are
    not subject to balancing because they are statements of a party
    opponent.     See Fed. R. Evid. 801(d)(2)(A); see also Walter, 
    434 F.3d at 34
    .    The text messages of the alleged co-conspirator are
    also exempt from balancing under Rule 32.1:     those messages were
    not offered for their truth but, rather, to provide context for
    Teixeira's messages.    As such, they are not hearsay evidence.   See
    United States v. Pena, 
    24 F.4th 46
    , 61 (1st Cir. 2022); see also
    Fed. R. Evid. 801(c)(2).
    That ends this aspect of the matter.   We conclude that
    the district court did not abuse its discretion by failing to
    conduct an explicit Rule 32.1 balancing with respect to the text
    messages.
    5 We note that there is disagreement among the circuits as to
    whether a finding that a proffered statement falls within a hearsay
    exception — as opposed to an exclusion — renders Rule 32.1
    balancing unnecessary.    Compare Valdivia v. Schwarzenegger, 
    599 F.3d 984
    , 988-90 (9th Cir. 2010) (holding that Rule 32.1 balancing
    is required if statement falls within established hearsay
    exception), with United States v. Aspinall, 
    389 F.3d 332
    , 343-44
    (2d Cir. 2004) (holding that Rule 32.1 balancing is "inapplicable"
    if statement falls within established hearsay exception),
    abrogated on other grounds by United States v. Booker, 
    543 U.S. 220
     (2005). We have not yet spoken to the issue, and we have no
    occasion to do so today.
    - 19 -
    2
    We turn next to K.M.'s statements (included within the
    affidavit), which the parties seem to agree were subject to Rule
    32.1 balancing.      To begin, we hold that the district court's
    failure to make an explicit finding as to the balancing required
    by Rule 32.1 is not per se reversible error.   See United States v.
    Aspinall, 
    389 F.3d 332
    , 343 (2d Cir. 2004), abrogated on other
    grounds by United States v. Booker, 
    543 U.S. 220
     (2005); see also
    Franklin, 51 F.4th at 401.    When — as in this case — the district
    court fails to make an explicit finding with respect to Rule 32.1
    balancing and admits the third-party statements anyway, we first
    ask whether the record may fairly be read to show that the court
    implicitly performed such a balancing.    See Franklin, 51 F.4th at
    401.    If the answer to that first question is in the affirmative,
    we then review the decision to admit the statements under the
    customary abuse-of-discretion standard.     See Marino, 
    833 F.3d at 7
    .     But if the answer is in the negative, we must find error and
    proceed to conduct a harmless-error analysis.     See United States
    v. Cintrón-Ortiz, 
    34 F.4th 121
    , 125 (1st Cir. 2022).
    In this instance, it is not immediately apparent whether
    the court below undertook an implicit Rule 32.1 balancing with
    respect to K.M.'s statements.     Here, however, we can leave that
    question unresolved and assume, favorably to Teixeira, that the
    court did not implicitly perform such a balancing.     Even so — as
    - 20 -
    we shall explain — its error was harmless.       We thus turn directly
    to that inquiry — an inquiry that requires us to "weigh both the
    apparent reliability of the hearsay evidence and the government's
    proffered reason for not producing the declarant."       Rodriguez, 
    919 F.3d at 635
     (quoting Fontanez, 
    845 F.3d at 443
    ).
    To   start,    K.M.'s    statements   are   characterized   by
    compelling indicia of reliability.         Importantly, the statements
    were given in the context of an interview with a federal agent and
    implicated K.M. in illegal arms trafficking.          The fact that the
    statements were against K.M.'s interest is strongly suggestive of
    their reliability.    See United States v. Mosley, 
    759 F.3d 664
    , 668
    (7th Cir. 2014).     What is more, K.M.'s account is consistent with
    the text messages about plans for obtaining firearms in Ohio for
    resale in Massachusetts and the Cash App charges.        Consistency of
    the challenged statements with other evidence supports a finding
    of reliability.    See Fontanez, 
    845 F.3d at 443
    ; see also Rondeau,
    
    430 F.3d at 48-49
    .
    Teixeira struggles to throw shade on the reliability of
    K.M.'s statements. He claims, in a conclusory fashion, that search
    warrant affidavits are "prone to error" and, thus, inherently
    unreliable.    This generalization, though, is of dubious force.
    Shaming search warrant affidavits on a categorical basis is no
    more persuasive than arguing, say, that all police officers are
    liars or that all criminal defendants are inherently incredible
    - 21 -
    witnesses.    Each search warrant affidavit is distinctive and —
    like any other affidavit — must be judged on its own merits.
    Next, Teixeira points out that the Ohio investigation
    never resulted in charges against him.         We agree, generally, that
    reliance on allegations of uncharged conduct cannot take the
    government very far.     Here, however, the government did not rely
    on the mere fact of the investigation to imply that Teixeira was
    guilty of arms trafficking.        Rather, the government relied on the
    communications described in the affidavit to show that Teixeira
    was communicating with others about buying firearms, making it
    more likely that the items depicted in the videos and photographs
    were real guns.     Seen in this light, those communications were
    relevant, as circumstantial evidence, to the gravamen of the
    revocation   proceedings    even    though   the   investigation   did   not
    result in substantive-offense charges against Teixeira.            Whether
    or not Teixeira's activities were unlawful was beside the point.
    Of course, we also must examine the other component of
    the balancing test:     the government's reason or reasons for not
    producing the declarant. See Rodriguez, 
    919 F.3d at 635
    . Teixeira
    notes that the government never expressly articulated any reason
    for not producing K.M.      But this is thin gruel:       the reasons are
    apparent.
    First and foremost, the unchallenged evidence shows that
    K.M. resides in Ohio.      The logistical problems in hauling an Ohio
    - 22 -
    resident to Massachusetts for a revocation hearing require no
    elaboration.   As we have said, "'the difficulty and expense of
    procuring witnesses from perhaps thousands of miles away' is a
    paradigmatic example of the type of situation that might call for
    the admission of hearsay evidence at a revocation proceeding."
    Marino, 
    833 F.3d at 5
     (quoting Gagnon v. Scarpelli, 
    411 U.S. 778
    ,
    782 n.5 (1973)); see also Fontanez, 
    845 F.3d at 444
    .         Here,
    moreover, there is a second equally obvious reason: the government
    may well be reluctant to call as a witness in a revocation
    proceeding a gun dealer who has been cooperating with it in an
    arms-trafficking investigation.
    The bottom line is that the evidence in the affidavit
    was reliable and there were good reasons why the government did
    not call K.M. to testify in person.    Given these conclusions, we
    hold — with a high degree of confidence — that the failure
    explicitly to conduct the required Rule 32.1 balancing was, at
    worst, harmless error.   See United States v. Sasso, 
    698 F.3d 25
    ,
    29 (1st Cir. 2012) (explaining that — for trial errors that are
    not of constitutional magnitude — the harmless-error standard
    "allows a conviction to stand, error notwithstanding, as long as
    it can be said 'with fair assurance, after pondering all that
    happened without stripping the erroneous action from the whole,
    that the judgment was not substantially swayed by the error'"
    (quoting Kotteakos v. United States, 
    328 U.S. 750
    , 765 (1946))).
    - 23 -
    C
    We add a coda.      Although we have upheld the revocation
    order in this case despite the district court's failure to make
    the   explicit   balancing    determination    that    Rule   32.1(b)(2)(C)
    contemplates, we do not gainsay the importance of such explicit
    determinations.    We urge the district courts — when presiding over
    revocation proceedings — to take care to make explicit balancing
    determinations.
    V
    Teixeira's final claim proceeds along two strands:           that
    the district court's factual findings were clearly erroneous and
    that the government has not carried its burden of demonstrating
    the firearms violation by a preponderance of the evidence.             These
    strands are inextricably intertwined, and we treat them as a single
    claim of error.
    We    review   a   district     court's    decision   to   revoke
    supervised release for abuse of discretion and the "underlying
    finding of a violation of supervised release for clear error."
    United States v. Wright, 
    812 F.3d 27
    , 30 (1st Cir. 2016).                 A
    determination that a district court committed clear error requires
    that, "on the whole of the record, we form a strong, unyielding
    belief that a mistake has been made."          Franklin, 51 F.4th at 399
    (quoting United States v. Padilla-Galarza, 
    990 F.3d 60
    , 73 (1st
    Cir. 2021)).     In this review, we are constrained to interpret the
    - 24 -
    evidence in the light most hospitable to the disputed finding and
    to recognize that "credibility is largely a matter for the fact-
    finder."   United States v. Oquendo-Rivera, 
    586 F.3d 63
    , 67 (1st
    Cir. 2009).
    We discern no clear error in the district court's factual
    findings. The court made pellucid that it was "relying principally
    on the agent's opinion."   In that testimony, Briody affirmed that
    both weapons shown in the videos had characteristics that he
    recognized as consistent with those of real firearms.     Moreover,
    he furnished detailed descriptions comparing the depicted firearms
    with real firearms.   The decision to credit Briody's testimony was
    quintessentially a decision for the factfinder, see 
    id.,
     and the
    court did not clearly err in crediting Briody's testimony.
    Teixeira suggests that the district court "misstated"
    Briody's testimony with respect to whether the guns were real.
    But any equivocation on Briody's part was (as has been said of
    beauty) more in the eye of the beholder:   although Briody admitted
    that discerning whether a firearm is real or fake from a photograph
    or video is "difficult," he stated that he saw, in the music studio
    video, an item that had "the characteristics of what I recognize
    to be a firearm."   So, too, Briody vouchsafed that, in the vehicle
    video, "the item had characteristics consistent with what would be
    a firearm."
    - 25 -
    We add, moreover, that Briody's testimony included not
    just his assessment of the video evidence but also his description
    of his interviews with Martin and his attempts to obtain Martin's
    prop guns.    Briody testified that Martin was unable to produce any
    prop guns that resembled the guns featured in the videos. Briody's
    testimony in this regard was unequivocal:             none of the three prop
    guns that Martin provided — two examined on the spot by Briody and
    one depicted in a photograph introduced at the hearing — were the
    same as the guns shown in the videos.
    To conclude that a supervised release violation has
    occurred, "the district court need not point to direct evidence
    but, rather, may rely on reasonable inferences drawn from the
    evidence."     Rodriguez, 
    919 F.3d at 637
    .          "The inferences so drawn
    'need not be compelled but, rather, need only be plausible.'"              
    Id.
    (quoting United States v. Nuñez, 
    852 F.3d 141
    , 146 (1st Cir.
    2017)).      Nor   is   it   clear   error    to   discredit   an   alternative
    explanation which is lacking in evidentiary support or otherwise
    unpersuasive.      See United States v. Brewster, 
    1 F.3d 51
    , 55 (1st
    Cir. 1993).
    The upshot is that the government supplied evidence from
    which reasonable inferences could be drawn that one or more of the
    weapons depicted in the videos was real.              We cannot say that the
    court clearly erred          either in crediting       that evidence or in
    - 26 -
    crediting an expert who testified that he believed the firearms in
    the videos were real guns based on a detailed comparison.
    Teixeira resists this conclusion.          He argues that the
    court erred in "overlooking other factors reinforcing the lack of
    basis to determine whether the purported firearm was a real
    firearm."      Chief among these factors, Teixeira says, is               the
    government's failure to produce or inspect the firearms depicted
    in the videos.
    This argument will not wash.      The court did not clearly
    err in relying on video evidence and expert testimony to reach its
    conclusion despite the absence of the actual guns.           See Franklin,
    51 F.4th at 398 (holding that government's failure to introduce
    specific type of substantiating evidence "does not diminish the
    force of the corroboration that is present"); see also United
    States v. Viloria-Sepulveda, 
    921 F.3d 5
    , 9-10 (1st Cir. 2019)
    (finding no error in district court's reliance on photographs of
    firearms to support upwardly variant sentence).            And to cinch the
    matter, we have no reason to believe that the government's failure
    to   produce   the   particular   firearms   shown    in   the   videos   was
    overlooked by the district court.      The fact that the court did not
    address that factor specifically in its ruling does not mean that
    the court ignored it; it instead may mean that the court considered
    it and concluded that it was unpersuasive.           A district court need
    not articulate its conclusions as to every jot and tittle of
    - 27 -
    evidence in making a determination as to a supervised release
    violation, and the fact that the court did not do so here cannot
    compel a finding of clear error.
    VI
    We need go no further. For the reasons elucidated above,
    the judgment of the district court is
    Affirmed.
    - 28 -