Case: 22-1421 Document: 00117973863 Page: 1 Date Filed: 02/10/2023 Entry ID: 6548472 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT No. 22-1421 UNITED STATES OF AMERICA, Appellee ve RAFAEL PINA-NIEVES, Defendant-Appellant On Appeal from a Judgment of Conviction in the United States District Court for the District of Puerto Rico PETITION FOR REHEARING AND REHEARING EN BANC OF DEFENDANT-APPELLANT RAFAEL PINA-NIEVES Kimberly Homan Martin G. Weinberg 20 Park Plaza, Suite 1000 20 Park Plaza, Suite 1000 Boston, Massachusetts 02116 Boston, Massachusetts 02116 (617) 448-2812 (Telephone) (617) 227-3700 (Telephone) homanlaw@aol.com (617) 338-9538 (Fax) owlmgw@att.netCase: 22-1421 Document: 00117973863 Page: 2 Date Filed: 02/10/2023 TABLE OF CONTENTS RULE 35(B)(1) STATEMENT I. AND INTRODUCTION ........6 00sec seen serene ee « THE PANEL’S HARMLESS ERROR ANALYSIS ERRONEOUSLY FOCUSED ON THE EVIDENCE RELATING TO PINA’S ALLEGED POSSESSION OF THE WEAPONS AT ISSUE ON FEBRUARY 6, 2020 . TRADITIONAL HARMLESS ERROR ANALYSIS. DOES NOT SUFFICE WHERE THE ERRONEOUS ADMISSION OF EVIDENCE IMPLICATES A CRIMINAL DEFENDANT’S SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF CONFLICT-FREE COUNSEL . pated hea rae ba Snsines anh THE PANEL APPLIED THE WRONG STANDARD TO PINA’S SIXTH AMENDMENT CLAIMS £o0)\ (0) BLU S<) (0). Scr. CERTIFICATE OF COMPLIANCE ........-- 0022200 eeeeee eee CERTIFICATE OF SERVICE .......-.- 0-00 se essere eee te ee ee Entry ID: 6548472Case: 22-1421 Document: 00117973863 Page:3 Date Filed: 02/10/2023 Entry ID: 6548472 TABLE OF AUTHORITIES Cases Cuyler v. Sullivan, 446 U.S. 335 (1980) . . iMartinenyuRyanss60]0'SeN(2012) 08 eee eee 8 Mickens v. Taylor, 535 U.S. 162 (2002) ..0...02. 000 cceeceee eee ees 1.12 Strickland v. Washington, 466 U.S. 668 (1984) ........002.00ecvee eee 8 United States v, Angiulo, 897 F.2d 1169 (Ist Cir. 1990) ..........00005 4 United States v. Cardona-Vicenty, 842 F.3d. 766 (Ist Cir.2016)........ 12 United States v. Cronic, 466 U.S. 648 (1984) 2.0... c eee eceee eee ee 9 United States v. DeCologero, 530 F.3d 36 (Ist Cir. 2008) . 1 United States v, Diozzi, 807 F.2d 10 (Ist Cir. 1986)....... 000.2. 2eee 13 United States v, Ford, 872 F.2d 1231 (6th Cir. 1989) ..... 0... 0ee cee 7 United States v. Gonzalez-Lopez, 48 U.S. 140 (2006)...... ae United States v. Kliti, 156 F.3d 150 (2d Cir. 1998) ....... 0.02.0. ve 1S United States v, Nersesian, 824 F.2d 1294 (2d Cir. 1987)........000.5 7 United States v. Portela, 167 F.3d 687 (Ist Cir. 1999)....... 0.02... 7 United States v. Pizarro, 772 F.3d 284 (Ist Cir. 2014). . 12 United States v. Ponzo, 853 F.3d 558 (1st Cit. 2017)... 002.002 0ee eee 15 United States v. Santiago-Lugo, 167 F.3d 81 (Ist Cir. 1999) ........... 14 iiCase: 22-1421 Document: 00117973863 Page:4 Date Filed: 02/10/2023 Entry ID: 6548472 United States v. Sevilla-Oyola, 770 F.3d | (Ast Cir. 2014)......... 7 Constitutional Prov ns Sixth Amendment, United States Constitution ........... +6... e205 passim Statutes and Rules 18 U.S.C. §922(g).......0005 bebe bebe eee e tee eteeeneeeees 1 Fed. R. Evid. 404(b).............- eee secssereccenexsan 4 iiiCase: 22-1421 Document: 00117973863 Page:5 Date Filed: 02/10/2023 Entry ID: 6548472 RULE 35(B)(1) STATEMENT AND INTRODUCTION 1. This case presents a question of exceptional importance: Whether traditional harmless error analysis may properly be applied where the crroncous admission of evidence implicates a criminal defendant’s Sixth Amendment right to the effective assistance of conflict-free counsel? 2. The panel’s rejection of Pina’s claims relating to the denial of his Sixth Amendment right to the assistance of conflict-free counsel using the same harmless error analysis as it applied to evidentiary error conflicts with decisions of both the Supreme Court and this Court. See, e.g., Cuyler v. Sullivan, 446 U.S. 335, 348 (1980)(test is whether conflict adversely affected counsel’s performance); Mickens v. Taylor, 535 U.S. 162, 171-72 (2002)(same); United States v. DeCologero, 530 F.3d 36, 76 (Ist Cir. 2008)(same). En banc review is, therefore, necessary to maintain uniformity of this Court’s decisions. peered The panel, despite finding the erroneous admission of counsel’s statement to have been “plainly highly prejudicial with respect to any disputed clement” of the 18 U.S.C. §922(g) offense of which Pina was convicted, United States v. Pina-Nieves, Slip Op. at 29, nonetheless held that the error was harmless. Id. at 30-33. The government here made a calculated decision to introduce this evidence and to openCase: 22-1421 Document: 00117973863 Page:6 Date Filed: 02/10/2023 Entry ID: 6548472 its case with it, knowing that it would color the jury’s view throughout the trial of counsel and of his arguments regarding why there existed a reasonable doubt of Pina’s guilt. If the government’s case was as overwhelming as the panel concluded, why else would the government seek to introduce such evidence? After all, why should the jury credit counsel's arguments when it had already been told that counsel had already effectively conceded Pina’s guilt? The government then prominently featured the statement in its final argument, complete with a vivid multi-color PowerPoint presentation, arguing that the statement meant something that the panel conclusively found it did not, Slip Op. at 22-25, and then in its rebuttal argument, delivered immediately following counsel’s final argument, went so far as to dramatically thank counsel for providing it with such powerful evidence of Pina’s guilt. Where erroneously admitted evidence creates conflicts for counsel and impedes his very ability to provide his client with the effective assistance of counsel guaranteed by the Sixth Amendment, traditional harmless error analysis, such as that employed by the panel, cannot properly evaluate the prejudicial impact of the evidence. In the unusual circumstances of cases such as this, a different approach is required. See Section II, infra. Pina’s appeal raised serious and substantial issues regarding the deprivation of his Sixth Amendment right to the effective assistance of conflict-free counsel throughCase: 22-1421 Document: 00117973863 Page:7 Date Filed: 02/10/2023 _—_ Entry ID: 6548472 the admission of counsel's statement. The panel, however, declined to address those issues, instead relegating them to a passing reference in a footnote, stating that it was unnecessary to discuss those issues because those arguments “fail[ed] for the same reasons that we conclude[d] that the Rule 801... errorf] [was] harmless: evidence of guilt concerning the only disputed element of this conviction [was] overwhelming.” Slip Op. at 33 n.1. This conclusion is directly contrary to circuit precedent, which analyzes Sixth Amendment claims under a very different standard. Either the panel or the Court, sitting en banc, should correct the erroneous standard applied by the panel and address Pina’s claims under the proper Sixth Amendment analysis. See Section III, infra. Before turning to these issues, this petition requests panel reconsideration based on the erroneous focus of its harmless error analysis. It then addresses the issues on which en banc review is sought. L THE PANEL’S HARMLESS ERROR ANALYSIS ERRONEOUSLY FOCUSED ON THE EVIDENCE RELATING TO PINA’S ALLEGED POSSESSION OF THE WEAPONS AT ISSUE ON FEBRUARY 6, 2020. ‘The panel’s harmless error analysis rests on a legal conclusion that February 6 is “on or about” April 1. See Slip Op. at 30-33, Whatever the validity of such a conclusion in a different case raising different issues, this case was tried by both parties on the theory that the offense was committed on April /, not on some otherCase: 22-1421 Document: 00117973863 Page:8 Date Filed: 02/10/2023 Entry 1D: 6548472 date “on or about” April 1. From the outset of this case, the government’s theory focused on the April 1 date—the date of the search during which the weapons were found—and on the indicia of Pina’s constructive possession of the weapons at issue on that specific date, never once contending below that proof of constructive possession on February 6 would suffice. In focusing on the February 6 date, the panel found the error harmless as to an offense with which Pina was not charged and for which he was not convicted. The panel should, therefore, reconsider its conclusion that the introduction of counsel’s statement was harmless error and focus on the question that the jury was actually asked to decide: whether Pina constructively possessed the weapons at issue on April 1, 2020. Pina has already demonstrated why the error cannot be found harmless when so viewed. See Brief of Appellant at 29-37. Prior to trial, in response to Pina’s motion to exclude the February 6 conversation as other crimes evidence under Fed. R. Evid. 404(b), the government argued that the conversation was admissible as “part of the story of the crime committed by the defendant on April 1, 2020,” Doc. 238 at 6 (emphasis added), that the call was “direct evidence that the defendant was in possession of the firearms and ammunition seized at the Caguas Real A-62 house on April 1, 2020, id. at 7 (emphasis added), that the evidence was admissible even though “not part of the crime charged,” id. (emphasis added), that the call was “linked in time andCase: 22-1421 Document: 00117973863 Page:9 Date Filed: 02/10/2023 Entry ID: 6548472 circumstances with the charged crime,” id. (emphasis added), that the call was “direct evidence and inextricably intertwined to the charge/d] offense.” id. at 10 (emphasis added), and that “[a] coherent and comprehensible story of April 1, 2020, cannot be told without mentioning intercepted call 121.” Jd. (emphasis added). At no time did the government suggest that February 6 might actually be the crime charged. During its opening statement, the government focused precisely on the April 1, 2020, date, see App:106, 111 (telling jury that the evidence would show that Pina possessed the weapons on April 1, 2020); App:109-1 I (discussing calls made by Pina on April 1, 2020, as evidence of knowledge and possession on April 1), never suggesting that the jury could convict Pina if it found that he had possessed the firearms on February 6, The government’s closing argument likewise focused on the April 1 date as the offense charged. See App:992 (“Power, control, intention, that is what the defendant had on April Ist, 2020” (emphasis added); see also App:992-95 (government stresses all the things that were found during the April | search that tied Pina to the house on that date). Defense counsel opened his closing argument by focusing on April | as the date of the offense charged, framing the issue for the jury as whether Pina knowingly possessed the firearms on April 1, the date the government had chosen to charge and arguing that “reasonably near” could meanCase: 22-1421 Document: 00117973863 Page: 10 Date Filed: 02/10/2023 Entry ID: 6548472 “give or take a few days, but not weeks or months,” App:1013.! He then devoted a substantial portion of his argument to explaining why the February 6 conversation did not suffice to prove Pina’s constructive possession of the weapons on April 1, 2020, beyond a reasonable doubt. In its rebuttal argument, the government never suggested to the jury that it could base its conviction on Pina’s constructive possession of the weapons on February 6; instead, it set out to debunk the defense theory that the weapons seized on April | were not those to which Pina was referring in the February 6 conversation.’ Even on appeal, the government focused its harmless error argument on the April! date, pointing to the inculpatory impact of the February 6 conversation and arguing that “[t]here was no evidence that anything material changed between February 6 and April 1.” Brief of Appellee at 29-30. Only in a footnote did the government contend, in a single sentence, followed by two case citations, that proof of constructive possession on February 6 fell within ' The court had charged the jury prior to closing arguments that the government was required “to prove beyond a reasonable doubt that the offenses were committed ona date reasonably near the date alleged in the Indictment, it is not necessary for the government to prove that the offenses were committed precisely on the date charged.” ‘App:975 ? Appellant’s brief may have acknowledged, based on the language of the official translation of the conversation, that Pina referenced “my guns” and pistols during the February 6 conversation, Slip Op. at 31, but it in no sense conceded that the weapons seized on April 1 were the same as those mentioned during the earlier conversation. See Reply Brief of Appellant at 11 n.10. 6Case: 22-1421 Document: 00117973863 Page: 11 Date Filed: 02/10/2023 Entry 1D: 6548472 the ambit of “on or about” April 1. Brief of Appellee at 30 n.52 The issue here is not, however, whether Pina could have validly been convicted of possessing the weapons on February 6 when the indictment alleged that the crime was committed “on or about” April 1 (which he would have contested) or whether there was a fatal variance between the date of the offense charged and that actually proven. Instead, the issue is the proper focus of the harmless error analysis. Pina did not, as the panel indicated, argue that February 6 was not “on or about” April 1, Slip Op. at 33, for that very reason—that issue had no bearing on the question of harmless error. Harmless error analysis must necessarily focus on what the jury was asked to decide—here, whether * Normally, this Court does not consider such undeveloped arguments. See, e.g., United States v. Sevilla-Oyola, 770 F.3d 1, 13 (1st Cir. 2014)(“Arguments raised in only a perfunctory and undeveloped manner are deemed waived on appeal.”). In any event, the cases cited by the government did not support its position. In United States v. Portela, 167 F.3d 687, 698 (1st Cir. 1999), the Court found that proof of narcotics possession in early April was “on or about March,” the allegation in the indictment. That variance was a far cry from the almost two month differential here. In United States v. Nersesian, 824 F.2d 1294, 1323 (2d Cir. 1987), the issue was whether the evidence had created a fatal variance from the charge in the indictment. Importantly, “the ‘reasonably near’ rule approved by . . . Nersesian contemplates a single act the exact date of which is not precisely known by the grand jury.” United States v. Ford, 872 F.2d 1231, 1236 (6th Cir.1989). Here, the government knew precisely the dates at issue and chose to charge that the offense occurred on April 1, not February 6, and to argue to the jury Pina’s guilt of the offense charged on that specific date.Case: 22-1421 Document: 00117973863 Page: 12 Date Filed: 02/10/2023 Entry ID: 6548472 Pina had constructive possession of the weapons on April 1, 2020—and not based on a theory that theoretically might have been argued to it but was not. Only with the focus so directed can the court properly assess the prejudicial impact of the erroneously admitted evidence. I. TRADITIONAL HARMLESS ERROR ANALYSIS DOES NOT SUFFICE WHERE THE ERRONEOUS ADMISSION OF EVIDENCE IMPLICATES A CRIMINAL DEFENDANT’S SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF CONFLICT-FREE COUNSEL. There is an irreconcilable inconsistency in the panel’s analysis of the impact of the admission of Mr. Rebollo’s statement on the trial of this case: how can the admission of evidence be “plainly highly prejudicial,” Slip Op. at 29, and, at the same time, harmless error? The issue here lies at the intersection of two fundamental constitutional rights: the right not to be convicted of a crime except upon proof beyond a reasonable doubt and the right to the effective assistance of counsel. The right to the effective assistance of counsel at trial is a bedrock principle in our justice system. .. . Indeed, the right to counsel is the foundation for our adversary system. Defense counsel tests the prosecution’s case to ensure that the proceedings serve the function of adjudicating guilt or innocence, while protecting the rights of the person charged. Martinez v. Ryan, 566 U.S. 1, 12 (2012). See Strickland v, Washington, 466 U.S. 668, 689 (1984)(purpose of the effective assistance guarantee “is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of theCase: 22-1421 Document: 00117973863 Page: 13 Date Filed: 02/10/2023 Entry ID: 6548472 proceeding”); United States v. Cronic, 466 U.S. 648, 658 (1984)(“The right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial.”). Where, as here, the admission of evidence impedes counsel’s very ability “to require the prosecution's case to survive the crucible of meaningful adversarial testing,” id. at 656-57, standard harmless error analysis, which looks only to the strength of the government’s case and the likely impact of the erroneously admitted evidence on the jury’s decisionmaking, does not suffice, as it does not factor in the impact of the evidence on counsel’s very ability to provide his client with the effective assistance of counsel to which he is constitutionally entitled. Here, the admission of counsel’s statement created actual conflicts for counsel and robbed him of the ability to effectively argue reasonable doubt to the jury, and the “plainly highly prejudicial” effect of that statement pervaded the entire trial. See United States v. Gonzalez-Lopez, 548 U.S. 140, 150-51 (2006). Why else did the government offer the evidence of counsel’s statement, and open its case with it, other than to ensure that the jury’s view of the remainder of the trial would be colored by counsel’s purported confirmation of his client's guilt? How could a criminal defendant possibly obtain a fair trial when the jury was primed from the get-go by the statement of his own counsel, offered via judicial notice, at the very beginning of theCase: 22-1421 Document: 00117973863 Page: 14 Date Filed: 02/10/2023 __ Entry 1D: 6548472 government’s case, to devalue both his defense and his trial counsel? With the admission of his statement, Mr. Rebollo could not be a fully effective advocate for Pina, as the statement regarding Pina’s resignation to going to jail and desire to be able to engage in plea negotiations would have had the jury viewing the defense efforts, and especially those of Mr. Rebollo, with a jaundiced eye from the outset. ‘And nowhere was this prejudice more pronounced than the impact of the statement on counsel's ability to argue reasonable doubt to the jury and on the jury’s ability to fairly consider those arguments. The government’s use of the statement during its rebuttal argument to theatrically mock Mr. Rebollo, literally thanking him for providing it with such powerful inculpatory evidence and contending that his statement itself provided a valid basis for rejecting the defense theory of reasonable doubt effectively nullified Mr. Rebollo’s entire reasonable doubt argument. And if further evidence of prejudice were required, one need only look to the fact that, with counsel’s ability to argue reasonable doubt fatally compromised, the government was able to convince the jury to return a verdict on the machine gun count that the panel concluded no rational jury could have done. Slip. Op. at 7-17. Under circumstances such as these, traditional harmless error cannot suffice to measure the prejudice suffered by the defendant from the erroneous admission of evidence. Instead, that analysis must be expanded to encompass the impact of the 10Case: 22-1421 Document: 00117973863 Page: 15 Date Filed: 02/10/2023. Entry ID: 6548472 erroncously admitted evidence on the defendant’s Sixth Amendment right to the effective assistance of conflict-free counsel. When viewed through this expanded lens, as addressed in the following section, the error here cannot be held harmless. Tl. THE PANEL APPLIED THE WRONG STANDARD TO PINA’S SIXTH AMENDMENT CLAIMS. In his appeal, Pina raised two serious and substantial Sixth Amendment issues: (1) that the district court failed in its duty of inquiry after both the government and defense counsel alerted the court to the potential conflict/ineffective assistance issues that would arise from the admission of counsel's statement, Brief of Appellant at 40- 43; and (2) that the district court’s ruling that the statement was admissible created an actual conflict for Mr. Rebollo in two well-recognized respects: (a) admission of the statement turned Mr. Rebollo into an unsworn witness against Pina, and (b) because Mr. Rebollo acted as trial counsel, Pina was deprived of the ability to call him as a witness to explain the context and meaning of the statement. Brief of Appellant at 43-50. Neither of these issues is properly assessed under the same harmless error analysis that the panel employed in finding the Rule 801 error harmless (which was itself inadequate to assess the prejudicial impact of the admission of counsel’s statement for the reasons already discussed).* When analyzed “Neither of the cases cited by the panel support its summary rejection of Pina’s Sixth Amendment claims based on its conclusion that the government's evidence was 11Case: 22-1421 Document: 00117973863 Page: 16 Date Filed: 02/10/2023 Entry ID: 6548472 under the properly applicable standards, the merits of Pina’s Sixth Amendment claims require that his remaining conviction be vacated and the matter remanded for a new trial. Once the district court decided that counsel's statement was admissible, the likelihood of actual conflict was obvious. Indeed, the district court acknowledged the issue before trial in response to Mr. Rebollo’s protestation that, if his statement were admitted, he would be unable to provide Pina with the effective assistance of counsel to which he was constitutionally entitled, see Mickens v. Taylor, 535 U.S. 162, 167 (2002)(“[A] defense attorney is in the best position to determine when a conflict exists.”), and also noted the pleading in which the government had flagged the potential issue. The court, however, made no inquiry of Pina regarding whether he understood the implications of the admission of his trial counsel’s statement and knowingly consented to Mr. Rebollo’s continuing as trial counsel even though he would, as the result of the court’s ruling, be an unsworn (and powerful) witness for the prosecution and even though his continuance as trial counsel would preclude his “overwhelming.” Slip Op. at 33 n.1. In United States v. Cardona-Vicenty, 842 F.3d 766 (1st Cir. 2016), the Court held that no actual conflict existed, so it had no occasion to pass on the question of whether the existence of a conflict required that the defendant's conviction be vacated. The same cannot be said here. United States v. Pizarro, 772 F.3d 284 (1st Cir. 2014), concerned the harmlessness of instructional error, something not at issue here. 12Case: 22-1421 Document: 00117973863 Page: 17 Date Filed: 02/10/2023 Entry ID: 6548472 appearing as a defense witness to explain the statement. Nor did it question whether Mr. Rebollo could continue as trial counsel if his statement were to be admitted. Under these circumstances, the district court had a clear duty of inquiry. That duty exists when “the trial court knows or reasonably should know that a particular conflict exists.” Cuyler v. Sullivan, 446 U.S. 335, 347 (1980). See Brief of Appellant at 40-43, Had the court made the requisite inquiry. the existence of actual conflicts would have been clear. Those conflicts were two-fold. First, the admission of his statement placed Mr. Rebollo squarely in the position of being an unsworn witness against his own client. Indeed, the government’s rebuttal argument explicitly recognized this in arguing that defense counsel himself had provided the government with powerful inculpatory evidence against his own client. See United States v. Diozzi, 807 F.2d 10, 15 n.10 (1st Cir. 1986)(referencing “the Second Circuit rule that defense counsel who implicitly interprets his own pretrial statements or conversations becomes an unsworn witness whose credibility is at issue”). Such was precisely the case here—with the admission of the statement, Mr. Rebollo’s credibility was on the line throughout the case, and never more so than during his closing argument. See Brief of Appellant at 43-47. Second, Mr, Rebollo’s role as defense counsel deprived Pina of exculpatory 13Case: 22-1421 Document: 00117973863 Page: 18 Date Filed: 02/10/2023 Entry ID: 6548472 evidence in the form of an explanation of what the statement actually meant, as Mr. Rebollo could not appear both as defense counsel and as a witness to testify that the statement in the motion was not, in fact, an admission by Pina. The advocate-witness rule “bars an attorney from appearing as both an advocate and a witness in the same litigation.” United States v. Angiulo, 897 F.2d 1169, 1194 (1st Cir. 1990). See, e.g., United States v. Santiago-Lugo, 167 F.3d 81, 84 (1st Cir. 1999)(“[A]n actual conflict exists where counsel’s representation of a defendant precludes the admission of favorable or exculpatory evidence.”). Had Mr. Rebollo not been trial counsel, Pina, represented by different counsel, would have been able to call Mr. Rebollo as a defense witness to explain that this was his statement, made in a pretrial motion, that these were his words and not Pina’s, and that it was his statement, not Pina’s. Other counsel could then, in closing argument, have effectively rebutted the government’s construction of the statement by explaining the actual context and meaning of the statement and pointing out to the jury that the government was relying instead on a tortured and wholly inaccurate interpretation of the statement (as the panel concluded it was, see Slip Op. at 22-25). As trial counsel, Mr. Rebollo could do none of this. See Brief of Appellant at 47-50. Under the proper standard, the panel could not determine whether Pina’s remaining conviction should be vacated without first examining whether the 14Case: 22-1421 Document: 00117973863 Page: 19 Date Filed: 02/10/2023 Entry ID: 6548472 admission of the statement created actual conflicts for counsel and, if so, whether those conflicts adversely affected counsel’s performance, see page 1, supra. If the answers to these questions are yes, as Pina has demonstrated they should be, then prejudice is presumed, United States v. Ponzo, 853 F.3d 558, 575 (Ist Cir. 2017), and not measured against the strength of the government's case. See, e.g., United States v. Kliti, 156 F.3d 150, 155 (2d Cir. 1998)(vacating conviction and ordering a new trial where district court failed to make any inquiry despite counsel’s position as unsworn witness and the need for counsel’s exculpatory testimony). CONCLUSION For all the foregoing reasons, the panel should reconsider its harmless error analysis and, having done so, vacate Pina’s remaining conviction. The en banc Court should consider the important issues of whether, under the unusual circumstances of this case, traditional harmless error analysis is capable of capturing the prejudice to the defendant’s Sixth Amendment right to the effective assistance of counsel created by the introduction of counsel’s statement and whether the panel's treatment of the serious Sixth Amendment issues raised in this case conflicts with Supreme Court and this Court's precedent.Case: 22-1421 Document: 00117973863 /s/ Kimberly Homan Kimberly Homan 20 Park Plaza, Suite 1000 Boston, Massachusetts 02116 (617) 448-2812 (Telephone) homanlaw@aol.com Page: 20 Date Filed: 02/10/2023 Entry ID: 6548472 Respectfully submitted, By his attorneys, /s/ Martin G. Weinberg Martin G. Weinberg 20 Park Plaza, Suite 1000 Boston, Massachusetts 02116 (617) 227-3700 (Telephone) (617) 338-9538 (Fax) owlmgw@att.netCase: 22-1421 Document: 00117973863 Page: 21 Date Filed: 02/10/2023 Entry ID: 6548472 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT No. 22-1421 UNITED STATES OF AMERICA v. RAFAEL PINA-NIEVES, Defendant-Appellant CERTIFICATE OF COMPLIANCE WITH TYPEFACE AND LENGTH LIMITATIONS This Petition for Rehearing and Rehearing En Banc has been prepared using: 14 point, proportionally spaced, serif typeface (such as CG Times or Times New Roman). Specify software name and version, typeface name, and point size below: WordPerfect Office 2021. 14-point Times New Roman EXCLUSIVE of the corporate disclosure statement; table of contents; table of citations; addendum; and the certificate of service, appellant's Petition for Rehearing and Rehearing En Banc contains, in total: 3,766 words. Tunderstand that a material misrepresentation can result in the Court striking the brief or imposing sanctions. If the Court so directs, I will provide a copy of the word or line printout. Js/ Kimberly Homan Kimberly HomanCase: 22-1421 Document: 00117973863 Page: 22 Date Filed: 02/10/2023 Entry ID: 6548472 CERTIFICATE OF SERVICE I, Kimberly Homan, hereby certify that on this 10th day of February, 2023, the Petition for Rehearing and Rehearing En Banc of Appellant Rafael Pina-Nieves was filed with the Court through its CM/ECF system, thus effectuating service on all parties to this appeal. /s/ Kimberly Homan Kimberly Homan