author: LIPEZ, Circuit Judge.

text:
    AES PUERTO RICO, L.P., Plaintiff, Appellant, v. Marcelo TRUJILLO-PANISSE, in his Official Capacity as Mayor of the Municipality of Humacao; Municipality of Humacao; Walter Torres-Maldonado, in his Official Capacity as Mayor of the Municipality of Peñuelas; Municipality of Peñuelas, Defendants, Appellees.
    No. 16-2052
    United States Court of Appeals, First Circuit.
    May 16, 2017

      Peter D. Keisler, Washington, DC, with whom Ricardo L. Ortiz-Colón, Fiddler González & Rodríguez, P.S.C., San Juan, PR, David T. Buente, Samuel B. Boxer-man, Paul J. Zidlicky, Christopher A. Eis-werth, and Sidley Austin LLP, Washington, DC, were on brief, for appellant.
    Francisco José Medina-Medina, with whom Pedro E. Ortiz-Álvarez, LLC, Ponce, PR, was on brief, for appellees.
    John F. Cooney, Douglas H. Green, Margaret K. Fawal, and Venable LLP, Washington, DC, on brief for amici curiae the Utility Solid Waste Activities Group and the American Coal Ash Association.
    Before TORRUELLA, LIPEZ, and BARRON, Circuit Judges.
   LIPEZ, Circuit Judge.

This case requires us to decide whether two Puerto Rico municipalities may prohibit the beneficial use and disposal of coal ash at landfills within their borders even though a state agency has authorized such activities at those particular landfills. Appellant AES Puerto Rico, L.P. (“AES-PR”), a coal-fired power plant owner, claims that the two municipal ordinances banning the approved handling of “coal combustion residuals” (“CCRs”) are preempted by federal and Commonwealth law and also violate various provisions of the United States and Puerto Rico constitutions. The district court granted summary judgment for the municipalities on AES’s federal claims and declined to exercise jurisdiction over the Commonwealth claims.

After careful review, we conclude that the local ordinances may not be enforced to the extent they directly conflict with Commonwealth law as promulgated by the Puerto Rico Environmental Quality Board (“EQB”). Hence, we reverse the summary judgment in favor of the municipalities and remand with directions to the district court to enter judgment for AES-PR based on its claim of Commonwealth law preemption.

I.

We begin by examining the legal framework that governs the disposal of CCRs in Puerto Rico. That multi-tiered scheme consists of (1) federal law, specifically, the Resource Conservation and Recovery Act of 1976 (“RCRA”), 42 U.S.C. §§ 6901-6992k; (2) the Commonwealth’s Environmental Public Policy Act, P.R. Laws Ann. tit. 12, §§ 8001-8007Í, the source of the EQB’s authority; and (3) the Autonomous Municipalities Act, P.R. Laws Ann. tit. 21, §§ 4001-4008, 4051-4058, the source of the municipalities’ authority. We briefly describe each in turn, as pertinent to our analysis.

A. Federal Law: RCRA

Congress enacted RCRA, “a comprehensive environmental statute that governs the treatment, storage, and disposal of solid and hazardous waste,” based, inter alia, on its finding that waste disposal had become a national problem requiring federal involvement. Meghrig v. KFC W., Inc., 516 U.S. 479, 483, 116 S.Ct. 1251, 134 L.Ed.2d 121 (1996); see 42 U.S.C. § 6901(a)(4); 42 U.S.C. § 6901(a)(2) (noting the “rising tide of scrap, discarded, and waste materials”). Despite the perceived need for federal action, however, Congress affirmed in RCRA that “the collection and disposal of solid wastes should continue to be primarily the function of State, regional, and local agencies.” Id. § 6901(a)(4). Hence, RCRA anticipates that federal, state, and local governments will work cooperatively to ensure the safe and environmentally appropriate management of solid waste, and the statute’s objectives expressly include establishment of “a viable Federal-State partnership” to “promote the protection of health and the environment and to conserve valuable material and energy resources.” Id. § 6902(a)(7), (a).

This cooperative approach applies both to “hazardous wastes” under RCRA subtitle C, id. §§ 6921-6939g, and to nonhazardous solid waste under RCRA subtitle D, id. §§ 6941-6949a. See City of Chicago v. Envtl. Def. Fund, 511 U.S. 328, 331, 114 S.Ct. 1588, 128 L.Ed.2d 302 (1994). The federal Environmental Protection Agency (“EPA”) has classified CCRs as nonhazardous waste, see 40 C.F.R. § 261.4(b)(4)(i), and, accordingly, they are regulated under subtitle D. With respect to such materials, Congress sought to promote methods of disposal that are “environmentally sound” and maximize the reuse of recoverable resources. 42 U.S.C. § 6941. To advance those objectives, states and regional authorities are provided technical and financial assistance to develop and implement solid waste disposal plans, consistent with federal guidelines, to be submitted for EPA approval. Id. §§ 6941, 6943, 6946-47. Among other requirements, the state plans must “prohibit the establishment of new open dumps within the State,” and require that solid waste either be used for resource recovery, disposed of in sanitary landfills, “or otherwise disposed of in an environmentally sound manner.” Id. § 6943(a)(2). Congress directed the EPA to adopt “regulations containing criteria for determining which facilities shall be classified as sanitary landfills,” and, under those criteria, “a facility may be classified as a sanitary landfill ... only if there is no reasonable probability of adverse effects on health or the environment from disposal of solid waste at such facility.” Id. § 6944(a).

The Commonwealth’s plan to regulate the disposal of nonhazardous solid waste at landfills, approved by the EPA in 1994, gives the EQB “authority and responsibility for implementing and enforcing solid waste management regulations, including a permit program, inspection authority and enforcement activities.” 59 Fed. Reg. 44,-144, 44,145-46 (Aug. 26, 1994), 1994 WL 460341. The EPA notice approving Puerto Rico’s program stated that the EQB had adopted comprehensive regulations governing waste disposal “intended to bring Puerto Rico into full conformity” with federal specifications, id. at 44,145, and that Puerto Rico’s application showed compliance with “all of the statutory and regulatory requirements established by RCRA,” id. at 44,146. The Commonwealth was thus “granted a determination of adequacy for all portions of its municipal solid waste permit program.” Id.

B. Commonwealth Law: Environmental Public Policy Act

The Environmental Public Policy Act of 2004 designates the EQB as the agency charged with managing Puerto Rico’s response to federal laws pertaining to “environmental conservation, natural resources, solid waste, and other matters” related to environmental quality. P.R. Laws Ann. tit. 12, § 8002g. Among other functions, the statute authorizes the EQB to (1) “adopt, promulgate, amend and repeal rules and regulations for solid waste disposal and establish the sites and methods to dispose of such solid waste,” id. § 8002c(b)(4)(A); (2) “adopt rules and regulations to establish a permit-awarding and licensing mechanism that regulates the control of the pollution in the air and water and by solid waste and noise,” id. § 8002e(b)(3)(E); and (8) issue orders “that, in its judgment, are necessary to achieve the purposes of [the Act] and the regulations promulgated thereunder,” id § 8002c(a)(8).

Under its statutory authority, the EQB adopted State Regulation No. 5717, which consists of a series of rules governing the management of non-hazardous solid waste. See P.R. Envtl. Laws & Regs. No. 5717 (“the 1997 Regulation”). The 1997 Regulation’s purposes include “[t]o establish a program for the design, construction, operation, closure and post-closure maintenance of [sanitary landfills] for non-hazardous solid waste.” The Rules specify, for example, where such facilities may be located (Rule 540), design criteria (Rule 541), the minimum personnel and their training (Rules 543, 544), and the need for a system of ground water protection and monitoring (Rules 551-558).

A “final resolution or decision” of the EQB is reviewable “in the manner provided for in the Puerto Rico Uniform Administrative Procedures Act,” and EQB decisions may not be “stayed, unless so ordered by the Circuit Court of Appeals of Puerto Rico or by the Governing Board [of the EQB] itself.” P.R. Laws Ann. tit. 12, § 8002e(a)(8); see also id. § 8002f(a)(4) (providing that “[a]ny person adversely affected by a resolution, order or decision of the Governing Board [of the EQB] may request the latter to reconsider its determination or request a review by the Court of Appeals of Puerto Rico”). Individuals who fail to comply with EQB resolutions or orders “shall be guilty of a misdemeanor,” id. § 8002j(a), and may be subject to criminal or administrative fines, damages, and sanctions, id. §§ 8002j(a)-(c).

C. Local Authority: Autonomous Municipalities Act

Puerto Rico’s Autonomous Municipalities Act gives local governments authority to exercise their “legislative and executive powers in any matter of a municipal nature” to promote “the welfare of the community and its economic, social and cultural development” and to protect “the health and safety of the people.” P.R. Laws Ami. tit. 21, § 4051(o). A separate provision vests municipalities with “the powers that are necessary and convenient to carry out” some twenty-odd functions, id. § 4054, including to “[establish solid waste collection services and programs and public sanitation programs in general, and adopt the standards and measures that are necessary for the improvement and adequate control and disposal of waste,” id. § 4054(a). This municipal authority is “subject to applicable legislation,” id. § 4051(o), and “subordinate!] to the Constitution of the Commonwealth of Puerto Rico and to its laws,” id. § 4003. The required compatibility of local and commonwealth law also is recognized in a provision that authorizes municipalities to adopt ordinances regulating “solid waste collection management,” stating that such measures must be “in harmony with the environmental public policy of the Commonwealth of Puerto Rico.” Id. § 4055.

II.

We now sketch the background of the dispute before us, drawing liberally from the district court’s well-crafted summary. The facts set forth here are undisputed.

A. Factual Background

1. AES-PR and the Placement of CCRs

AES-PR’s coal-fired power plant, located in Guayama, produces approximately fifteen percent of the electricity used in Puerto Rico. The Guayama facility imports the coal from Colombia and, pursuant to a long-term contract, AES-PR sells the electricity generated at the plant to the Puerto Rico Electric Power Authority (“PREPA”).

The combustion of coal produces two types of ash: bottom ash and fly ash, which are collectively labeled coal combustion residuals, and referred to as CCRs. AES-PR produces approximately 200,000 to 250,000 tons of CCRs each year, some of which it uses in a manufactured aggregate product marketed in Puerto Rico under the trade name AGREMAX (“Agremax”). According to AES-PR, Agremax has various beneficial uses, including as “structural fill” for building construction and as “subbase material in road construction.” Agremax also has waste treatment applications; it can be used to solidify liquid waste, or be placed each day on top of solid waste in a landfill—a use known as “daily cover”—to prevent the waste materials from spreading. In the latter role, Agremax substitutes for soil and other natural materials. See 40 C.F.R. § 258.21(a) (stating that sanitary landfills “must cover disposed solid waste with six inches of earthen material at the end of each operating day, or at more frequent intervals if necessary, to control disease vectors, fires, odors, blowing litter, and scavenging”); M. § 258.21(b) (allowing the “Director of an approved State” to approve “[alternative materials” for daily cover).

In September 2014, the EQB Board of Governors issued Resolution No. 14-27-20 (“the 2014 Resolution”) authorizing disposal of CCRs generated by AES-PR’s coal plant at sanitary landfills approved by the EQB that meet the design and operation requirements of RCRA’s subtitle D and the Commonwealth’s 1997 Regulation. Before a sanitary landfill may begin receiving CCRs for disposal, however, it must file an application to modify its operation permit and submit a plan that, at a minimum, includes “adequate methods to control the material particles and compact the waste; a description of the safety and protection equipment of the operators and employees of the facility; a detailed description of the runoff control system; and a description of the groundwater monitoring plan.” The 2014 Resolution similarly limits the use of CCRs as daily cover to approved sanitary landfills that meet the specified requirements, and it likewise requires submission of an application with an amended operation and emergency plan as a prerequisite for such use.

AES-PR has contracts with the operators of three landfills in Puerto Rico— Peñuelas Valley Landfill and Ecosystems Peñuelas Landfill in Peñuelas, and El Co-qui Landfill in Humacao—to provide CCRs, including Agremax, for use as daily cover, or to solidify non-hazardous liquid waste, or for disposal. All three landfills are lined, sanitary landfill systems designed to meet RCRA and EQB specifications. They were issued permits by the EQB to operate as facilities for the final disposal of nonhazardous solid waste.

In October 2015, the EQB Board issued Resolution No. 15-23-1 (“the 2015 Resolution”) approving requests by the El Coqui and Pefiuelas Valley landfills to receive CCRs generated by AES-PR. Specifically, the EQB approved the use of Agremax to solidify liquid waste in the Pefiuelas Valley Landfill and reaffirmed its prior authorization for the use of other CCRs at that landfill for the same purpose. The EQB also approved disposal of CCRs, including Agremax, in both landfills. The 2015 Resolution further advised the landfills that, if they wished to use Agremax for daily cover, they needed to apply for a waiver from the EQB by following the procedures specified in the 1997 Regulation. Several months later, in January 2016, the EQB also authorized disposal of CCRs, including Agremax, in the Ecosystems Pefiuelas Landfill, and it similarly directed Ecosys-terns to follow the procedures specified by Puerto Rico law if it sought approval for using CCRs for daily cover. Ecosystems’ permit did not authorize liquid waste solidification with CCRs “because the necessary facilities for these purposes have not been built.”

2. The Humacao and Pefiuelas Ordinances

More than two years before the EQB issued its 2015 Resolution, the Municipality of Pefiuelas adopted Ordinance Number 13 (the “Pefiuelas Ordinance”), and several months later, the Municipality of Humacao adopted Ordinance Number 21 (the “Hu-macao Ordinance”), both of which prohibit the placement of CCRs on the ground within the boundaries of their municipalities, including in sanitary landfills. Although the ordinances do not prohibit all uses of CCRs, they bar the disposal and uses that the EQB has authorized for the El Coqui, Pefiuelas, and Ecosystems landfills because those activities involve depositing CCRs on the ground.

Both ordinances reflect particular concern about the activities of AES-PR and its disposal of the coal ash produced by its coal-fired power plant. In background explanatory clauses, the ordinances discuss AES-PR’s extensive use of coal ash in Puerto Rico, making explicit reference to Agremax. Both ordinances cite studies revealing unsafe levels of toxic substances associated with coal ash deposits and conclude that such deposits present a threat to the environment and human health.

In accordance with the EQB Resolution, AES-PR delivered Agremax and CCRs in other forms to the landfills. In April 2016, the Municipality of Humacao responded by fining El Coqui Landfill for the “[u]se of ash from burning coal.” On the same day, Humacao’s mayor sent the landfill a letter asking it to “refrain from receiving coal combustion products or ash ... regardless of how such products are being used or under what name you are receiving it,” and stating that the municipality would be “forced to reconsider” its contractual relationship with the facility if the practice did not stop. The maintenance manager of the .AES-PR plant reported in an affidavit that, also in April 2016, the Municipality of Peñuelas “used municipal trucks and other municipal equipment to physically block the entrance to the Peñuelas Valley Landfill to prevent the tanker trucks from delivering AES-PR’s CCRs to the Landfill for use to solidify liquid wastes.”

B. Procedural Background

In its complaint against the municipalities of Peñuelas and Humacao and their mayors, AES-PR asserted that the ordinances restricting the placement of CCRs violate both federal and Commonwealth law. Among other contentions, AES-PR argued that the local laws are preempted by both federal and Commonwealth law because they prohibit activities involving CCRs that are permitted by RCRA and explicitly authorized by the EQB. The company alleged that its “coal combustion products have repeatedly been tested and found safe for many applications, including as daily cover for solid waste landfills, in construction as structural fill, and as sub-base material in road construction.” AES-PR’s complaint sought declaratory and in-junctive relief, as well as damages.

In May 2015, AES-PR moved for partial summary judgment on its federal and state preemption claims. The district court denied the motion, rejecting both preemption theories. The court held that RCRA does not preempt the ordinances because the federal law does not indicate a preference for “one type of beneficial use (such as daily cover) over any other,” and the defendants “have not completely banned CCRs within their boundaries; they simply have banned one of several possible methods of use or disposal.” AES Puerto Rico, L.P. v. Trujillo-Panisse, 133 F.Supp.3d 409, 426 (D.P.R. 2015) (“AES-PR I”). With respect to Commonwealth law, the court “decline[d] to strike down the Ordinances as out of ‘harmony’ with Commonwealth law, particularly because Commonwealth law permits both the EQB and municipalities to regulate in this arena.” Id. at 429.

In March 2016, after the close of discovery, AES-PR again moved for partial summary judgment. The company renewed its argument that the municipal ordinances were preempted by Commonwealth law, relying in part on the EQB’s 2015 Resolution authorizing the use and disposal of CCRs at the El Coquí and Peñuelas Valley landfills—which the EQB had issued shortly after the district court’s prior ruling. AES-PR also sought summary judgment under the federal Commerce Clause because the ordinances “discriminate against products—CCRs, including Agremax—de-rived from imported coal” and improperly burden interstate and foreign commerce in excess of “any putative local benefits.” In a cross-motion, the defendants sought summary judgment on AES-PR’s federal claims and dismissal of any remaining Commonwealth law claims.

In its second Opinion and Order, the district court reaffirmed its previous denial of summary judgment for AES-PR on the federal preemption claim and granted summary judgment for defendants on that claim, noting that AES-PR had not alleged any changes in federal law that would affect the court’s analysis. AES Puerto Rico, L.P. v. Trujillo-Panisse, 199 F.Supp.3d 492, 506, 519 (D.P.R. 2016) (“AES-PR II”). On the Commonwealth preemption claim, the court reviewed the provisions of the Autonomous Municipalities Act giving municipalities the general authority to take actions to protect “the health and safety of the people,” P.R. Laws Ann. tit. 21, § 4051(o), as well as those specifically authorizing municipalities to adopt “measures that are necessary for [the improvement] and adequate control and disposal of waste,” id. § 4054(a) (alteration in original). See AES-PR II, 199 F.Supp.3d at 506. The court recognized that municipal ordinances must give way to Commonwealth law when there is a conflict, but observed that “[a] municipal ordinance that regulates in the same area as a Commonwealth law ... will not be preempted ‘unless it is impossible to harmonize it with the [Commonwealth] law.’ ” Id. at 506-07 (second alteration in original) (quoting Lopez v. Mun. de San Juan, 21 P.R. Offic. Trans. 71, 84, 121 D.P.R. 75 (1988)).

The court, however, declined to make the conflict assessment concerning the Hu-maeao and Peñuelas ordinances. It noted that “[t]he Puerto Rico Supreme Court has not ... resolved whether resolutions of executive agencies carry the same power to preempt as laws passed by the Puerto Rico Legislative Assembly,” id. at 508, and it viewed that question under the Supremacy Clause of the Commonwealth constitution as “a novel and complex issue of state law,” id. at 509. Comparing the issue to federal preemption, the court observed that “the preemptive power” of federal agency actions “depends on a myriad of factors and is a developing area of jurisprudence.” Id at 508 & n.14 (citing cases). Describing the Puerto Rico Uniform Administrative Procedures Act as similar to the federal Administrative Procedures Act, the court concluded that the preemptive force of the EQB actions at issue in this case is thus a question of Puerto Rico constitutional law “best resolved by the Puerto Rico Supreme Court.” Id. at 508-09. Accordingly, the court declined to exercise jurisdiction over the Commonwealth preemption claim.

The court also rejected AES-PR’s claim under the Commerce Clause, concluding that the ordinances do not discriminate facially or in effect against out-of-state products. Id. at 512. Although recognizing that the CCRS are derived from imported coal, the court noted that “the Ordinances focus on CCRs, which are produced domestically at the Guayama plant, not on the imported coal used to create CCRs.” Id. In any event, the court observed, “[w]hether focusing on coal or CCRs, the burden of the Humacao and Peñuelas Ordinances on interstate commerce is either nonexistent or slight.” Id. at 514.

On appeal, AES-PR challenges the district court’s rulings on both the federal and Puerto Rico preemption claims, as well as on the federal Commerce Clause claim. The company asserts that the ordinances “conflict with and frustrate the full implementation of Congress’s goals” in RCRA and likewise conflict with the Commonwealth’s environmental public policy as enacted through EQB resolutions. The company further argues that, even if the Commonwealth preemption claim raises a novel or complex issue of Puerto Rico law, the court should have certified the question to the Puerto Rico Supreme Court rather than dismissing the claim. AES-PR also seeks reversal of the district court’s Commerce Clause ruling.

III.

We review de novo the district court’s resolution of the parties’ cross-motions for summary judgment, Troiano v. Aetna Life Ins. Co., 844 F.3d 35, 41-42 (1st Cir. 2016), and we may affirm based on any ground supported by the record, id at 42. In this instance, we have an advantage over the district court because of a decision issued by the Puerto Rico Supreme Court after the district court’s ruling. See Autonomous Mun. of Peñuelas v. Ecosystems, Inc., No. CC-2015-0325, Dec. 19, 2016, Certified Translation (“Ecosystems”). As we shall explain, that recent precedent confirms our reading of Puerto Rico’s statutory framework governing solid waste management, bolstering our conclusion that the Humacao and Peñuelas ordinances are preempted under Commonwealth law to the extent they bar uses of CCRs that have been specifically approved by the EQB. Resolving the Commonwealth preemption claim in favor of AES-PR makes it unnecessary for us to address AES-PR’s other arguments on appeal, and we thus limit our discussion to that claim.

A. The Statutory Framework

As described above, Puerto Rico law envisions a collaboration between Commonwealth and local authorities in dealing with solid waste. See, e.g., P.R. Laws Ann. tit. 21, § 4055. However, in the case of a conflict, the statutory scheme explicitly recognizes the preeminence of Commonwealth law. Id. (stating that municipal measures concerning solid waste management must be “in harmony with the environmental public policy of the Commonwealth of Puerto Rico”); see also Liberty Cablevision of P.R., Inc. v. Mun. of Caguas, 417 F.3d 216, 221-22 (1st Cir. 2005) (noting that municipalities exercise only those powers derived from the state, and, thus, “every municipal ordinance must be in harmony with [state] government law, which shall prevail in conflicting situations” (alteration in original) (quoting Lopez, 21 P.R. Offic. Trans. at 84, 121 D.P.R. 75)); see also P.R. Laws Ann. tit. 21, § 4003 (stating that “[t]he municipality is the juridical entity of local government, subordinated to the Constitution of the Commonwealth of Puerto Rico and to its laws”); id. § 4051(o) (stating that municipal authority is “subject to applicable [Commonwealth] legislation”).

The district court recognized this legislated hierarchy, but it questioned whether EQB resolutions carry the force of law such that an EQB permit allowing disposal of CCRs in a sanitary landfill would necessarily supersede a local ordinance prohibiting that disposal. See AES-PR II, 199 F.Supp.3d at 508 (“The Puerto Rico Supreme Court has not ... resolved whether resolutions of executive agencies carry the same power to preempt as laws passed by the Puerto Rico Legislative Assembly.”). The court acknowledged, however, that if EQB resolutions and landfill permits authorized thereunder “carry the full force of law, then the municipal Ordinances would likely be preempted to the extent that they conflict.” Id. As we have recounted, the district court declined to delve into the legal force of the EQB authorizations at issue in this case. See id. at 509.

Unlike the district court, we find that the governing statutes are themselves revealing on the role played by EQB resolutions in establishing Commonwealth law. As an initial matter, the EQB is given the overall authority for the Commonwealth’s compliance with RCRA, see P.R. Laws Ann. tit. 12, § 8002g, and it has express authority to adopt “rules and regulations for solid waste disposal” and “establish the sites and methods to dispose of such solid waste,” id. § 8002e(b)(4)(A). In other words, the Commonwealth’s law on solid waste management is made by the EQB.

Moreover, the “final resolution[s] or de-cisiones]” of the EQB’s Governing Board are treated as decisive under Commonwealth law, subject only to review by the courts. Id. § 8002c(a)(8). By statute, EQB decisions may not be “stayed, unless so ordered by the Circuit Court of Appeals of Puerto Rico or by the [EQB Board] itself.” Id.; see also id. § 8002f(a)(4) (providing that “[a]ny person adversely affected by a resolution, order or decision of the Governing Board [of the EQB] may request the latter to reconsider its determination or request a review by the Court of Appeals of Puerto Rico”). As further evidence that EQB decisions carry the full force of law— including resolutions such as the one authorizing use and disposal of CCRs at the Peñuelas and Humacao landfills—there are sanctions imposed for failure to comply with the agency’s rulings. Individuals who fail to comply with any EQB “resolution, order or agreement ... shall be guilty of a misdemeanor,” and also may be subject to criminal or administrative fines, damages, and sanctions. Id §§ 8002j(a)-(c) (emphasis added).

In our view, these provisions (1) assigning responsibility to the EQB for Puerto Rico’s policy on solid waste disposal, (2) limiting any review of EQB decisions to judicial actions, and (3) imposing criminal consequences for failure to comply with EQB directives definitively establish final EQB decisions on solid waste as Commonwealth law with preemptive power over local ordinances. These provisions are explicitly comprehensive in their scope, giving the force of law not only to generally applicable rules and regulations, but also to “any resolution, order or agreement dictated by the Board.” Id. § 8002j(a).

We are all the more persuaded of this view in light of the Puerto Rico Supreme Court’s recent Ecosystems decision, in which both a majority opinion and concurrence address the preemptive effect of EQB decisions on matters relating to the handling of solid waste—and, specifically, on the use of CCRs. We thus turn to that decision.

B. The Ecosystems Opinion

In the Ecosystems case, the Municipality of Peñuelas sought to enjoin Ecosystems, Inc. from using Agremax as filler material in the construction of its sanitary landfill. Ecosystems, Inc. had been granted a construction permit by Puerto Rico’s Office of Permit Management and the EQB to build the facility, but the permit did not specify the materials to be used in the project. See Ecosystems Majority Op., 2016 WL 7445140, at *1 (“Ecosystems Op.”). Following enactment of the Peñue-las ordinance banning the deposit of CCRs in the municipality, Ecosystems, Inc. obtained an amended permit “authorizing, among other things, the use of manufactured aggregate as filling material in the construction.” Id. at *1. The amended permit, however, did not reference or approve any particular type of aggregate fill material. Id. The Municipality thus maintained that it could bar the use of Agremax pursuant to its ordinance because that prohibition did not conflict with the EQB’s generally worded authorization. See Ecosystems Concurring Op., 2016 WL 7445140, at *17 (“Concurring Op.”) (noting that manufactured aggregates may be created from “rubble from demolition of buildings” and “removed pavement,” as well as from coal ash).

In a lengthy analysis, the Puerto Rico Supreme Court first took up the question of which entity is “in charge of establishing in Puerto Rico the requirements applicable to the handling and disposal of ... solid waste,” Ecosystems Op., 2016 WL 7445140, at *4, and it reviewed the missions of the three levels of government that share responsibility for setting the environmental agenda in the Commonwealth, id. at *4-9. Noting that the EPA’s 2015 Rule established only “minimum national criteria to dispose of coal combustion residuals,” id. at *5 (emphasis omitted), the court observed that “states may impose stricter requirements in relation to this matter,” id. at *6 (emphasis omitted); see also id. at *6 (“[I]t is undeniable that a state may validly prohibit the disposal and use of residuals from the burning of coal for energy production within its territorial limits.”).

The court then considered the role of the EQB. It noted that the agency is authorized “[b]y express mandate” to “deal with matters related to adequate disposal of solid waste,” id. at *7 (citing P.R. Laws Ann., tit. 12, § 8002c), including by means of “orders that it may deem necessary to make sure that the operation of these plants or systems does not harm the environment,” id. at *7. After reviewing EQB regulations governing solid waste, the court summed up: “In short, [EQB] is the agency in charge of determining the form and manner in which to install, operate and maintain facilities for the final disposal of solid waste, for which it approves construction permits in accordance with its public policy.” Id. at *8.

Turning to the role of municipalities, the court noted that the Commonwealth’s public policy is to give municipalities “as much autonomy as possible and provide them with the financial tools and necessary powers and faculties to assume a central and fundamental role in the urban, social and economic development of our country.” Id. at *8. These powers, the court stated, include “provid[ing] by way of ordinance the way in which the handling of solid waste shall be carried out.” Id. at *9 (citing P.R. Laws Ann. tit. 21, § 4055) (emphasis omitted). However, the court also recognized that municipal power is subject to a higher authority, and a municipality cannot “promote and further its own public policy” if that policy conflicts with Commonwealth law. See id. at *9 (stating that a municipality may not act “in contravention with the public policy established by the State” (citing López, 21 P.R. Offic. Trans, at 84, 121 D.P.R. 75)).

The court then addressed the specific case before it, observing that the amended EQB permit issued for the Ecosystems landfill did not “expressly authorize[ ]” the use of OCRs in the construction. Id. at *9. Rather, as noted above, “the authorization to fill with manufactured aggregate was issued in the generic or broad definition of the term,” Concurring Op., 2016 WL 7445140, at *17, meaning that it covered both Agremax and aggregate manufactured from materials other than coal ash. The court also pointed out that the permit did not purport to override “local prohibitions.” Ecosystems Op., 2016 WL 7445140, at *9. In addition, the court observed that neither the EPA nor the EQB had imposed rules governing the use of CCRs as construction materials. Id. at *10-11. Hence, although the EQB permit theoretically authorized the use of Agremax in the landfill construction—as one type of “manufactured aggregate”—neither the permit nor any other applicable law specifically addressed or approved the use of Agremax in the construction project. The court thus identified no federal or Commonwealth law in direct conflict with the Peñuelas ordinance.

Accordingly, the court concluded that the ordinance’s prohibition of coal ash as fill material could be enforced against Ecosystems, Inc. Id. at *11. That conclusion rested, however, on the court’s determination that the EQB “at present has not preempted the field as to the use of aggregate manufactured from ash produced while burning coal as construction material.” Id. at *10 (emphasis omitted). Importantly, the court recognized that the EQB could accomplish preemption: “Nothing prevents the [EQB] from, in the future, exercising its regulatory power as to this matter and expressly preempting the field.” Id. Indeed, the court reiterated near the conclusion of its opinion “that what is decided herein by this Court does not prevent the [EQB] from establishing public policy for the Commonwealth of Puerto Rico as to this matter, if it deems appropriate and in accordance with the legally provided mechanisms.” Id. at *13. A concurring opinion emphasized the same point:

We clarify, as done in the Court Opinion, that the [EQB] may, as a matter of public policy of the State, regulate the use of aggregates including the ash produced when burning coal. The decision taken by the Board as to this matter shall necessarily prevail qver municipal decisions. Otherwise, this would lead to balkanization of the State.

Concurring Op., 2016 WL 7445140, at *17 n.15.

The two opinions leave no doubt that this preemptive force attaches to EQB resolutions addressing specific circumstances, as well as to the agency’s more broadly based regulations. Both opinions focus on the EQB-approved construction permit for the Peñuelas Valley landfill construction project. The majority notes that, even as amended after the Peñuelas ordinance was enacted, “the permit did not state anything as to the use of this type of construction material [CCRs]. That is, the material prohibited by the Municipal Ordinance was not expressly authorized.” Ecosystems Op., 2016 WL 7445140, at *9. From this observation, we think it a fair and obvious inference that, if the permit had expressly authorized the use of CCRs, the municipal ordinance could not have overruled the EQB. Indeed, later in their opinion, the majority confirmed that the ordinance’s enforceability would be precluded by conflicting EQB action, including in a permit, when they explained that the ordinance was enforceable against Ecosystems, Inc. “as it does not in any way violate the current public policy of the Commonwealth of Puerto Rico or the construction permit issued by the [EQB and Permit Office].” Id. at *11 (emphasis added).

The concurring member of the court likewise treated the EQB permit as authoritative, noting that the amended permit issued to Ecosystems, Inc. “was approved by the appropriate agencies and that—for the moment—it is in effect.” Concurring Op., 2016 WL 7445140, at *16; see also id. (observing that “it is a well-known rule that administrative proceedings are assumed to be correct and in accordance with regulations”). And, like the majority, the concurring justice saw room for the Peñuelas ordinance alongside federal and Commonwealth law because the amended Ecosystems permit authorized the use of manufactured aggregate generically, id. at *17, and the municipal ordinance could properly supplement the permit in the absence of “federal or state regulations related to the use of ash as aggregate material for fill,” id at *16. Hence, she observed, Ecosystems, Inc. could use any manufactured aggregate “as long as it is not aggregate from ash produced by burning coal”—a ruling that “sought to harmonize the regulatory faculties of the Municipality with the State’s reasoning power, as mandated by the Autonomous Municipality Act.” Id. at *17.

In this case, the question is whether EQB resolutions and permits that explicitly approve particular uses for CCRs preempt contrary municipal ordinances. Based on the foregoing discussion, we must conclude that they do. In contrast to the broad, generic language of the construction permit at issue in the Ecosystems case, the EQB’s 2015 Resolution provides, inter alia, that “[t]he use of rock ash [i.e., Agremax] is authorized as a material for the solidification process at the Pefiue-las [landfill] in addition to the use of the CCR, which has been already authorized.” The Resolution also gives explicit permission “to include the CCR and rock ash in the list of non-hazardous solid waste that may be disposed of at the Pefiuelas [landfill] and Humaeao [landfill].” The Resolution further contemplates the use of rock ash as alternative daily cover at the two landfills, subject to the EQB’s approval of a petition for a waiver. Ecosystems Pefiue-las Landfill’s operating permit likewise explicitly identifies CCRs among the types of non-hazardous solid waste “to be received for disposal” at the facility. Appellees do not contend that the terms “CCR” or “rock ash,” as used in the EQB resolutions here, are generic in the same way that the term “manufactured aggregate” was held to be in Ecosystems. Nor do they counter AES’s argument that Ecosystems conclusively established that EQB resolutions can have preemptive effect. Hence, in the words of the Ecosystems concurrence, “[t]he decision taken by the [EQB] as to this matter shall necessarily prevail over municipal decisions.” Id at *17 n.15.

IV.

In sum, the EQB’s authorization for particular uses and disposal of CCRs in the Humaeao landfill and the two Pefiuelas landfills preempts the bar on any such uses and disposal imposed by the challenged municipal ordinances. According to the record before us, the EQB has authorized (1) disposal of CCRs at all three landfills, and (2) the use of CCRs, including Agremax, for solidification at the Pefiuelas Valley Landfill. Further, the EQB has invited requests for waivers to allow the use of Agremax as alternative daily cover at the three landfills.

Thus, to the extent AES-PR has complied with all regulatory prerequisites for the deposit of CCRs at the three landfills and obtained the EQB’s approval to move forward, it is entitled to do so. Accordingly, we vacate the summary judgment in favor of the defendants, and remand the case to the district court with directions that it enter judgment for AES-PR consistent with this decision. Each party shall bear its own costs.

So ordered. .

      . In a May 2000 Regulatory Determination, the EPA reaffirmed its earlier conclusion that coal combustion wastes should not be regulated as hazardous waste and “decided that it is appropriate to establish national regulations under non-hazardous waste authorities for coal combustion wastes that are disposed in landfills and surface impoundments.” Notice of Regulatory Determination on Wastes from the Combustion of Fossil Fuels, 65 Fed. Reg. 32,214, 32,221, 32,229 (May 22, 2000), 2000 WL 642307. However, the EPA also stated that regulation was “not warranted” for most of the beneficial uses of coal combustion wastes, such as waste stabilization and use in construction products. RL at 32,214, 32,221.
      Ten years later, the EPA announced that it was again considering whether to regulate CCRs under subtitle C "when they are destined for disposal in landfills or surface im-poundments,” or to "regulate disposal of such materials under subtitle D of RCRA by issuing national minimum criteria.” Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals From Electric Utilities, 75 Fed. Reg. 35,128 (June 21, 2010), 2010 WL 2470432. The EPA expected to continue excluding most beneficial uses of CCRs from hazardous waste regulation, however, noting that they "offer significant environmental benefits.” Id. at 35,154.
      In April 2015, EPA settled on the subtitle D classification for coal combustion waste, and it set national minimum criteria for landfills receiving CCRs for disposal. Hazardous and Solid Waste Management System; Disposal of Coal Combustion Residuals from Electric Utilities ("2015 Rule”), 80 Fed. Reg. 21,302 (Apr. 17, 2015), 2015 WL 1734632. Beneficial uses remained excluded from regulation. Id. at 21,309.

      . The EPA approval was for Puerto Rico's “municipal solid waste permit program,” 59 Fed. Reg. 44,144, and the regulation establishing minimum national criteria likewise refers specifically to "municipal solid waste landfill (MSWLF) units,” 40 C.F.R. § 258.1. Although the parties and district court refer to the landfills at issue in this case as "sanitary” landfills, rather than MSWLFs, the EQB’s authorization for placement of CCRs is based on the landfills' compliance with "the design and operation criteria laid down in Title 40, Part 258 of the Code of Federal Regulations under Subtitle D of the RCRA and [Puerto Rico regulations].” EQB Resolution No. 14-27-20, Sept. 2, 2014, at 13. Hence, our analysis presumes the sanitary landfills in this case are equivalent to MSWLFs.

      . Agremax is produced from a mixture of CCRs and water; the mixture is compressed and allowed to cure, during which time it hardens into what is generically called “rock ash.”

      . Federal law places a number of restrictions on the disposal of liquid waste in sanitary landfills. See 40 C.F.R. § 258.28.

      . The Resolution notes that the Humacao landfill's 2013 Operation Plan "listed the materials that the facility would petition for in a future request for a waiver as materials proposed as alternate cover." Among the materials listed was "Rock Ash from the AES generation plant.” However, no request for a waiver had been submitted at the time the Resolution was issued.

      . The Pefiuelas ordinance provides, in pertinent part, that "[t]he use of ashes coming from the burning of coal, in energy generating plants, as landfill material and its depositing on lands within the territorial limits of the Municipality of Pefiuelas is forbidden.”
      The Humacao ordinance prohibits "[a]ny kind of use of the ash derived from coal combustion in electric power generating plants ... as filler material, whether to level the terrain, for landfills, or in any other kind of filler.” Despite the Humacao ordinance’s focus on the use of CCRs as "filler material,” the municipality's administrator testified in his deposition that the measure prohibits CCRs from being deposited within the geographical boundaries of Humacao. In addition, defendants' motion for summary judgment states that the ordinances ban "the depositing of said CCRs on the ground within the geographical limits of the Municipalities in question.” Although the breadth of the prohibition does not affect the outcome of this appeal, we accept the defendants' characterization for purposes of our analysis. Cf. AES Puerto Rico, L.P. v. Trujillo-Panisse, 199 F.Supp.3d 492, 512 (D.P.R. 2016) (noting that the ordinances "allow CCRs to be bought, sold, and transported in the municipalities so long as they are not deposited on the ground in the process”).

      .Indeed, appellees do not argue—and did not argue below—that their ordinances do not apply to the specific uses of CCRs authorized by the EQB in those landfills. Although appel-lees note that the ordinances do not "pose a complete ban on the use of CCRs,” the uses contemplated by the EQB resolution—disposal, alternative daily cover, and waste solidification—are not among those uses that appel-lees claim the ordinances permit. Nor did appellees argue in their summary judgment briefing that the ordinances’ prohibition on "depositing of ..CCRs on the ground” excludes the three EQB-authorized uses of CCRs.

      .The Humacao ordinance states that "[d]e-positing such ash represents a threat to the environment and the health of people exposed thereto when it is blown by the wind or when it runs off into surface and/or underground water.” The Peñuelas ordinance similarly states:
      The deposit of ashes as landfill creates toxic substances situations blown by the wind and breathed by its inhabitants, which would entail the suffering of breathing ailments, possible birth defects and a high percentage in the pollution of surface and subterranean water due to the runoff of rain and leaching to the aquifers.

      . Although AES-PR had previously been depositing CCRs in the landfills in Humacao . and Peñuelas, we focus in this case on its activities following the EQB’s 2015 Resolution.

      . AES-PR’s complaint also alleges violations of the federal Commerce Clause, the Due Process Clauses of the United States and Puerto Rico constitutions, and the federal and Puerto Rico Contracts Clauses. The complaint further asserts that the ordinances are void and ultra vires under Puerto Rico law.

      . The court also denied defendants' motion for judgment on the pleadings, which raised issues of standing, ripeness, and timeliness. That ruling is not before us.

      . As noted above, AES-PR had not renewed its request for summary judgment based on federal preemption.

      . The court also noted that "several of the Commonwealth law issues presented are already being litigated in related cases in Commonwealth courts." AES-PR II, 199 F.Supp.3d at 519. In one of those actions, the Municipality of Peñuelas sued Ecosystems, Inc. seeking to enjoin the use of Agremax in the construction of the Ecosystems Peñuelas Landfill. The resolution of that action is discussed infra. In another civil action that was later withdrawn, the Municipality of Huma-cao sought "a permanent cease and desist order against the deposit of ash” in the El Coqui landfill.

      . Although the court observed that "[district courts may certify a question of state law to the state's supreme court when the state issue is determinative and there is no controlling precedent from the state court on the issue,” it opted instead to decline jurisdiction. 199 F.Supp.3d at 509.

      .The court went on to consider, and ruled in favor of defendants, on AES-PR's federal Contract Clause and due process claims. 199 F.Supp.3d at 514-18. As with the Commonwealth preemption claim, it declined to exercise supplemental jurisdiction over the remaining Commonwealth claims, “specifically the Puerto Rico ultra vires, Contract Clause, and Due Process Clause claims.” Id. at 519.

      . We recognize that the district court declined to exercise jurisdiction over the Commonwealth preemption claim, a judgment that ordinarily is subject to review only for abuse of discretion. See, e.g., Ramos-Echevarría v. Pichis, Inc,, 659 F.3d 182, 191 (1st Cir. 2011). However, the court’s decision to dismiss that claim was premised on its view that the preemptive force of EQB resolutions was an unresolved issue of law. To the extent there was uncertainty, we believe it was eliminated by the recent Ecosystems decision. Hence, the court's rationale is no longer sustainable as a matter of law and, indeed, the court indicated that, absent the ongoing Commonwealth proceedings and the legal uncertainty, it would have exercised supplemental jurisdiction. See AES-PR II, 199 F.Supp.3d at 519 (noting that “the advanced stage of the litigation and the costs of translating documents into English weigh in favor of the Court exercising supplemental jurisdiction”). We thus consider the Commonwealth preemption issue de novo—like any other legal question raised on appeal. See Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., — U.S. -, 134 S.Ct. 1744, 1748, 188 L.Ed.2d 829 (2014) ("Traditionally, decisions on ‘questions of law' are 'reviewable de novo,' decisions on 'questions of fact’ are 'reviewable for clear error,' and decisions on 'matters of discretion’ are ‘reviewable for "abuse of discretion.” (quoting Pierce v. Underwood, 487 U.S. 552, 558, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988))); see also, e.g., Smith v. Holder, 627 F.3d 427, 433 (1st Cir. 2010) (concluding that a decision "based on legal error” was an abuse of discretion).


source: Caselaw Access Project

author: KAYATTA, Circuit Judge. TORRUELLA, Circuit Judge,

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Luis Yoel DÍAZ-ROSADO, Defendant, Appellant.
    No. 15-1010
    United States Court of Appeals, First Circuit.
    May 18, 2017

      Alejandra Bird López, Guaynabo, PR, for appellant.
    Francisco A. Besosa-Martinez, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief for appel-lee.
    Before HOWARD, Chief Judge, TORRUELLA and KAYATTA, Circuit Judges.
   KAYATTA, Circuit Judge.

Luis Yoel Díaz-Rosado (“Díaz”) was convicted of carjacking under 18 U.S.C. § 2119. On appeal, he challenges the sufficiency of the evidence on the issue of intent, the admission of an alleged confession, the rejection of a proposed supplemental jury instruction, and the admission of an in-court witness identification. For the following reasons, we affirm.

I. Background

Although we recite the facts relevant to Diaz’s sufficiency challenge in the light most favorable to the prosecution, we “provide a more or less neutral summary” of the facts relevant to Diaz’s remaining claims, and reserve further exposition of those facts for our analysis of the claims themselves. See United States v. Flores-Rivera, 787 F.3d 1, 9 (1st Cir. 2015).

On March 8, 2013, Margarita Irizarry-Ramirez (“Irizarry”) picked up her four-year-old granddaughter from elementary school in Hato Rey, Puerto Rico. As Irizar-ry attempted to buckle the child into a car seat, she sensed the presence of somebody approaching from behind. When she turned around, she found herself facing a man standing approximately five feet, six inches tall, and wearing a dark-colored baseball cap, sunglasses, and a dark-colored shirt.

The man attempted to wrest Irizarry’s car key from her. In the ensuing struggle, which we describe in greater detail below, the man seized the key to the car. As this altercation was taking place, Ronald Vázquez-Rosado (“Vázquez”)—a parent at the school—tried to assist Irizarry by attempting to remove her granddaughter from the car. Unable to do so, Vázquez urged Irizarry to remove her granddaughter herself while he tried to restrain the man, who had by that point entered the driver’s seat of the vehicle. Irizarry succeeded, Vázquez got out of the car, and the man drove away.

Vázquez, a former undercover police officer for the Puerto Rico Police Department (“P.R.P.D.”), subsequently gave chase in his own vehicle and called 911. While on the telephone with the 911 operator and a police officer, Vázquez spotted Irizarry’s vehicle being driven by a man with short black hair. Vázquez relayed this information to the operator and the officer. Noticing that Irizarry’s car had suddenly stopped, and fearful that the man might try to engage him, Vázquez drove off and returned to the school.

A short time later, P.R.P.D. Agent William Méndez-Guzmán (“Agent Méndez”) and his patrol partner spotted the stolen vehicle. After a brief chase by car and on foot, Agent Méndez apprehended the driver of the car, whom he later identified as Diaz. Though Irizarry had initially provided the police with a description of the man who had taken her car, she was unable to identify Diaz in a lineup conducted several hours later. Vázquez was similarly unable to identify Diaz in a photo array conducted a few days later.

Agent Méndez testified that after arresting Diaz, he read Diaz his Miranda rights and took him to the local precinct. Agent Méndez further testified that once they were at the police station, he again advised Diaz of his Miranda rights—both verbally and in writing—and after Diaz acknowledged by signature his receipt of a written copy of those rights, Diaz told him that “he wanted to testify something, to state something.” Agent Méndez testified that he “told [Diaz] that if he had anything that he wanted to say ... he should write it out on the reverse side of the [Miranda form],” and that Diaz subsequently wrote and signed a statement that (the defendant stipulated) translates to English as follows:

I, Luis Yoel Diaz Rosado, belatedly repent the acts I committed against the lady and someone known to me who got into a mess that he did not commit. Sorry.
Thoughtfully,
Luis Yoel Diaz Rosado
I took the car keys from the lady under the influence of substances, may God bless her. And I remember that the police hit the siren.
Thoughtfully,
Luis Yoel Diaz Rosado

Later that night, P.R.P.D. Agent Angel Fernández-Ortega (“Agent Fernández”) presented the case to Puerto Rico District Attorney Francelis.Ortiz-Pagán (“D.A. Ortiz”). D.A. Ortiz declined to press charges under the Commonwealth’s carjacking statute, due to concerns that Diaz’s confession was not “conscious and intelligent” under Pueblo v. Millán Pacheco, 182 D.P.R. 595 (2011). Federal prosecutors subsequently charged Diaz with one count of carjacking under 18 U.S.C. § 2119, and a grand jury returned an indictment on this charge on March 21, 2013.

Prior to trial, Diaz filed a motion in limine to suppress his 'written confession, arguing that the confession was provided “under the effects of controlled substances” and thus was not voluntary. In the ensuing hearing, D.A. Ortiz testified that Agent Fernández had informed her that Diaz had appeared to be under the influence of drugs during the lineup, which, again, had taken place several hours after Diaz’s arrest. However, Agent Fernandez denied not only making this statement but also having the impression that Diaz was on drugs. Agent Méndez and another one of the arresting officers— P.R.P.D. Agent Heriberto Soto-Cruz (“Agent Soto”)—similarly testified that Diaz did not appear to be under the influence of controlled substances, and Irizarry testified that she did not notice any of the lineup participants “acting in a weird way physically in any way.” Though the court “f[ou]nd [D.A. Ortiz] credible,” it also determined that “the witnesses are pretty consistent in that this gentleman was not behaving strangely.” The district court then denied Diaz’s motion.

Part way through the subsequent trial, Diaz renewed his motion to suppress his alleged confession on the basis of videos filmed by his brother at the precinct house several hours after Diaz had been brought there. In those videos, an unidentified male voice can be heard saying that “it looks like ... when [Diaz] came in, he came in too ... way too you-know-what on drugs,” and further, that “[Diaz] said ... that he had taken some pills.” Diaz’s brother testified that that voice belonged to a police officer who was staffing the precinct’s reception desk. The brother also testified that Diaz “had a psychiatric history” as well as “drug problems,” and that when he saw Diaz in the station, “[Diaz] was raising his voice, he was babbling, and his hands were on the cell bars and he had an erratic behavior.” Nevertheless, the district court denied Diaz’s renewed motion to suppress, on the ground that the videos failed to show that Diaz was “actually being coerced.”

During trial, the government called Vázquez to testify. In the course of cross-examination, Diaz’s attorney engaged in the following exchange with Vázquez:

Q: And the person was not in that photo; you were not able to identify any person in that photo spread as the person whom you had intervened with.
A: At that moment I was not convinced of the identification of any person, but at this moment I am convinced of the identification of the person.
Q: You are? Please tell me. Please tell me.
A: What do you want me to tell you?
Q: You said that you were now. Please tell me.
A: Yes, I am convinced that I can point out who is the person who carried out the carjacking.
Q: Who did?
A: The man who is seated over there behind the monitor.

The judge then clarified that Vázquez was referring to Diaz. Diaz’s attorney did not ask the court to strike Vázquez’s testimony.

On January 31, 2014, after twice denying Diaz’s motions for acquittal under Rule 29 of the Federal Rules of Criminal Procedure, the court instructed the jury as follows:

We’re almost done. Now let me give you an instruction about statements made by Mr. Diaz-Rosado. And you heard evidence in this case that Luis Yoel Diaz-Rosado made a statement in which the government claims to you that he admitted certain facts. It is for you to decide whether Luis Yoel Diaz-Rosado indeed made that statement, based on the evidence presented here, and, if so, how much weight you give to it. In making these decisions, you should consider all of the elements about the statement including the circumstances under which the statement may have been made and any facts or circumstances tending to corroborate or contradict the version of events described in the statement.

During the course of its deliberations, the jury sent the following note to the district court judge:

Pueblo Y Millán Pacheco [sic] law that confección [sic] need to be concious [sic] and intelligent ... aply’s [sic] to the federal courts? Or the confección [sic] is acceptable no matter in what condition.

Diaz’s attorney asked the judge to respond by telling the jury that “the Court has admitted the confession,” and “it’s up to you, the jury, to decide how much or how little you’re going to believe it.” Diaz’s attorney contended that “telling [the jurors they] don’t have to concern [themselves] with [Millán] would be ... a misstatement of the law,” insofar as “[b]oth [Millán] and federal case law state that a confession has to be given in a freely, voluntary manner.”

The judge opted to state the following:

Now, you need not concern yourselves— the [Millán] holding. [D.A. Ortiz] mentioned it, I did not allow her to go into details. That is a case from the Puerto Rico Supreme Court. Now, you need not concern yourselves with that case. In this particular case, I, as the judge in the case, allowed the confession in this case to be presented into evidence, and you have the confession before you. So, I will give you the instruction I gave you on how to consider that confession as evidence in this case just like any other evidence. And I will read it to you.

After repeating his prior instruction, the judge told the jury:

So, as I stated, I have allowed the confession—I admitted the confession into evidence. So, it is before you to consider. Before the jury could be excused, how-

ever, Diaz’s attorney approached the bench and again “propose[d] that [the judge] advise the jury that the confession has to be given in a free and voluntary manner” and that “like any other piece of evidence they are free to accept it in its totality, accept it partially or not to accept it at all.” The judge once more declined to provide the additional instruction:

I allowed the evidence that the suppression was given, you’ve made your arguments; and they can—you know, either they find it’s true or it’s a whole lie, and that’s the argument [that] you made before the jury. But I made the determination in the suppression conference.

The judge then excused the jury.

Shortly thereafter, the jury convicted Diaz of one count of carjacking under 18 U.S.C. § 2119. Diaz was subsequently sentenced to seventy-one months of imprisonment.

II. Discussion

A. Sufficiency of the Evidence

We review preserved challenges to the sufficiency of the evidence de novo. United States v. Pena, 586 F.3d 105, 111 (1st Cir. 2009). However, in so doing, “we examine the evidence, both direct and circumstantial, in the light most favorable to the prosecution and decide whether that evidence, including all plausible inferences drawn therefrom, would allow a rational factfinder to conclude beyond a reasonable doubt that the defendant committed the charged count or crime.” United States v. Cruz-Díaz, 550 F.3d 169, 172 n.3 (1st Cir. 2008).

Diaz’s sufficiency challenge focuses solely on the element of intent required for a carjacking conviction under § 2119, and so we do as well. The statute imposes liability upon any individual who, “with the intent to cause death or serious bodily harm[,] takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation.” 18 U.S.C. § 2119. Diaz argues that because he did not wield a weapon, make any “threatening gestures or verbal threats,” or otherwise manifest an intent to kill or cause serious bodily harm, the evidence is insufficient to sustain a conviction under the statute.

“The intent requirement of § 2119 is satisfied when the Government proves that at the moment the defendant demanded or took control over the driver’s automobile the defendant possessed the intent to seriously harm or kill the driver if necessary to steal the car (or, alternatively, if unnecessary to steal the car).” Holloway v. United States, 526 U.S. 1, 12, 119 S.Ct. 966, 143 L.Ed.2d 1 (1999). Thus, the conditional intent to cause serious harm or death can satisfy § 2119. Id. at 8, 119 S.Ct. 966.

In our prior opinions deeming the evidence sufficient to support a finding of intent to seriously harm another if necessary, the defendants have, as Diaz notes, possessed items traditionally viewed as weapons, such as guns. See, e.g., United States v. Melendez-Rivas, 566 F.3d 41, 45 (1st Cir. 2009); United States v. Garcia-Álvarez, 541 F.3d 8, 16 (1st Cir. 2008); United States v. Lebrón-Cepeda, 324 F.3d 52, 57 (1st Cir. 2003) (per curiam). Nothing in the statutory language, though, requires the presence of such an item. Nor does common sense. Just as one can use brute force or a variety of items to kill or cause serious harm, one can also use such force or items to manifest an intent to cause death or serious harm if necessary. See United States v. Hayworth, No. 16-5358, — Fed.Appx. -, -, 2017 WL 927782, at *3 (6th Cir. Mar. 8, 2017) (unpublished opinion) (first citing United States v. Fekete, 535 F.3d 471, 480 (6th Cir. 2008); then citing United States v. Edmond, 815 F.3d 1032, 1040 (6th Cir. 2016), vacated and remanded on other grounds sub nom. Harper v. United States, — U.S.-, 137 S.Ct. 1577, 197 L.Ed.2d 698, 2017 WL 1366702 (2017) (mem.)) (finding the evidence sufficient to sustain a § 2119 conviction where the defendant “wrestled with” and “jabbed” a fallen woman who was nine months pregnant).

Here, it is undisputed that Diaz used both physical force and the car itself to effect the heist. So the question is: were Diaz’s actions sufficient to support a finding that Diaz actually intended to cause serious harm if that were necessary to steal the car? While the case is close, we think that the evidence is indeed sufficient when viewed, as it must be, in the light most favorable to the verdict.

We have at the outset a grandmother and her grandchild, with the latter sitting in a car seat inside a vehicle parked near an elementary school. A jury could certainly find that the grandmother would not have surrendered the vehicle with the child inside of it without offering maximum resistance. And Diaz showed from the get-go that he was nevertheless prepared to overcome such resistance. He “grab[bed]” Irizarry’s hand, “struggled] with [her],” and “push[ed] and shov[ed]” her. Eventually, according to Irizarry’s testimony, Díaz “thr[e]w [her] onto the cement sidewalk,” at which point he was able to wrest loose her car key from her keychain. Iri-zarry’s testimony is supported by that of Vázquez, who stated that he observed Diaz “struggling with [Irizarry], managing] to overcome her and ... throw[ ] her, ... [and] slam[ ] her onto the floor.” The record also shows that Diaz put Irizarry’s vehicle into gear and began to move it while she was attempting to extricate the child from the car seat and Vázquez was “struggl[ing]” with Diaz in the front seat.

Viewed in combination and in the light most favorable to the verdict, these facts are sufficient to allow a rational jury to conclude beyond a reasonable doubt that Diaz was willing to cause serious bodily harm in order to abscond with Irizarry’s car. We have previously indicated that the fact that a defendant “used violence from the very beginning of the incident ... suggestfs] a willingness to harm the victim” within the meaning of § 2119. United States v. Rodríguez-Adorno, 695 F.3d 32, 42 (1st Cir. 2012). Here, Diaz not only used violence from the outset, but he also initiated the heist in circumstances where it was virtually certain that violence would be necessary. Crucially, at each juncture of the incident, Diaz did in fact employ whatever force was necessary to accomplish his aim. The force progressed from pushing and pulling, to a body slam, to intentionally moving the vehicle in a manner that, as the culminating act in an effort to separate a desperately resistant grandmother from the car containing her grandchild, could rationally be seen as manifesting an intent to cause serious injury if doing so were necessary to take the car. Because this “plausible rendition of the record” provides adequate support for the jury’s verdict, United States v. Ortiz, 966 F.2d 707, 711 (1st Cir. 1992), we conclude that the government presented sufficient evidence to sustain Diaz’s conviction under § 2119.

B. Written Confession

Diaz next argues that the district court erred by admitting his confession, because the government failed to carry its burden of proving the voluntariness of that confession. He contends that because “he was under [Agent] Méndez’s total and exclusive custody and control” when he provided the statement, “the government’s inability to offer any credible affirmative evidence”— aside from Diaz’s signed Miranda form and Agent Méndez’s testimony—“warrants an inference that the alleged confession was involuntary.”

The problem for Diaz is that the record amply supports the conclusion that his confession did not result from police interrogation or coercion. If an individual simply walks into a police station and announces that he just robbed a bank, the Constitution does not per se bar the government from using that announcement against the person. Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The same is true even if the individual is in police custody when he makes such an announcement, so long as the police do not interrogate the individual, i.e., engage in “[a] practice that the police should know is reasonably likely to evoke an incriminating response,” Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), or otherwise engage in “coercive police activity,” Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986).

Here, Officer Méndez testified that immediately after he booked Diaz at the police station and administered verbal and written Miranda warnings—the latter of which Diaz signed—Diaz told him of his own volition that “he wanted to testify something, to state something.” Diaz does not parry this testimony with any claim that Agent Méndez coerced or improperly elicited his confession. Rather, he contends that his confession was not “voluntary” in the sense that his decision to speak was the result of a drug-addled state.

The flaw in this argument is that in this context, a finding that a confession is not “voluntary” requires a finding of coercive police activity, even if only in the form of a custodial interrogation. Id.; see also United States v. Palmer, 208 F.3d 55, 61-62 (1st Cir. 2000). Here, there is no evidence of such activity, and so the district court did not err in finding the confession admissible.

Taking a slightly different tack, Diaz points to the general principle that waivers of important rights need be “knowing, intelligent, and voluntary.” See, e.g., United States v. Melendez-Santiago, 644 F.3d 54, 59 (1st Cir. 2011) (quoting Maryland v. Shatzer, 559 U.S. 98, 104, 130 S.Ct. 1213, 175 L.Ed.2d 1045 (2010)); see also Miranda, 384 U.S. at 479, 86 S.Ct. 1602. Here, though, there was no waiver of any such right. The only relevant right was the Fifth Amendment right not to be compelled to speak, and its prophylactic corollary to receive a Miranda warning before being subjected to custodial interrogation. Diaz makes no claim that he was interrogated while in custody, nor does he claim that he was otherwise coerced. And though the Fifth Amendment confers the “right to remain silent,” Miranda, 384 U.S. at 479, 86 S.Ct. 1602, that right simply means the right not to be compelled by the government into offering evidence against oneself, see id. at 478, 86 S.Ct. 1602. Absent any evidence of such compulsion here, and given Officer Méndez’s unrebutted testimony regarding the lack of coercion, there was no need for the district court to find any waiver, knowing or otherwise.

This is not to say that evidence of Diaz’s mental state is irrelevant to his guilt or innocence. The jury could well have considered his alleged impairment as reason to give the confession little or no weight. See United States v. Feliz, 794 F.3d 123, 130-31 (1st Cir. 2015). Diaz cites no authority, though, for the mandatory exclusion of a volunteered confession solely because the confessor was under the influence of a controlled substance at the time of the confession.

We reject, too, Diaz’s complaint that the district court never expressly stated that the confession was voluntary. As we have explained, the only relevant issue of volun-tariness was whether the confession was coerced by police misconduct. The court’s express and supported finding that the confession was not coerced served as a sufficient proxy for a finding of relevant voluntariness. See id. at 131 (citing Sims v. Georgia, 385 U.S. 538, 544, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967)) (finding that the district court’s “conclu[sion] that the confessions were not coerced ... was enough to provide a sufficiently clear ruling” on the matter of voluntariness).

We also see no basis for concluding that the district court delegated to the jury the “purely legal question” of voluntariness. See id. at 130. To the contrary, the district court quite properly and expressly left to the jury only the question of how much weight to give the confession, leaving Diaz able to argue that it was the product of his intoxicated condition and thus not credible. This allocation of factfinding responsibility was precisely what precedent calls for. See kL at 130-31.

C. Jury Instruction

Diaz next contends that the district court abused its discretion in responding to the jury’s question about the confession. He argues in his brief that “[t]he emphasis placed on the judge’s admission of the alleged confession could be read to instruct the jury that they must consider the confession, allowing it discretion only as to whether it would be ... given a great deal of weight or less weight, but not that it was free to disregard the alleged confession.” He further contends that “[t]he clarifying instruction requested by the defense—you as the jury are entitled to accept the confession or to disregard it based on the circumstances surrounding the written statement—would have gone a long way to correcting this impression.”

“In determining whether a district court’s refusal to give a jury instruction is reversible error, ‘we look to see whether the requested instruction was (1) correct as a matter of substantive law, (2) not substantially incorporated into the charge as rendered, and (3) integral to an important point in the case.’ ” United States v. Berríos-Bonilla, 822 F.3d 25, 32 (1st Cir.), cert. denied, — U.S.-, 137 S.Ct. 206, 196 L.Ed.2d 159 (2016).

Even granting Diaz the argument that his requested instruction was correct as a matter of substantive law, we agree with the government that the instruction was substantially incorporated into the charge as rendered. Diaz did not ask that the trial judge not tell the jury that he had determined the confession to be admissible. The only relevant difference between Diaz’s requested instruction and the district court’s given instruction is that Diaz wanted the jurors told expressly that, in deciding how much weight to give the confession, they could opt for no weight at all. We think that such a possibility was manifest in the instruction that the court reread to the jurors telling them that they were to decide how much weight to give a confession based, among other things, on all of the circumstances in which it was given. The court’s reminder that the jurors should treat the evidence like all other evidence—which they must have known they could disregard if they thought the confession warranted no weight—reinforced this manifest possibility. Accordingly, the district court did not abuse its discretion by choosing to repeat its prior instruction rather than using the precise language proposed by Diaz.

D. In-Court Identification

Finally, Diaz’s challenge to "Vazquez's in-court identification of Diaz is hobbled by his lack of objection at trial and, in any event, defeated by his express solicitation of the now-challenged testimony. In fact, the record shows that Vázquez initially manifested reluctance to actually name Diaz, and did so only after Diaz’s counsel’s repeated requests that Vázquez “[pjlease tell [him]” who took Irizarry’s car. On this record, Diaz cannot argue that the district court should have stricken Vázquez’s testimony, much less that it was plain error for the court not to do so sua sponte. See United States v. Cruz-Feliciano, 786 F.3d 78, 89 (1st Cir. 2015) (“[A] defendant cannot complain about the admission of testimony directly responsive to a question posed by defense counsel.”).

III. Conclusion

For the foregoing reasons, we affirm.

TORRUELLA, Circuit Judge,

concurring.

While I agree with this opinion’s analysis finding conditional specific intent on the facts of this case, I write separately in order to emphasize why a narrow reading of this opinion and the requirements for specific intent are in order.

Congress does not have the authority to criminalize any behavior that it desires. Rather, its power is limited, inter alia, by the Commerce Clause. United States v. Lopez, 514 U.S. 549, 552-53, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). This limitation is in place because our system of government is a federal one. Matters of crime control have traditionally been reserved to the states and for good reason. Local understandings about crime, criminal behavior and punishment have varied, as can be seen most recently with the upsurge in states legalizing the use of marijuana.

The dangers inherent in overlapping jurisdiction are evident in this case. Local police were unsuccessful in persuading local prosecutors to bring a case against Diaz, so they appear to have somewhat clarified their account and taken it to the U.S. Attorney’s office, who willingly took the case. These facts suggest the risk of abuse that this type of forum shopping affords to the police.

For these reasons, federal criminal statutes need to be interpreted narrowly, to ensure that the courts are not extending federal jurisdiction beyond the point envisioned by Congress and intruding into realms specifically left to the Commonwealth. Here Congress has built at least two significant limiting features into the elements of the offense: (1) specific intent to commit (2) substantial injury. I will address these in turn, taking the latter first.

I. Substantial Injury

The carjacking statute applies to anyone who “with the intent to cause death or serious bodily harm takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do so.” 18 U.S.C. § 2119. While there is no definition of “serious bodily harm” in the body of the statute, there is a sentence enhancement imposed when the perpetrator actually causes “[s]erious bodily injury,” which itself is further defined as “bodily injury which involves—(A) a substantial risk of death; (B) extreme physical pain; (C) protracted and obvious disfigurement; or (D) protracted loss or impairment of the function of a bodily member, organ or mental faculty.” 18 U.S.C. § 1365(h)(3). This level of harm contemplated by the statute is significant, and requires more than simply injuring or threatening to injure the victim. There must be an intent to cause something equivalent to “extreme physical pain,” “protracted and obvious disfigurement,” or “protracted loss or impairment of the function of a bodily member, organ or mental faculty.” Id.

II. Specific Intent

While the substantial injury requirement is a significant limiting factor on the types of cases that may be covered by this statute, the specific intent requirement also considerably limits its scope. It is insufficient to prove that substantial injury is a likely or probable result; rather the government has to prove that the defendant specifically intended that substantial injury would occur. The requirement that there be specific intent to cause serious bodily injury has been complicated somewhat by the Supreme Court in Holloway v. United States, 526 U.S. 1, 119 S.Ct. 966, 143 L.Ed.2d 1 (1999). There the Supreme Court held that “[t]he intent requirement of § 2119 is satisfied when the Government proves that ... the defendant possessed the intent to seriously harm or kill the driver if necessary to steal the car.” Id. at 12, 119 S.Ct. 966. This has become known as conditional intent, and it means that the government does not have to prove that the defendant always intended, regardless of the victim’s actions, to cause serious bodily harm. Rather, it is enough for the government to prove that the defendant acted with the intent to cause serious bodily harm if such harm was necessary to effect his or her aims.

Either because of the high level of, intent required by the statute or, perhaps more likely, because of the ubiquity of firearms, carjacking cases frequently involve firearms. Holloway, 526 U.S. at 4, 119 S.Ct. 966 (firearm pointed at driver and a threat to shoot unless the driver handed over the car keys); United States v. Melendez-Rivas, 566 F.3d 41, 43 (1st Cir. 2009) (gun held up to victim’s face); United States v. García-Álvarez, 541 F.3d 8, 11-12 (1st Cir. 2008) (victim was assaulted by four men possessing at least one firearm); United States v. Matos-Quiñones, 456 F.3d 14, 16 (1st Cir. 2006) (handgun pressed against victim’s back); United States v. Lebrón-Cepeda, 324 F.3d 52, 57 (1st Cir. 2003) (per curiam) (loaded and cocked revolver placed against the victim’s head); United States v. Evans-Garcia, 322 F.3d 110, 115 (1st Cir. 2003) (gun placed on the victim’s head and told gun was cocked).

Indeed, the original carjacking statute limited itself to carjackings “committed by a person ‘possessing a firearm.’ ” Holloway, 526 U.S. at 5, 119 S.Ct. 966. However, the original statute was amended in 1994 to omit the firearm limitation. Id. Thus, although firearms may frequently still be present at carjackings, it seems clear that Congress did not intend for the statute to only apply to situations in which a firearm is present.

This does not mean, however, that the other limitations present in the statute were, or should be read to have been, watered down. Because firearms are themselves capable of causing serious bodily injury, courts have been quick to find specific intent to cause the same when a firearm is present. The question posed by this case is what set of facts can amount to a specific intent to commit serious bodily injury in the absence of a firearm?

The government points to two cases that it argues suggest that physical threats are sufficient to prove the required intent. In United States v. Edmond, a group of carjackers succeeded in carjacking five vehi-cíes and attempted carjacking a sixth. 815 F.3d 1032, 1038 (6th Cir. 2016), vacated and remanded on other grounds sub nom. Harper v. United States, — U.S. -, 137 S.Ct. 1577, 197 L.Ed.2d 698, 2017 WL 1366702 (2017) (mem.). In five of the six instances, the Sixth Circuit easily upheld the sufficiency of the evidence as to intent because “[t]he intent element of the carjacking offense is satisfied at a minimum if ‘a defendant brandishes a firearm and ... physically touches the carjacking victim.’ ” Id. at 1039 (quoting United States v. Washington, 714 F.3d 962, 968 (6th Cir. 2013)). The attempted carjacking count presented a closer question, however, because the jury did not convict the defendant of the related firearm count, suggesting that it was not necessarily convinced that there was a firearm present at the attempted carjacking. Id. at 1040. The facts of this count are elusive. One of the defendants attempted to steal a car from a valet service but “[t]he valet wrestled the keys away from [the defendant].” Id. The Sixth Circuit held that “the jury reasonably could have viewed [the defendant’s] physical fight with the valet as indicative of ‘intent to cause death or serious bodily harm.’ ” Id In making this argument the Sixth Circuit relied on its own prior precedent holding that “[t]he requisite mens rea can be shown by evidence of an intent to use a knife, a baseball bat, brute force, or any other means that indicates an ability and willingness to cause serious bodily harm or death if not obeyed.” United States v. Fekete, 535 F.3d 471, 480 (6th Cir. 2008).

Those courts that have not found specific intent tend to base their holding on Holloway’s finding that “an empty threat, or intimidating bluff, ... standing on its own, is not enough to satisfy § 2119’s specific intent element.” 526 U.S. at 11, 119 S.Ct. 966. For example, in United States v. Bailey, the Fourth Circuit found insufficient evidence of specific intent when the defendant jumped in the backseat of a vehicle, pressed something cold and hard against the neck of the driver, and then drove off in the vehicle after the driver abandoned it in fear for his life. 819 F.3d 92, 95 (4th Cir. 2016). The court reasoned that all of the cases finding specific intent had evidence showing that the defendants “threatened their victims with actual weapons, made affirmative threatening statements, and/or physically assaulted their victims.” Id. at 97. In Bailey, in contrast, the Fourth Circuit found that by holding a hard object against the driver’s neck the defendant intended to coerce the victim, but absent evidence of an actual weapon this could not amount to a specific intent to cause serious harm to the victim. Id. Even combined with evidence of “generalized recklessness and desperation” the court found this insufficient to support a finding of specific intent. Id. at 98.

I am willing to join the majority opinion because the facts of this case more closely align with the threats and attempts to use brute force identified by the Sixth Circuit above, than they do with the “empty threat” or “bluff’ identified by Holloway and the Fourth Circuit. Moreover, while certain forms of physical struggle, while not necessarily indicating an empty threat or bluff may still not rise to the level of threatening serious bodily harm, in this case, Diaz displayed a willingness to use as much physical force as was necessary to effectuate his aims. His actions in physically struggling with both Mrs. Irizarry and Mr. Vázquez do not have the appearance of being empty threats or bluffs but rather actual attempts to use brute force to take the car. The acts of violence that Diaz actually committed, combined with the continuing escalation of violence as he encountered and overcame obstacles in taking the car, all indicate that the jury had sufficient evidence to find specific intent to cause serious bodily injury. This case should not be read to indicate, however, that we are lowering the threshold required to find specific intent. Rather, we are merely finding, consistent with the carjacking statute, that there are numerous ways by which serious bodily injury may be committed.

      . As a result of the altercation, Irizarry suffered scratches, cuts, and a hematoma on her left knee.

      . We reject Diaz’s argument that the district court committed error in its assignment of the burden of persuasion on the question of vol-untariness. Either Diaz waived this argument by agreeing during the suppression hearing to assume whatever burden the district court placed on him, or he failed to object to that burden, thereby circumscribing our review to plain error. See United States v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002). And even if we were to assume arguendo that the district court mixed up the burdens, our earlier determination that the confession was voluntary precludes us from finding plain error. See United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001).

      . We therefore need not decide whether a failure by the district court to make an ultimate finding of voluntariness could be prejudicial error where on de novo review we find the confession to have been voluntary.

      . The government argues otherwise. In its view, Diaz’s proposed instruction urges the jury to "make another independent finding on the issue of voluntariness.”

      . Diaz concedes that the prior jury instruction was "adequate.”

      . Notably, the court had earlier instructed the jurors that they "may believe everything a witness says or ... part of what a witness says or ... zero, nothing of what a witness says.”


author: BARRON, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Jervis A. HILLAIRE, Defendant, Appellant.
    No. 15-1692
    United States Court of Appeals, First Circuit.
    May 18, 2017
    James S. Hewes, S Portland, ME, for appellant.
    Renée M. Bunker, Assistant United States Attorney, with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellee.
    Before LYNCH, THOMPSON, and BARRON, Circuit Judges.
   BARRON, Circuit Judge.

Jervis A. Hillaire challenges his conviction for conspiracy to commit access-device fraud on the ground that the District Court erred in denying his pretrial suppression motion. We affirm.

I.

Hillaire, along with his co-defendant, Gyadeen P. Ramdihall, was indicted in federal court in the District of Maine on February 25, 2014, for conspiracy to possess and use counterfeit access devices with intent to defraud, see 18 U.S.C. § 1029(a)(1), (a)(3), (b)(2); id § 371, as well as several related counts. Specifically, Hil-laire was also indicted for (1) possession of counterfeit access devices, and aiding and abetting such possession; (2) use of counterfeit access devices, and aiding and abetting such use; and (3) wire fraud, and aiding and abetting wire fraud. See 18 U.S.C. § 1029(a)(1), (a)(3); id. § 1343; id. § 2. Before their trial, Hillaire and Ramdi-hall submitted motions to the District Court to suppress evidence and statements that had been obtained in the previous months in connection with three traffic stops.

Two of the stops occurred in Maine, on September 6, 2013 and January 24, 2014, respectively, and were carried out by local law enforcement. The other stop occurred in Ohio, on October 10, 2013, and was carried out by state law enforcement. The evidence Hillaire and Ramdihall sought to suppress included seventeen credit cards that were found in the trunk of a rental car during the Ohio traffic stop on October 10, 2013, as well as the information that law enforcement obtained from those cards by swiping the cards’ magnetic strips through a card reader.

After a two-day suppression hearing, the District Court denied Hillaire’s and Ram-dihall’s motions to suppress the evidence obtained from the three traffic stops. Hil-laire then conditionally pled guilty to conspiracy to possess and use counterfeit devices in violation of 18 U.S.C. § 1029(a)(1) and (a)(3). He reserved his right to appeal from the District Court’s denial of his suppression motion. He was sentenced to 13 months’ imprisonment and three years’ supervised release, and ordered to pay $17,987.56 in restitution. He now appeals the District Court’s denial of his motion to suppress the evidence obtained from the October 10, 2013 traffic stop in Ohio. We review the District Court’s legal conclusions de novo and its factual findings for clear error. United States v. Belton, 520 F.3d 80, 82 (1st Cir. 2008).

II.

We recounted the facts relevant to the Ohio stop at length in United States v. Ramdihall, which is also decided this day, and so we need not do so here. See United States v. Ramdihall, 859 F.3d 80, 89-91, 2017 WL 2177140 (1st Cir. 2017). Unlike Ramdihall, Hillaire was a passenger in the car, rather than its driver. But, when a police officer makes a traffic stop, both the driver of the vehicle and the passengers within it are seized within the meaning of the Fourth Amendment. Thus, if the seizure is unlawful, as Hillaire contends it was, he has standing to seek the suppression of the seizure’s fruits. Brendlin v. California, 551 U.S. 249, 257, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007); see also United States v. Starks, 769 F.3d 83, 89 (1st Cir. 2014). Nevertheless, Hillaire’s challenge to the lawfulness of the seizure fails on the merits for the reasons already provided in Ramdihall. See Ramdihall, 859 F.3d at 90-95. And, as there was no unlawful seizure, the evidence that Hillaire seeks to suppress obviously does not constitute the fruits of an unlawful seizure.

III.

All that remains for us to consider with respect to Hillaire’s challenge to the denial of his suppression motion is Hillaire’s contention that the District Court erred in concluding that the warrantless swiping of the credit cards through the card reader was constitutional. We find no merit in this challenge, either.

Hillaire contends that the District Court erred because credit cards are “analogous to cell phones”—which generally cannot be searched without a warrant, Riley v. California, — U.S. -, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014)—due to the capacity of the magnetic strips on credit cards to store “personal digital data.” In support of the argument, Hillaire asserts that the magnetic strips on credit cards store “confidential financial information” and “data concerning merchandise purchased,” including “locations where the credit card was used” and “types of merchandise purchased.” The only evidence presented on the matter in the District Court, however, showed that, except when magnetic strips are altered for criminal purposes, the magnetic strips “contain!] only the card number and the expiration date, which [are] routinely given to retailers and [are] visible on the front of the card.” Thus, this aspect of his challenge fails as well.

IV.

For the foregoing reasons, we affirm.

      . Ramdihall also conditionally pled guilty to conspiracy to possess and use counterfeit devices in violation of 18 U.S.C. § 1029(a)(1) and (a)(3).

      . In pressing this argument, Hillaire argues that under United States v. Almeida, 748 F.3d 41 (1st Cir. 2014), and United States v. Campbell, 741 F.3d 251 (1st Cir. 2013), he has standing to challenge the search of the "items seized”—i.e., the credit cards—in this case, notwithstanding that he was only a passenger in the vehicle. But, given that the challenge has no merit, we need not decide whether he has standing to bring it.

      . See United States v. DE L'Isle, 825 F.3d 426, 432-33 (8th Cir. 2016) (finding no reasonable expectation of privacy in credit card strips because, "in the normal course, all of the information found in the magnetic strips on ... credit cards is identical to the information in plain view on the front of the cards”); United States v. Bah, 794 F.3d 617, 633 (6th Cir. 2015) (finding no reasonable expectation of privacy in credit card strips under Riley because the information stored on the strips, "unless re-encoded, would 'more or less match that provided on the front and back of the card”), cert, denied sub nom. Harvey v. United States, - U.S. -, 136 S.Ct. 561, 193 L.Ed.2d 447 (2015); United States v. Alabi, 943 F.Supp.2d 1201, 1286-87 (D.N.M. 2013) (finding no reasonable expectation of privacy in credit card strips because, unless the credit cards are fraudulent, "[t]he information disclosed in scanning credit and debit cards’ magnetic strips is limited to the same information that the exterior of the card discloses”), aff’d on other grounds, 597 Fed. Appx. 991 (10th Cir. 2015).