text:
    Jeannette BUNTIN, Plaintiff, Appellant, v. CITY OF BOSTON; James McGonagle; Scott Alther, Defendants, Appellees.
    No. 16-2265
    United States Court of Appeals, First Circuit.
    May 15, 2017

      W. Kendall and Law Office of W. Kendall, North Reading, MA, on brief for appellant.
    Nicole M. O’Connor, Senior Assistant Corporation Counsel, City of Boston Law Department, and Eugene L. O’Flaherty, Corporation Counsel, on brief for appel-lees.
    Before TORRUELLA, SELYA, and . LYNCH, Circuit Judges.
   LYNCH, Circuit Judge.

This appeal causes us to decide a question of first impression in this circuit. We hold that a plaintiff may not bring claims for damages under 42 U.S.C. § 1981 against state actors, including defendants sued in their official capacities as government officials—here, employees of the City of Boston. This result is required by Jett v. Dallas Independent School District, in which the Supreme Court held that § 1981 does not provide an implied private right of action for damages against such officials and that “the express cause of action for damages .created by [42 U.S.C.] § 1983 constitutes the exclusive federal remedy for violation of the rights guaranteed in § 1981 by state governmental units.” 491 U.S. 701, 733, 109 S.Ct. 270% 105 L.Ed.2d 598 (1989). Congress has not, in the nearly three decades since Jett, demonstrated any intention to compel a different result. Our holding brings us into agreement with eight other circuits, and into disagreement with only one. We affirm the district court’s dismissal of the action.

I.

A. Facts and Procedural History

In a prior appeal in this case, we affirmed dismissal of the complaint’s § 1983 claims on statute of limitations grounds. The dismissal of those § 1983 claims provides pertinent background. We also found error in the dismissal of the § 1981 claims on the sole ground of failure to exhaust administrative remedies, and we remanded to the district court. Buntin v. City of Boston (Buntin I), 813 F.3d 401 (1st Cir. 2015).

We repeat only the essential facts here; our earlier decision provides a more complete description. See id. at 403-04. The plaintiff, Jeannette Buntin, represents the estate of her late father Oswald Hixon, a black man, and sued in state court on February 6, 2015. The case was later removed to federal court. Hixon was employed by the City of Boston as a repairman in the Department of Public Works (“DPW”) and was supervised by defendants Scott Alther and James McGonagle, both of whom are white men. In 2007, Hixon was suspended for twenty days without pay, after failing a random drug and alcohol test. Hixon was fired on February 10, 2011. The reason given was his second violation of the City’s drug and alcohol policy.

The complaint alleges that this stated ground for termination was a pretext for racial discrimination and retaliation against Hixon for protesting past discriminatory treatment at work. It also alleges that in January 2013, after Hixon applied for state unemployment benefits, Alther and McGonagle testified falsely at hearings that Hixon had been under the influence of drugs or alcohol at work and had refused to take a required drug and alcohol test. Hixon died in 2014.

B. District Court Proceedings on Re-. mand

On remand from this court, the parties engaged in discovery with respect to Bun-tin’s § 1981 damages claims—which were all that remained of the lawsuit after Bun-tin I—and then filed cross-motions for summary judgment.

On September 19, 2016, the district court granted summary judgment to the defendants. Buntin v. City of Boston, 209 F.Supp.3d 368 (D. Mass. 2016). The court applied Jett, reviewed post-Jett legislation, held that § 1981 provides no implied private right of action for damages against state actors, id. at 369-71, dismissed the federal claims, and remanded the remaining state law claims to state court, ⅛ at 371.

II.

We begin by clearing away a threshold argument made by Buntin. Although Buntin admits that Buntin I did not explicitly address the question at hand, she argues that Buntin I, by holding that the complaint’s factual allegations “plausibly suggest that Buntin is entitled to relief on a [§ ] 1981 claim,” 813 F.3d at 406, necessarily also made an implicit holding that § 1981 provides an implied private right of action for damages against state actors. That purported implicit holding, she says, constitutes law of the case. She is mistaken.

“The law of the case doctrine ‘posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.’ ” United States v. Moran, 393 F.3d 1, 7 (1st Cir. 2004) (quoting Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983), supplemented by 466 U.S. 144, 104 S.Ct. 1900, 80 L.Ed.2d 194 (1984)). The doctrine both “prevents relitigation in the trial court of matters that were explicitly or implicitly decided by an earlier appellate decision in the same case” and “binds ... a successor appellate panel in a second appeal in the same case.” Id Whether the law of the case doctrine applies is a question of law, which we review de novo. United States v. Matthews, 643 F.3d 9, 13 (1st Cir. 2011).

The question we now address was not decided in Buntin I. As to dismissal of the § 1981 claims, Buntin I decided that the district court’s sole ground for dismissal— failure to exhaust administrative remedies—was not a requirement of § 1981. 813 F.3d at 405. It also rejected the defendants’ arguments that Buntin had not brought her § 1981 claims “within the applicable four-year statute of limitations,” id., and that her allegations were so con-clusory as to justify dismissal, id. at 405-06. Whether § 1981, standing alone, provides a private right of action for damages was not at issue in Buntin I, and this court’s rejection of the defendants’ other argued grounds for dismissal did not implicitly confirm that Buntin’s § 1981 claims had no other deficiencies not argued to us.

Given the earlier dismissal of the § 1983 claims, the federal courts lack subject-matter jurisdiction if § 1981 does not provide Buntin with a private right of action for damages. See Bonano v. E. Caribbean Airline Corp., 365 F.3d 81, 83 (1st Cir. 2004); see also Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”). Because the present argument for dismissal pertains to subject-matter jurisdiction, the defendants are not precluded from raising it. See Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Colombani, 712 F.3d 6, 10 & n.3 (1st Cir. 2013).

III.

We turn to the key issue: whether Jett’s reading of § 1981 controls or has since been reversed by Congress. Because the question is one of statutory interpretation, we exercise de novo review. See Bonano, 365 F.3d at 83.

Joining the majority of our sister circuits, we hold that § 1981, as the Supreme. Court held in Jett, provides no implied private right of action for damages against state actors. That is so even given Congress’s post-Jett amendment of the statute via the Civil Rights Act of 1991.

A. Background: Jett and the Civil Rights Act of 1991

The present-day § 1981(a) provides:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

42 U.S.C. § 1981(a). The rights protected by that sentence—which for many decades was the only sentence of § 1981—were first recognized by Congress in 1866, in the immediate aftermath of the Civil War. See Civil Rights Act of 1866, § 1, 14 Stat. 27, 27; Jett, 491 U.S. at 713-22, 109 S.Ct. 2702.

In 1871, Congress enacted the direct predecessor of the present-day § 1983. See Civil Rights Act of 1871, § 1, 17 Stat. 13, 13. That portion of the 1871 Act “was seen by both opponents and proponents as amending and enhancing the protections of the 1866 Act by providing a new civil remedy for its enforcement against state actors.” Jett, 491 U.S. at 724, 109 S.Ct. 2702.

Jett, in pertinent part, addressed whether that single sentence of § 1981—that is, present-day § 1981(a)—“provides an independent federal cause of action for damages against local government entities.” Id. at 705, 109 S.Ct. 2702. After extensively analyzing the statutory text, statutory structure, and legislative history, the Court held that “Congress intended that the explicit remedial provisions of § 1983 be controlling in the context of damages actions brought against state actors alleging violation of the rights declared in § 1981.” Id. at 731, 109 S.Ct. 2702. The Court explained that its previous cases inferring a § 1981 damages remedy against private actors were distinguishable because Congress had provided no remedy for that sort of violation. See id. at 732, 109 S.Ct. 2702. By contrast, “Congress ha[d] established its own remedial scheme” for suits against state actors when it enacted § 1983. Id. at 731, 109 S.Ct; 2702.

Two years after Jett, § 1981 was amended by the Civil Rights Act of 1991 (“the 1991 Act”), Pub. L. No. 102-166, 105 Stat. 1071. The 1991 Act stated that additional remedies and protections were needed to respond to discrimination in employment, id § 2, and that one of its purposes was “to respond to recent decisions of the Supreme Court by expanding the scope of relevant civil rights statutes in order to provide adequate protection to victims of discrimination,” id. § 3(4). To that end, section 101 of the 1991 Act added two new subsections to 42 U.S.C. § 1981:

(b) “Make and enforce contracts” defined
For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.
(c) Protection against impairment
The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.

42 U.S.C. § 1981(b)-(c).

A report issued by the House Committee on Education and Labor, dated April 24, 1991, stated that the new § 1981(b) was meant to “overrule Patterson,” a case decided one week before Jett in which the Court had found § 1981 inapplicable to racial harassment or discrimination that occurred after a contract’s formation. H.R. Rep. No. 102-10(1) (“House Rep. I”), at 92 (1991), reprinted in 1991 U.S.C.C.A.N. 549, 630, 1991 WL 70454; see Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989). The report also stated that the new § 1981(c) was meant to “codify the long-standing principle established in Runyon v. McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976), that [§ ] 1981 reaches private as well as governmental conduct.” House Rep. I, at 141; see also M. at 92.

A second report, issued by the House Committee on the Judiciary on May 17, 1991, reiterated both points. H.R. Rep. No. 102-40(11) (“House Rep. II”), at 2, 35-37 (1991), reprinted in 1991 U.S.C.C.A.N. 694, 694-95, 728-31, 1991 WL 87020. The Judiciary Committee’s report cited and described several other then-recent Supreme Court cases that the 1991 Act was meant either to codify or to repudiate. See ⅛ at 2.

Neither of the House Reports mentioned Jett even in passing. Nor did the 1991 Act itself.

Since the 1991 Act, nine federal courts of appeals have decided whether § 1981, as amended by the 1991 Act, now provides an implied private right of action for damages against state actors. Only the Ninth Circuit has held that Congress implicitly overruled Jett by adding the new § 1981(c) via the 1991 Act. Fed’n of African Am. Contractors v. City of Oakland, 96 F.3d 1204, 1205, 1214 (9th Cir. 1996). Eight others have reached the opposite conclusion and reaffirmed Jett as good law.

B. Congress Has Not Overruled Jett or Added an Implied Private Right of Action for Damages to § 1981

To determine whether the 1991 Act overruled Jett and created an implied private right of action for damages against state actors, we examine Congress’s intent. Because “private rights of action to enforce federal law must be created by Congress[,] [t]he judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy.” Alexander v. Sandoval, 532 U.S. 275, 286, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001) (citation omitted); see also Gonzaga Univ. v. Doe, 536 U.S. 273, 284, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002); Bonano, 365 F.3d at 84.

Looking first to the statutory text and structure of the § 1981 amendments, we find no evidence that Congress meant for the 1991 Act to overrule Jett or provide a new private right of action for damages against state actors. Although the new § 1981(c) clarified that the “rights protected by [§ 1981] are protected against impairment by nongovernmental discrimination and impairment under color of State law,” 42 U.S.C. § 1981(c) (emphasis added), that language simply clarifies the scope of the rights that § 1981 confers. The Ninth Circuit’s holding that the new language created an implied remedy against state actors independent of § 1983 elides “the distinction between rights and remedies.” McGovern, 554 F.3d at 119. Jett’s logic as to the statutory text and structure still applies with full force: because Congress “established its own remedial scheme” in § 1983 for civil rights violations by state actors, 491 U.S. at 731, 109 5.Ct. 2702, federal courts should not exercise their limited power “to imply or create [additional] remedies” via § 1981, id. at 732, 109 S.Ct. 2702. See Campbell, 752 F.3d at 671; McGovern, 554 F.3d at 121-22.

The legislative history of the 1991 Act is consistent with our interpretation of the Act’s text and structure. The 1991 Act explicitly cited several Supreme Court holdings that the Act was meant either to codify or to repudiate. Similarly, although the House Reports expressed a broadly stated concern that recent Supreme Court decisions had too sharply limited protections against employment discrimination and other civil rights violations, the House Reports went on to cite those disfavored decisions by name—including several from spring 1989, just two years earlier and within mere weeks or months of the Jett decision. See, e.g., House Rep. II, at 2-4; House Rep. I, at 92, 141. The new § 1981(c), the House Judiciary Committee’s Report explained, was meant to reaffirm and codify Runyon’s holding; there was no mention of either Jett or a new right of action. See House Rep. II, at 35-37.

Indeed, conspicuously, Jett is not cited or discussed anywhere in the 1991 Act’s legislative history. See Bolden, 441 F.3d at 1137 (“[0]nly one who never relies on committee reports would fail to be impressed by the total absence in the committee reports of any mention of Jett....”). That silence is striking in light of the numerous other Court decisions mentioned explicitly. We conclude that § 1983 remains “the exclusive federal damages remedy” for § 1981 violations by state actors, Jett, 491 U.S. at 735, 109 S.Ct. 2702, and that the district court correctly entered judgment for the defendants on that basis.

One loose end remains. Buntin purports to sue Alther and McGonagle not only in their official capacities but also in their individual capacities. She has not alleged, however, that they took any relevant actions “outside of the scope of their supervisory roles at the DPW.” Buntin, 209 F.Supp.3d at 371 n.3. We agree with the district court that Buntin’s allegations do not support claims against Alther and McGonagle outside their official capacities. See Oden, 246 F.3d at 464-65 & n.5 (“[W]hen a plaintiff asserts a cause of action under § 1981 for discrimination in the terms and conditions of a municipal employment contract, the proper defendant is the government employer in his official capacity.”); see also Lewis v. Clarke, — U.S. -, 137 S.Ct. 1285, 1291, 197 L.Ed.2d 631 (2017) (distinguishing between official-capacity claims and individual-capacity claims).

IV.

The judgment is affirmed. No costs are awarded.

      . Hixon himself filed charges with the Massachusetts Commission Against Discrimination on December 13, 2013 and on January 11, 2014. Each filing was dismissed as untimely. Buntin I, 813 F.3d at 404 & n.4.

      . While the complaint originally sought an injunction reinstating Hixon in his old job and forbidding Alther and McGonagle from engaging in “discriminatory and retaliatory conduct” against Hixon, Hixon died even before the complaint was filed, and so those claims are moot. See Goodwin v. C.N.J., Inc., 436 F.3d 44, 48-49 (1st Cir. 2006). Only the damages claims remain.

      . See Brown v. Sessoms, 774 F.3d 1016, 1020-21 (D.C. Cir. 2014); Campbell v. Forest Pres. Dist., 752 F.3d 665, 671 (7th Cir. 2014); McGovern v. City of Philadelphia, 554 F.3d 114, 121-22 (3d Cir. 2009); Arendale v. City of Memphis, 519 F.3d 587, 598-99 (6th Cir. 2008); Bolden v. City of Topeka, 441 F.3d 1129, 1137 (10th Cir. 2006); Oden v. Oktibbeha County, 246 F.3d 458, 463-64 (5th Cir. 2001); Butts v. County of Volusia, 222 F.3d 891, 894-95 (11th Cir. 2000); Dennis v. County of Fairfax, 55 F.3d 151, 156 n.l (4th Cir. 1995).

      . The Ninth Circuit nonetheless affirmed dismissal, because the plaintiff had alleged only “that the county 'failed to enforce' state and county bidding requirements,” and not “that this failure ... constituted an official policy or custom of the county.” See African Am. Contractors, 96 F.3d at 1215-16 (applying Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)).

      . The Second Circuit has taken heed of the question but has not answered it to date. See Howard v. City of New York, 602 Fed.Appx. 545, 546 n.1 (2d Cir. 2015) (per curiam) (unpublished summary order); Anderson v. Conboy, 156 F.3d 167, 176 n.17, 178 n.19 (2d Cir. 1998), cert. granted sub nom. United Bhd. of Carpenters & Joiners of Am. v. Anderson, 526 U.S. 1086, 119 S.Ct. 1495, 143 L.Ed.2d 650 (1999), and cert, dismissed, 527 U.S. 1030, 119 S.Ct. 2418, 144 L.Ed.2d 789.

      . We believe that the Ninth Circuit also erred in resolving the § 1981 issue by applying the four-factor inquiry of Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). The Supreme Court has clarified since Cort that whether Congress intended to provide a private right of action—which is one of the Cort factors—is "[t]he central inquiry,” and that the other three factors are entitled to considerably less weight. Touche Ross & Co. v. Redington, 442 U.S. 560, 575-76, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979); see also, e.g., Alexander, 532 U.S. at 286-87, 121 S.Ct. 1511 (“Statutory intent ... is determinative. Without it, a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute.” (citations omitted)); McGovern, 554 F.3d at 118-19 (discussing Alexander and other Supreme Court decisions that have "altered [Cort] virtually beyond recognition” (quoting Wisniewski v. Rodale, Inc., 510 F.3d 294, 299 (3d Cir. 2007))).


source: Caselaw Access Project

author: KAYATTA, Circuit Judge.

license: Public Domain

text:
    Timothy A. DENAULT; Jennifer Testa, Plaintiffs, Appellants/Cross-Appellees, v. Todd AHERN, individually and in his official capacity; Craig Walsh, individually and in his official capacity; Town of Chelmsford, Commonwealth of Massachusetts, Defendants/Third Party Plaintiffs, Appellees/Cross-Appellants, Other Police Officers Presently Unknown, Defendants, v. Christopher’s Emergency Equipment and Towing, Inc., f/d/b/a Christopher’s Towing Service, Third Party Defendant.
    Nos. 15-2423, 15-2438
    United States Court of Appeals, First Circuit.
    May 16, 2017

      Andrew M. Fischer, Boston, MA, with whom Law Offices of Jeffrey S. Glassman LLC was on brief, for appellants/cross-appellees.
    Jeremy Silverfíne, with whom Deidre Brennan Regan and Brody, Hardoon, Perkins & Resten, LLP, Boston, MA, were on brief, for appellees/cross-appellants.
    Before KAYATTA, Circuit Judge, SOUTER, Associate Justice, and SELYA, Circuit Judge.

       Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation.

   KAYATTA, Circuit Judge.

Chelmsford, Massachusetts police officers seized Timothy Denault’s car to search it for evidence, to no avail. Denault nevertheless ended up losing the car, and his ex-girlfriend’s possessions in the car, because accumulated towing and storage fees owed to the city’s towing vendor exceeded the value of the seized property. Denault and his ex-girlfriend, Jennifer Testa, sued, blaming the loss on the police officers’ failure to return the car promptly upon completing the search. A series of rulings before and after trial eliminated all federal and state civil rights claims, including the potential for shifting attorneys’ fees in favor of the prevailing party. Left standing at the end was a judgment on a common law conversion claim against one officer, Todd Ahern, in favor of Denault and Testa in the amounts of $2200 and $25, respectively. Denault and Testa appeal in an effort to revive a civil rights claim that might serve as a basis for an award of attorneys’ fees. Ahern, in turn, asks us to reverse or vacate the judgment against him on the common law conversion claim. For the following reasons, and on an admittedly confusing record, we leave matters as they now stand.

I.

With the plaintiffs arguing that the district court erred in dismissing some claims as a matter of law, and with the defendants arguing that the district court should have dismissed all claims, we review the evidence presented at trial and the inferences supported by that evidence in the light most favorable to the plaintiffs. See White v. N.H. Dep’t of Corr., 221 F.3d 254, 259 (1st Cir. 2000). This means, among other things, that where the testimony at trial was conflicting, we must assume that the jurors believed the plaintiffs’ version unless it was unreasonable to do so.

A.

On October 21, 2013, officers of the Chelmsford Police Department (“CPD”) located a 2000 Nissan Maxima parked in the driveway of a Lowell, Massachusetts home. The car belonged to Denault, the suspect in a crime they were investigating. The home belonged to Testa, Denault’s ex-girlfriend and the mother of his three children.

The officers, including Ahern and Craig Walsh, encountered Testa • at her home. They tried to question her about Denault, who was then in custody. During the exchange, Testa confirmed that she had possession of Denault’s car, the Nissan Maxi-ma. The officers told Testa that they needed to take the car and asked her for the keys. Testa responded that she was running late for a meeting and' did not have time to find the keys.

After Testa drove away in a different car, the officers had Denault’s car towed to the stationhouse by Christopher’s Towing. They impounded the car and secured a warrant to search it. Two days after seizing the car, they executed the warrant with assistance from state forensic scientists. The forensic scientists examined the car for evidence and inventoried its contents, which included one booster seat. A few days later, when the officers determined that the car did not contain evidence pertinent to their investigation, they released it to Christopher’s Towing. CPD officers had no contact with Denault, the registered owner of the car, about either the seizure or the release. When CPD released the car to Christopher’s Towing, CPD officers did not supply, and Christopher’s Towing did not request, contact information for Denault, who had been in custody since before the car was towed. Accordingly, Christopher’s Towing sent no notice to Denault at the time, and Denault was unaware that CPD had released his car to Christopher’s Towing.

Starting on the date the car was towed, and repeatedly thereafter, Testa tried to recover the car and her belongings inside it. She was especially keen to retrieve two children’s booster seats she claimed she had left in the rear of the car. According to Testa, the CPD officers with whom she spoke refused to discuss returning the car or its contents unless Testa agreed to be questioned in connection with the criminal investigation into Denault. Because Testa “didn’t have anything that [she] could tell [the officers] about what happened to [De-nault],” she never went to the stationhouse and eventually stopped calling CPD. When Testa was subpoenaed in connection with the criminal investigation several weeks later in November 2013, she reminded the CPD officers that she still needed her belongings. The officers responded that they had not returned her property because she had declined to speak with them about Denault. The officers never returned Testa’s property, and—according to Tes-ta—they never informed her that they had released the car to Christopher’s Towing.

Testa learned that Christopher’s Towing had possession of the car over three months later, when Denault’s mother showed her a Notice of Abandoned Vehicle sent to Denault’s last known address. The notice, dated February 24, 2014, indicated a lien on the car in the amount of $4797.82 for towing fees, storage costs, and processing services. Testa told Denault, who remained incarcerated, about the notice. Neither Testa nor Denault was able to afford the sum listed on the notice. Accordingly, neither paid it.

Instead, on September 23, 2014, Denault and Testa filed this action against the Town of Chelmsford as well as Walsh and Ahern in their individual and official capacities. The operative complaint seeks recovery under 42 U.S.C. § 1983 for violations of the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution (count I) as well as the Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, § 111 (count II). It further alleges a common law claim that the defendants converted the plaintiffs’ property (count III). The complaint also asserts municipal liability (count VI) with respect to the alleged federal constitutional violations as well as conspiracy (count IV) and aiding and abetting (count V). The complaint seeks compensatory and punitive damages and attorneys’ fees.

B.

After the district court denied the defendants’ motion to dismiss the complaint, the defendants answered and filed a third-party complaint against Christopher’s Towing. The district court ordered the original parties to proceed to trial in June 2015 and scheduled the third-party trial to follow in January 2016. In advance of the first trial, the defendants moved for summary judgment and the plaintiffs cross-moved for partial summary judgment. The district court denied the plaintiffs’ motion and granted the defendants’ motion in part, dismissing claims related to the initial seizure of the car because the seizure “was lawful under the automobile exception to the Fourth Amendment, or if not, the officers enjoy qualified immunity.” During the ensuing trial, the district court granted a motion for directed verdict dismissing all claims against Walsh and the Town of Chelmsford, leaving Ahern as the only defendant. The district court also granted a second motion for directed verdict as to all “substantive and due process claims.” The jury ultimately returned a verdict sheet stating only that “[w]e find for” the plaintiffs, in the amounts of $2200 and $25.

The plaintiffs promptly moved for entry of judgment on the verdict. The district court granted that motion, entering judgment for the plaintiffs on counts I and III of the operative complaint, i.e., a federal constitutional claim and a state law conversion claim for each plaintiff. The plaintiffs then moved for attorneys’ fees under 42 U.S.C. § 1988(b) based on their having prevailed on a federal constitutional claim actionable under 42 U.S.C. § 1988. The defendants opposed that motion and filed a motion for judgment notwithstanding the verdict, or to alter and amend the judgment, or for a new trial.

The district court denied the defendants’ tripartite motion “save that the judgment shall be amended to reflect that the jury verdict entered solely on the conversion count,” which was count III of the operative complaint. Having thus excised count I (the federal claims), the court denied the plaintiffs’ motion for attorneys’ fees because the remaining common law conversion claim furnished no basis for an award of fees under 42 U.S.C. § 1988(b). The district court also entered a separate judgment on the adjudicated claims under Federal Rule of Civil Procedure 54(b) to facilitate an immediate appeal without waiting for trial of the third-party claims.

These timely appeals followed. During their pendency, a stipulation of dismissal resolved the third-party complaint against Christopher’s Towing.

II.

A.

We begin by defining the scope of the plaintiffs’ appeal. A notice of appeal need “designate the judgment, order, or part thereof being appealed.” Fed. R. App. P. 3(c)(1)(B). In a civil case resulting in a final judgment, there are two ways to make this designation. One is to list in the notice each “judgment, order or part thereof’ of which review is sought. This approach, although in strict compliance with the. rule, is perilous. When later preparing the brief and reviewing the record, including transcripts that may not have been available when the notice of appeal was due, counsel may perceive a need or opportunity to raise a challenge that was not apparent at the time of appeal. But if we should find it clear that the object of that challenge was not presciently included in the itemized list of rulings appealed, we will have no jurisdiction to consider the challenge. Santos-Santos v. Torres-Centeno, 842 F.3d 163, 169 (1st Cir. 2016).

The safer course is to take advantage of the fact that all interlocutory rulings in a case “merge in the judgment.” John’s Insulation, Inc, v. L. Addison & Assocs., Inc., 156 F.3d 101, 105 (1st Cir. 1998). Therefore, “it has been uniformly held that a notice of appeal that designates the final judgment encompasses not only that judgment, but also all earlier interlocutory orders.” Id.

The plaintiffs opted for the riskier itemized designation, from which they omitted any challenge to the district court’s summary judgment on their claims challenging the initial seizure of Denault’s car. This was likely not inadvertence, as the plaintiffs’ subsequent designation of the contents of the appendix also excluded materials relevant to that ruling. By the time counsel briefed the appeal, though, he apparently deemed it worthwhile to include a challenge to that ruling. The defendants objected, asserting waiver and thus lack of jurisdiction. The plaintiffs’ reply offered no rejoinder. And the law, as we noted, is clear that where a notice of appeal designates only specific interlocutory orders or parts thereof, it does not provide us with jurisdiction to review others. So we eschew consideration of any argument that the plaintiffs should be entitled to relief from the defendants on account of the initial seizure of the car.

B.

What the plaintiffs did clearly appeal was the manner in which the district court treated the jury verdict in first entering judgment for the plaintiffs on some unspecified federal constitutional claims (count I) as well as the state law conversion claims (count III) and then later amending the judgment to strike count I. The trouble began when the district court ruled on various motions for judgment as a matter of law during the trial. The court never explained exactly what claims it was leaving in and what claims it was throwing out. Adding to this confusion, in its cryptic references to the claims still extant, the district court seemed to use the term “conversion” to describe both counts. The jury verdict form itself added no clarity. It simply asked the jury to check the names of the parties “[w]e find for,” and then to indicate the amount of any damages if the jury found for either plaintiff.

Several strong hints support the plaintiffs’ contention that the district court did in fact submit some claim of a federal constitutional violation to the jury. In addressing the second motion for directed verdict, the district court stated that the motion was “allowed in part as to the substantive and due process claims and denied in part as to the constitutional violation because of the alleged conversion.” The jury instructions themselves repeatedly referred to the United States Constitution and the Bill of Rights. The district court expressly covered the need to determine that a defendant acted under color of law, an element of the federal constitutional claim as actionable under 42 U.S.C. § 1983. Adickes v. S. H. Kress & Co., 398 U.S. 144, 150 & n.4, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). All of this aligns with the fact that when the district court first entered judgment, it expressly did so as to count I as well as count III. And when, over the plaintiffs’ objection, it later reversed course by amending the judgment to apply only to count III, the district court provided no useful explanation.

Ultimately, we need not decide which claims the district court intended to present to the jurors. If count I did not go to the jury, it was only because the district court did, as the defendants claim, grant a directed verdict on the entire count. Alternatively, if count I did go to the jury (as seems most likely), then amending the judgment was nonetheless proper if the count should not have gone to the jury. In such circumstances, the amendment would stand either as a correction of a “manifest error[ ] of law,” 11 Charles Alan Wright et al., Federal Practice and Procedure § 2810.1 (3d ed. 2017), or as harmless error. In short, if there was no evidence sufficient to support a finding for the plaintiffs under count I, then the judgment as amended reads just as it should read. And if there was such evidence, then the plaintiffs’ challenge to the amendment of the judgment should prevail, leaving only the matter of relief. So we turn to the pivotal question: Did the evidence support a verdict on count I for the plaintiffs?

To answer that question, we begin by determining what constitutional claim the plaintiffs would have us find in count I. Their opening brief on appeal advances federal constitutional claims related to the car’s initial seizure and to its subsequent retention and transfer. As we have explained, one point upon which this record is clear is that any claim based on the initial seizure was rejected on summary judgment, and we lack jurisdiction to review that ruling under the narrow notice of appeal the plaintiffs filed. So we consider only the argument that the retention of the seized property, and its transfer to the tow company, violated the United States Constitution.

While the complaint invoked a myriad of constitutional theories, the plaintiffs on appeal ground their federal claim solely in the Fourth Amendment’s protection against unreasonable seizures as applied against the states through the Fourteenth Amendment. Yet the only authority they have cited in their briefs or at oral argument is an out-of-circuit case that contains no discussion of the Fourth Amendment’s restraints on seizures. See Reitz v. County of Bucks, 125 F.3d 139 (3d Cir. 1997). Rather, Reitz determined that “claims based on detention of the property following [a state court order mandating the property’s return] are distinct from those relating to the seizure [of the property].” Id. at 144.

At least three of our sister circuits have expressly rejected Fourth Amendment claims based on a failure to return property after it was lawfully obtained. See Shaul v. Cherry Valley-Springfield Cent. Sch. Dist., 363 F.3d 177, 187 (2d Cir. 2004); Lee v. City of Chicago, 330 F.3d 456, 466 (7th Cir. 2003); Fox v. Van Oosterum, 176 F.3d 342, 351 (6th Cir. 1999). They have reached that conclusion in different ways. The Sixth Circuit focused on the definition of “seizure,” finding that the term has temporal bounds such that it protects only the interest in retaining property and not the interest in regaining it. Fox, 176 F.3d at 349-52. The Seventh Circuit held that applying the Fourth Amendment in these circumstances stretches its protections too far beyond the amendment’s purpose of constraining unlawful intrusions into constitutionally protected areas. Lee, 330 F.3d at 465-66. And the Second Circuit rejected the seizure-includes-retention theory out of hand, writing that “[t]o the extent the Constitution affords [a plaintiff] any right with respect to a government agency’s retention of lawfully seized property, it would appear to be procedural due process.” Shaul, 363 F.3d at 187. The plaintiffs make no effort to address these authorities or explain why the alleged violation of their constitutional rights sounds in the Fourth Amendment.

On such a record, we are offered no reason to disagree with our sister circuits that, to the extent a plaintiff may challenge on federal constitutional grounds the government’s retention of personal property after a lawful initial seizure in circumstances such as these, that challenge sounds in the Fifth Amendment rather than in the Fourth Amendment. A different result may well obtain when the government seizes a person rather than property. See Manuel v. City of Joliet, — U.S. -, 137 S.Ct. 911, 919, 197 L.Ed.2d 312 (2017). But where property is concerned, it would seem that the Fifth Amendment’s express protections for property provide the appropriate framework. In particular, the Takings Clause provides recourse where “private property [is] taken for public use, without just compensation.” U.S. Const, amend. V.

In different circumstances, we might well find that a plaintiffs claims do not necessarily fail merely because the plaintiff wrote “Fourth” rather than “Fifth” in his or her briefs. Here, though, substance followed form, as these plaintiffs never provided the evidence that would be required to support a claim that the defendants violated the Fifth Amendment. Most notably, the plaintiffs do not even claim, let alone prove, that they first sought compensation through state procedures or that “all potential state remedies are ‘unavailable or inadequate,’ ” as required to bring a ripe takings claim in federal court. Deniz v. Municipality of Guaynabo, 285 F.3d 142, 146 (1st Cir. 2002) (quoting Williamson Cty. Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 194, 196-97, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985)).

We therefore find that the evidence did not support a verdict in favor of the plaintiffs on their preserved federal constitutional claims. Accordingly, the district court’s ultimate disposition of the plaintiffs’ federal constitutional claims based on the retention and transfer of the plaintiffs’ property was correct.

III.

In a cross-appeal, Ahern challenges the jury’s verdict as to the state law conversion claims on three grounds. He argues that the jury’s verdict lacked a sufficient evidentiary basis, that the district court erroneously excluded evidence favorable to the defendants, and that the district court improperly charged the jury as to the elements of conversion and the calculation of damages.

A.

Ahern’s challenge to the sufficiency of the evidence rests on the principle that when property belonging to another is lawfully acquired in the first instance, under a good-faith claim of right, the acquirer’s continued retention of the property is not wrongful in the absence of a demand by the owner that the property be returned. See Evergreen Marine Corp. v. Six Consignments of Frozen Scallops, 4 F.3d 90, 95 (1st Cir. 1993). We therefore turn our attention to the evidence to see if such a demand was made, keeping in mind that we “examine the evidence and inferences therefrom in the light most favorable to the plaintiff[s]” and “reverse only if a reasonable person could not have reached the conclusion of the jury.” White, 221 F.3d at 259.

Walsh testified that he had at least two conversations with Testa in the days following the initial seizure. According to Walsh, Testa wanted to retrieve the car and the booster seat. During their first conversation, Walsh told Testa that he was unable to remove items from the car while he was seeking a warrant to search it. In a later conversation within days of the first, he “advised her that when [the police] were complete with the investigation of the vehicle, the car would be brought back to Christopher’s Towing.” Both Walsh and Ahern said that it was standard operating procedure to release a towed car to the tow company. The next month, when Walsh and Ahern spoke with Testa at the Middlesex District Attorney’s Office, Testa told them that she still had not retrieved the ear because “the tow company told her she needed some type of letter ... authorizing her to pick up the vehicle.”

Testa told the jury a different story. According to her testimony, she contacted CPD repeatedly to request the return of the ear and her property inside it. Testa described at least three separate conversations in the days after the car was seized. During each conversation, she was told that the car was not yet ready for pickup. As to the booster seats (she claimed there were two), she testified that a detective told her, “Well, if you come down here and talk with us, maybe we can work something out.” Testa understood that the detective was conditioning his return of the property on her cooperation in the investigation regarding Denault. Per Testa’s account, no one ever told her that the car could not be released to her and would instead be released to Christopher’s Towing. Even when she spoke with the defendants in November, she testified, “they never told [her] that it was at Christopher’s.” Instead, they faulted her for failing to cooperate in their investigation.

Although these accounts share little in common, two key facts are undisputed. First, it was clear to the defendants that Testa sought return of Denault’s car as soon as it became available for pickup. Second, the defendants never contested that the plaintiffs retained a possessory interest in the car and its contents, or that they were entitled to retrieve them. Furthermore, there is ample evidence to find that Testa was acting as Denault’s agent. The defendants argued as much below, referring to Testa as Denault’s “authorized agent.” They, testified that they observed her driving Denault’s car, they took it from her driveway, and they communicated with her about its status. The defendants presented no testimony that anyone at CPD questioned Testa’s authority to retrieve the car. As to the remaining facts, our standard of review requires us to credit Testa’s version, and correspondingly to discredit testimony that Testa knew the car would be released to Christopher’s Towing and communicated with Christopher’s Towing about the car.

On this record, reasonable jurors could certainly find that both Denault (through Testa) and Testa made clear to the officers that they wanted their property back. Ahern is therefore reduced to arguing that the actual demands were made at a time when the police were entitled to retain the car, and not repeated until after the police turned the car over to the tow company. The relevant point, though, is that the plaintiffs made clear to the police that they wanted their property back, and the police thereafter did not make it promptly available to them, even conditionally, after the police were done with it. We see no reason why Massachusetts law would require that the plaintiffs keep repeating their demands.

This is not to say that the police were required to comply with the demands immediately. The perceived evidentiary value of the car, and the warrant that the officers secured to search it, afforded them a privilege to make a qualified refusal. See Restatement (Second) of Torts § 288 (Am. Law Inst. 1965) (“One in the possession of a chattel does not become a converter by making a qualified refusal immediately to surrender the chattel when the circumstances are such that the demand for immediate surrender is unreasonable.”). The problem for Ahern is that he did not surrender the car in accordance with the demand once the search was completed. Ahem does have a reason for this failure: city procedure—and an obligation of the car owner to pay the towing cost—required him to turn the car over to the tow company, which was supposed to contact Denault promptly. In short, Ahern claims an additional and successive basis for making a qualified refusal to return the property. Assuming that the jury believed Tes-ta, however, it could have found that Ahern never told Testa (or Denault) that the police also had a reason not to return the car even when the search was completed. And failure to communicate that reason precludes Ahern from relying on it to avoid liability for declining to return the car. Id. § 241 (“Qualification of a refusal to surrender a chattel to one entitled to immediate possession does not avoid liability for conversion unless ... such reason is communicated to the claimant at the time.... ”); Dan B. Dobbs et al., The Law of Torts § 67 (2d ed. 2016).

We likewise sustain the conversion claim as to the booster seats. There is no dispute that Testa demanded the return of her booster seats. According to Ahern, however, the defendants never refused her demand; instead, they “told her she could retrieve the car seat if she came into the station.” But Testa said that there were strings attached: the defendants refused to return the seats unless she agreed to help with their investigation regarding Denault. The defendants had no privilege to qualify their refusal on that basis and require a quid pro quo. The evidence, viewed in Tes-ta’s favor, therefore supports a verdict for Testa on this conversion claim.

B.

Ahern next argues that the district court incorrectly excluded evidence demonstrating “that notice was given prior to the letter for storage fees in February 2014” and “that the Plaintiffs were offered the car for free and still refused to pick the car up from Christopher’s.” “In reviewing an allegation of evidentiary error, we must consider first whether the district court erred and then whether this error was harmful.” Soto-Lebrón v. Fed. Express Corp., 538 F.3d 45, 65 (1st Cir. 2008). Ahern makes this task difficult by having provided no detailed proffer of the excluded evidence. As best the record reveals, Ahern seems to refer to evidence that (1) the defendants told Testa about the transfer of the car to Christopher’s Towing in October 2013, months before the February 2014 notice; and (2) the owner of Christopher’s Towing contacted plaintiffs’ counsel to discuss terms for return of the car.

With respect to the former evidence, Ahern misconstrues the district court’s ruling. The district court, during a sidebar right before opening statements, heard general descriptions from each party of expected testimony regarding the conversion of the car. The court did not exclude any evidence that the defendants proposed to introduce. Instead, the court accurately identified the key factual dispute as whether the defendants notified Testa by telephone in October 2013 about transferring the car to Christopher’s Towing. The district court said that it would “get the different positions” from the parties about any pertinent communications in that timeframe and then “explain the legal significance” of those positions to the jury. During the trial, when Walsh offered the testimony at issue, there was no objection or exclusion. He told the jury that he informed Testa, within days of the car’s seizure, that the car would be transferred to Christopher’s Towing. We therefore discern no exclusion of evidence and no error.

With respect to the proposed testimony by the owner of Christopher’s Towing, the district court acted within its discretion to exclude communications between the third-party defendant and plaintiffs’ counsel that were reasonably viewed as settlement negotiations. See Fed. R. Evid. 408(a)(1). We thus find no error, much less error that harmed Ahern.

C.

The only remaining arguments relate to the jury charge. Ahern contends that the district court did not properly instruct the jury on the elements of conversion or on damages. As to the instruction on conversion, he argues that the district court’s charge mischaracterized some elements of the claim and omitted others. Although counsel for defendants complained to the district court that its instructions omitted the element of demand and refusal, counsel never objected that the instructions also mischaracterized the elements that were covered. We therefore review these asserted errors under different standards.

As for the allegedly mischaracter-ized elements, because there was no objection, we review only for plain error. See Fed. R. Civ. P. 51(d)(2) (“A court may consider a plain error in the instructions that has not been preserved ... if the error affects substantial rights.”); Estate of Keatinge v. Biddle, 316 F.3d 7, 16 (1st Cir. 2002) (“The party claiming plain error is required to demonstrate ‘(1) that there was error, (2) that it was plain, (3) that it likely altered the outcome, and (4) that it was sufficiently fundamental to threaten the fairness or integrity or public reputation of the judicial proceedings.’ ” (quoting Gray v. Genlyte Grp., Inc., 289 F.3d 128, 134 (1st Cir. 2002))).

Ahern, citing to Damon v. Hukowicz, 964 F.Supp.2d 120 (D. Mass. 2013), argues that the instructions mischaracter-ized the key element of conversion: that “the defendant intentionally and wrongfully exercised control or dominion over the personal property.” Id. at 143 (emphasis omitted) (quoting Evergreen Marine Corp., 4 F.3d at 95). Yet the district court instructed the jury that it needed to determine whether Ahern “exercisefd] wrongful dominion over the vehicle” when he transferred it from the stationhouse to the tow company lot. Ahern complains that this ■instruction was “woefully deficient,” but he does not explain why. We detect no plain error.

As for the preserved objection to the allegedly omitted elements, we generally ask “if 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.” Estate of Keatinge, 316 F.3d at 17. Any error we discern, however, “must be evaluated in the context of the entire charge in light of the circumstances of the particular case.” 9C Arthur R. Miller, Federal Practice and Procedure § 2558 (3d ed. 2017).

’ The district court’s refusal to include the element of demand and refusal in its instruction on the conversion claim is a puzzler. In denying the defendants’ renewed motion for directed verdict, the court acknowledged this element but found that, “drawing all inferences in favor of the plaintiffs, ... Testa’s calls are a sufficient demand.” The court did not, however, discuss refusal. The court then provided an overview of its intended jury charge, explaining that “the focus of [its] charge [would] be on whether ... Ahern sending the vehicle off to the yard was an act of wrongful dominion.” The ultimate instruction on the conversion claim said nothing about demand or refusal. After the district court charged the jury, it consulted counsel about any objections. Defense counsel asked the court to instruct the jury specifically about demand and refusal. The district court responded, ‘You’ve argued that but I’ve said that was too technical and I am not going to so charge.”

Massachusetts law plainly requires proof of demand and refusal when “the defendant legitimately acquired possession of the property under a good-faith claim of right.” Evergreen Marine Corp., 4 F.3d at 95. Assuming that law applies here, we nevertheless find that the omission of demand and refusal from the jury charge was harmless error. “[Q]uite often there will be circumstances in the case from which it clearly will appear that the error in the district court’s instruction cannot have had any prejudicial effect on the jury’s verdict and the error may be treated as harmless.” Miller, supra, § 2558. The jury’s finding on damages shows that this is such a case.

The district court charged the jury on alternative methods of calculating damages—either the value of the car and its contents at the time of the conversion or the cost of regaining possession of the car—and directed the jury to use “the lesser of [the] two different measures.” “We assume the jury listens to and follows the judge’s entire charge.” Arthur D. Little, Inc. v. Dooyang Corp., 147 F.3d 47, 53 (1st Cir. 1998). In light of that assumption, and the jury’s calculation of damages, it is clear that the jury discredited Walsh’s testimony that Testa knew when and where to regain possession of the car in October 2013, at which time Testa could have regained possession for a tiny fraction of the value of the property and of the later bill from Christopher’s Towing. That same testimony by Walsh was the only evidence that created a dispute ,as to whether return of the car was offered or impeded; demand was undisputed by Ahern. Accordingly, we conclude that the district court’s failure to instruct the jury on demand and refusal was harmless error. We emphasize that “[o]ur conclusion is not based on any judgment of our own as to what the evidence proved to have happened,” Parker v. City of Nashua, 76 F.3d 9, 14 (1st Cir. 1996), but rather is based on what the jury unmistakably found.

Ahern also argues that the district court further erred by botching part of its instructions on how to calculate damages, by suggesting that damages were mandatory, and by charging the jury on punitive damages. Counsel for defendants did not object to these portions of the instructions before or after the district court delivered them. At most, our plain error standard of review applies. See Sony BMG Music Entm’t v. Tenenbaum, 660 F.3d 487, 503 (1st Cir. 2011).

As to the instructions on how to calculate damages, Ahern complains that the district court described statutory lien procedures pursuant to which Denault may have owed the tow company. Ahern says that those lien procedures did not apply in this case. Whether that is so we need not decide because Ahern offers no explanation for how the insertion could have harmed him. We reject Ahern’s argument that the district court framed the instructions so as to compel an award of damages. The district court specifically cautioned the jury, “don’t think that because I charge you on this or that aspect of the case that I think anything has been proved or not proved.” It also acknowledged the possibility that the jury would find “there’s no real damage here.” As to punitive damages, Ahem cannot demonstrate an error that affected his substantial rights as the jury declined to award such damages.

Last but not least, Ahern argues that the district court did not inform the parties of its intended instructions before it delivered them. The district court did generally advise the parties of its intended instructions before closing arguments and before charging the jury, see Fed. R. Civ. P. 51(b)(1), though it did not provide a verbatim copy to the parties in advance. While we think it prudent for district courts to write and distribute their intended instructions, the law of this circuit does not require judges to follow this common sense approach. See DeCaro v. Hasbro, Inc., 580 F.3d 55, 65 (1st Cir. 2009).

IV.

Based on the foregoing, we deny both appeals and affirm the district court’s judgment in all respects. The parties shall bear their own costs.

      . The number of booster seats is an issue that the parties no longer contest as material.

      . That court presciently noted that the term may "ha[ve] a different temporal scope when a person rather than property is at issue.” Fox, 176 F.3d at 351. The Supreme Court recently endorsed the theory of continuing seizure of persons. See Manuel v. City of Joliet,-U.S.-, 137 S.Ct. 911, 919, 197 L.Ed.2d 312 (2017) (upholding Fourth Amendment claim where plaintiff was detained for some seven weeks after court found probable cause, based on fabricated evidence, for criminal charge).

      . This conclusion rejecting the plaintiffs' challenge to the dismissal of their federal constitutional claims renders moot their argument on appeal that they should be awarded attorneys' fees under 42 U.S.C. § 1988(b) for having prevailed on such claims. It likewise resolves their appeal related to their municipal liability claims, which require a predicate 'federal constitutional violation. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-92, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Additionally, to the extent the plaintiffs challenge the entry of a directed verdict as to Walsh, that argument is waived due to the lack of any developed legal analysis in the plaintiffs’ submissions on appeal. See Marek v. Rhode Island, 702 F.3d 650, 655 (1st Cir. 2012) (citing United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)).

      . Construing the evidence in the light most favorable to Testa, this conversation occurred after her October 22 conversation with a CPD representative, which was recorded and played to the jury during trial. On the recorded call, the representative informed Testa that the car was not yet ready for pickup but asked, "Did you want to come and pick up the car seat?" Testa declined, explaining that she would "wait 'til a little later.” When Testa called back, however, the detective, according to Testa, was unwilling to return the car seat without receiving her cooperation in, return.

      . Inexplicably, the plaintiffs state in their response and reply brief that "the car did not belong to [Testa] and she was not the agent of Plaintiff Denault.” This stray and unsupported remark is contradicted by the testimony of both plaintiffs that Testa acted as Denault's agent in her efforts to retrieve the car. It is also inconsistent with counsel’s position at oral argument that CPD should have released the car to Testa as “she was there asking for it.” In any event, the defendants say nothing about this remark in their reply brief, instead acknowledging that "Testa did speak with police officers” about retrieving the property but faulting her for failing to "follow through.”


author: BARRON, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. José R. DÍAZ-ROSADO, Defendant, Appellant.
    No. 16-1551
    United States Court of Appeals, First Circuit.
    May 16, 2017

      Richard C. Klugh, Miami, FL, on brief for appellant.
    John A. Mathews II, Assistant United States Attorney, Rosa Emilia Rodriguez-Vélez, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, on brief for appellee.
    Before TORRUELLA, LIPEZ, and BARRON, Circuit Judges.
   BARRON, Circuit Judge.

On August 15, 2013, José Diaz-Rosado (“Diaz”) was indicted in the United States District Court for the Southern District of Florida for his role in planning and organizing a maritime smuggling operation involving over 1,000 kilograms of cocaine. Five days later, Diaz was indicted again— this time, in the United States District Court for the District of Puerto Rico—for his role in planning and organizing a maritime smuggling operation involving over 1,000 kilograms of cocaine. Diaz contends that the Double Jeopardy Clause of the United States Constitution bars his prosecution on the Puerto Rico charges because the Florida charges already encompass the conduct for which he was indicted in Puer-to Rico. For the reasons set forth below, we reject this challenge and affirm the decision of the District Court to deny Diaz’s motion to dismiss the Puerto Rico indictment on double jeopardy grounds.

I.

Because Diaz’s double jeopardy challenge to the Puerto Rico indictment hinges in part on the procedural history of the Florida case, we first need to describe the two indictments and their subsequent travel in some detail. We will then be well positioned to explain why we are unpersuaded that the Puerto Rico indictment must be dismissed on double jeopardy grounds.

A.

On August 6, 2012, federal agents inter"cepted a vessel carrying approximately 1,032 kilograms of cocaine off the coast of Guayama, Puerto Rico. The vessel was registered to Diaz, who had rented a dock for it in Fajardo, Puerto Rico. The government later determined that Diaz also hired the vessel’s two-man crew: Jorge Suárez-Albelo and Joel Perpiña-Quiles. Although Diaz was not on board at the time of its seizure, he and another individual were responsible for following behind the vessel in a separate boat.

Roughly five months later, on December 30, 2012, federal authorities intercepted a second vessel off the coast of St. Croix, United States Virgin Islands—this one carrying approximately 1,157 kilograms of cocaine. This vessel had a different two-man crew: José De León and Wilson Con-cepción. Díaz had purchased this second vessel. He also had directed an associate— who later became a confidential source of the Broward County, Florida, Sherriffs Office—to purchase two outboard motors for it.

The December seizure formed the basis for a one-count indictment filed against Diaz in the United States District Court for the Southern District of Florida on August 15, 2013. Diaz was charged with one count of conspiracy to possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 846 and 841(b)(l)(A)(ii). Diaz pleaded guilty several months later.

During sentencing, the Florida district court relied on both the August and December seizures as evidence that Diaz was responsible for trafficking 2,189 kilograms of cocaine. The Florida district court also applied a four-level sentencing enhancement under § 3Bl.l(a) of the United States Sentencing Guidelines for acting as the organizer or leader of a criminal activity involving five or more participants, and a two-level sentencing enhancement under § 3C1.1 of the Guidelines for obstruction of justice for encouraging the confidential source to lie to government investigators. Diaz was initially sentenced to life in prison.

Five days after Diaz was indicted in Florida, the government filed a two-count indictment against him in the United States District Court for the District of Puerto Rico. Based on the August seizure, the Puerto Rico indictment charged Diaz with one count of conspiracy to import more than five kilograms of cocaine into the United States, in violation of 21 U.S.C. §§ 952, 960, and 963, and one count of conspiracy to possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 846 and 841(b)(l)(A)(ii).

Diaz moved to dismiss the Puerto Rico indictment the same day he entered his plea of guilty in the Florida case. Diaz contended that the conduct charged in the Puerto Rico indictment—in particular, Diaz’s participation in the events leading up to the August seizure—had already been charged in the Florida case and thus that dismissal of the Puerto Rico indictment was required by the Fifth Amendment’s Double Jeopardy Clause.

The District Court did not rule on that motion right away. Instead, the District Court held that motion in abeyance pending the resolution of the Florida proceedings.

With the Puerto Rico case on hold, Diaz pursued an appeal of his sentence in the Florida proceedings to the Eleventh Circuit. In that appeal, he contended, among other things, that the Florida district court erred in applying the four-level leadership enhancement, and in failing to apply a two-level downward adjustment for acceptance of responsibility, pursuant to § 3E1.1 of the Guidelines. United States v. Diaz-Rosado, 615 Fed.Appx. 569, 572 (11th Cir. 2015).

On June 25, 2015, the Eleventh Circuit vacated and remanded the sentence. Id. at 569. That court concluded, first, that “no evidence was provided to support [Diaz’s] leadership role with respect to the four crewmen”—Suárez, Perpiña, De León, and Concepción—and second, that the confidential source could not be “considered a participant.” Id. at 579. On this basis, the Eleventh Circuit then remanded the case to the Florida district court for reconsideration of its decision to apply the leadership enhancement, directing the district court also to reconsider its decision not to apply the downward adjustment for acceptance of responsibility. Id. at 581. Upon remand, Diaz was sentenced on February 18, 2016 to 240 months of imprisonment.

B.

Several days later, the proceedings in the federal district court in Puerto Rico resumed. The District Court referred the motion to dismiss the indictment to a magistrate judge. The Magistrate Judge issued a report and recommendation recommending that the District Court deny Diaz’s motion to dismiss on April 5, 2016.

The Magistrate Judge found as follows. With respect to Count One of the Puerto Rico indictment, the Magistrate Judge first.noted that the offense charged therein was not an offense charged in the Florida case. Accordingly, citing United States v. Ortiz-Alarcon, 917 F.2d 651, 652 (1st Cir. 1990), the Magistrate Judge denied Diaz’s motion to dismiss Count One. The Magistrate Judge explained that the elements of the statute Diaz was charged with violating in that count, 18 U.S.C. § 952, are different from the elements of the statute Diaz was charged with violating in the one-count Florida case and therefore his prosecution on Count One in the Puerto Rico case presented no double jeopardy problem.

With respect to Count Two of the Puer-to Rico indictment, the Magistrate Judge held that the conspiracy for which Diaz was charged in the Puerto Rico indictment was a separate one from the conspiracy for which he was charged in the Florida district court. Applying the five-factor test we laid out in United States v. Laguna-Estela, 394 F.3d 54, 56 (1st Cir. 2005), the Magistrate Judge concluded that three of the Laguna-Estela factors—the time of the activities, the persons involved, and the evidence that would be adduced at trial— favored the government.

First, as to timing, the Magistrate Judge noted that the conspiracy charged in Puer-to Rico “ended in September 2012,” and therefore “covers a different time period than the conspiracy alleged in the Florida indictment, which began in October 2012.” Second, as to personnel, the Magistrate Judge emphasized that the August conspiracy—the one charged in Puerto Rico— involved Suárez and Perpiña, whereas the December conspiracy—the one charged in Florida—involved De León and Concep-ción. Finally, as to evidence, the Magistrate Judge noted that there “were two different drug shipments, involving different time periods and persons,” which “supports a finding that distinct evidence would have to be adduced in order to establish each of the two conspiracies.” “What is more,” the Magistrate Judge held, “because none of the individuals in the December 2012 conspiracy (apart from Diaz) were involved in the alleged August 2012 conspiracy, the government may prove an agreement—the essential component of a conspiracy—between Díaz and the individuals in the August 2012 voyage without resorting to proof of an agreement between Diaz and the individuals involved in the December 2012 voyage.”

The Magistrate Judge, however, held that the remaining two Laguna-Estela factors—the places involved and the fact that the two statutory provisions under which Diaz was charged were the same—did weigh in favor of Diaz. The Magistrate Judge noted that “either the ‘Dominican Republic or Puerto Rico’ were the ’final destination’ for the shipments” charged in both indictments, (citation omitted). And, the Magistrate Judge also noted that Count Two of the Puerto Rico indictment and the one count of the Florida indictment both “alleged violations of the same statutory provisions,” thus tipping the fifth Laguna-Estela factor in Diaz’s direction. But, after weighing these five factors, the Magistrate Judge ultimately concluded that the conspiracies charged in the two indictments were separate ones insofar as the conduct charged in the two indictments involved distinct time periods, personnel, and evidence, and recommended that the District Court deny Diaz’s motion to dismiss Count Two of the Puerto Rico indictment on double jeopardy grounds.

The Magistrate Judge’s report and recommendation informed Diaz that he had fourteen days to file objections. The report and recommendation also notified Diaz that “[f]ailure to file timely and specific objections ... [would constitute] a waiver of the right to appellate review.” Diaz, however, did not file any objections to the report and recommendation. Accordingly, on April 26, 2016, the District Court adopted the Magistrate Judge’s report and recommendation that Diaz’s motion to dismiss be denied and directed that the parties proceed with trial preparation.

Diaz then filed this timely interlocutory appeal. We agree with the parties that we have jurisdiction to hear the appeal pursuant to the Supreme Court’s decision in Abney v. United States, 431 U.S. 651, 661-62, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), which made clear that a “double jeopardy challenge to [an] indictment must be reviewable” before the defendant is to stand trial on that indictment. United States v. Toribio-Lugo, 376 F.3d 33, 37 (1st Cir. 2004) (noting that, while ordinarily a “defendant cannot pursue an immediate appeal from an interlocutory order in a criminal case,” defendants may nevertheless “immediately] appeal[ ] from denials of a motion to dismiss” if the appeal is “premised on colorable double jeopardy grounds”).

II.

As this case comes to us, it appears that Diaz waived his right to bring the challenge he now advances by failing to file objections to the Magistrate Judge’s report and recommendation. See United States v. Lugo Guerrero, 524 F.3d 5, 14 (1st Cir. 2008) (holding that the defendant “waived his right to ... appeal because he failed to object to the recommendation of the magistrate’s report”); see also Thomas v. Arn, 474 U.S. 140, 142, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) (“The question presented is whether a court of appeals may exercise its supervisory powers to establish a rule that the failure to file objections to the magistrate’s report waives the right to appeal the district court’s judgment. We hold that it may.”); Davet v. Maccarone, 973 F.2d 22, 31 (1st Cir. 1992) (“Failure to raise objections to the Report and Recommendation waives the party’s right to review in the district court and those claims not preserved by such objection are precluded on appeal.”).

Diaz contends that his double jeopardy claim is exempt from the ordinary application of these waiver rules because his guilty plea in the Florida case does not now foreclose him from bringing this double jeopardy challenge. It is by no means clear, however, that, under United States v. Broce, 488 U.S. 563, 571, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989), Diaz’s failure to object to the Magistrate Judge’s report and recommendation did not thereby waive his right to bring this challenge. See id. (holding that “when [the defendants] pleaded guilty to two charges of conspiracy on the explicit premise of two agreements which started at different times and embraced separate objectives, they conceded guilt to two separate offenses,” and therefore could not subsequently “challenge the theory of the indictments and ... attempt to show the existence of only one conspiracy”); see also United States v. Stefanidakis, 678 F.3d 96, 99-100 (1st Cir. 2012). Nevertheless, even assuming that Díaz has not waived his right to bring this challenge, we conclude, as we now explain, that this interlocutory appeal fails on the merits.

A.

Diaz purports to challenge both counts of the Puerto Rico indictment on double jeopardy grounds. But, as Diaz does not dispute the District Court’s conclusion that Count One of the Puerto Rico indictment did not present a double jeopardy problem because it charged an offense that was not charged in the Florida case, we affirm and proceed to consider his challenge regarding Count Two of the Puerto Rico indictment.

The government contends that we review the District Court’s ruling under La-guna-Estela for abuse of discretion. See Toribio-Lugo, 376 F.3d at 38 (“The baseline standard of review applicable to a denial of a motion to dismiss on double jeopardy grounds following the declaration of a mistrial is abuse of discretion.”). La-guna-Estela itself, however, seems to have applied a clear-error standard of review, 394 F.3d at 57. That case notwithstanding, we held in United States v. Fornia-Castillo, 408 F.3d 52, 68 (1st Cir. 2005)—decided several months afterwards—that “[t]he availability of double jeopardy protection is a constitutional question reviewable de novo.” Here, because our conclusion holds irrespective of the standard of review, rather than choose among the various standards, we apply the more defendant-friendly standard of de novo review that Diaz contends is applicable. For even on de novo review, we disagree with Diaz that the District Court’s denial of Diaz’s motion to dismiss must be reversed under Lagu-na-Estela.

Diaz first contends that there is a substantial overlap between the evidence at issue in the Florida case and the evidence that would be adduced at trial here, given the “obvious relatedness of the conduct.” For that reason, he argues, the fourth Laguna-Estela factor—whether “the same evidence [would] be used to prove the two conspiracies,” 394 F.3d at 57—favors him, rather than the government, as the District Court concluded. But, Diaz points to no specific facts in the record before the District Court that suggest that the District Court incorrectly applied or weighed this fourth Laguna-Estela factor. And while Diaz also argues that unidentified “principal players” in the two seizures at issue were the same—and thus that the second, personnel-based Laguna-Estela factor also favors him—that assertion, without more, is insufficient to meet his burden of “presenting evidence to establish a prima facie nonfrivolous double jeopardy claim,” Laguna-Estela, 394 F.3d at 56 (quoting United States v. Booth, 673 F.2d 27, 30-31 (1st Cir. 1982)), even if we assume that Diaz preserved this argument below. Accordingly, Diaz provides no basis on which the District Court’s ruling may be reversed under the framework we established in Laguna-Estela.

B.

Diaz does make a number of other arguments in support of his contention that the District Court erroneously denied his motion to dismiss. None have merit.

Diaz argues that, during the sentencing phase of the Florida proceedings, the government itself relied on evidence from the August seizure (the one charged in the Puerto Rico indictment) to demonstrate his responsibility for the December seizure (the one charged in the Florida case), thus making clear that Diaz participated in only one “overarching conspiracy.” But, assuming favorably to Diaz that our review is de novo, we disagree.

The Supreme Court has explicitly rejected the argument “that double jeopardy principles bar a later prosecution or punishment for criminal activity where that activity has been considered at sentencing for a separate crime.” Witte v. United States, 515 U.S. 389, 398, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995). Thus, the fact that the government presented evidence to the Florida district court concerning the seizure for which Diaz was charged in this case does not suffice to show that the crimes charged in the two cases are the same for double jeopardy purposes.

Diaz also contends that the motion to dismiss must be granted based on two aspects of the record that he identifies for the first time on appeal. Specifically, he contends that: (1) the Florida and Puerto Rico indictments were coordinated, and therefore represented the culmination of a “joint investigation” between law enforcement authorities in Florida and Puerto Rico and (2) the government opposed Diaz’s request that his defense in the Florida case be handled by a former federal prosecutor in Puerto Rico because the Puerto Rico case and the Florida case were “essentially the same.” But, Diaz made no reference to these facts in his motion to dismiss before the Magistrate Judge, and he did not object before the District Court to the Magistrate Judge’s report and recommendation. Thus, our review is, at best, for plain error. See United States v. Catalán-Roman, 585 F.3d 453, 472 (1st Cir. 2009), as amended (Dec. 23, 2009) (holding that a double jeopardy claim not raised below is subject to plain error review). Diaz must therefore show that “(1) that an error occurred (2) which was clear or obvious and which not only (3) affected the defendant’s substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings.” Stefanidakis, 678 F.3d at 99 (quoting United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)).

We are, however, hard pressed to see how, taking Diaz’s characterization of the record as true, the fact that the two prosecutions were similar enough to be handled by the same team of prosecutors in and of itself shows that the two conspiracies at issue here are, in fact, one conspiracy under the Double Jeopardy Clause. And Diaz offers no basis on which to conclude that the District Court’s contrary ruling, notwithstanding these facts, was an error, let alone a clear or obvious one. Thus, we reject this challenge, too.

Finally, Diaz points to the Eleventh Circuit’s decision vacating and remanding his sentence in the Florida case as one that requires us to dismiss the indictment on double jeopardy grounds. But the Eleventh Circuit was plainly not, in so ruling, passing on whether the Puerto Rico and Florida cases involved the same conspiracy or different ones. As we have already noted, the Eleventh Circuit merely overruled the Florida district court’s decision to apply a four-level leadership enhancement to Diaz for the conspiracy charged in that case (whatever its scope), and instructed the lower court to reconsider its decision not to apply a two-level downward adjustment for acceptance of responsibility. Diaz-Rosado, 615 Fed.Appx. at 571 (finding “no merit in [Diaz’s] challenge to his conviction,” and “reversing] his sentence and remand[ing] for resentencing”). For this reason, Diaz’s final challenge must also be rejected.

III.

We affirm the judgment of the District Court.

      . We recite these uncontested facts as laid out in the Magistrate Judge's report and recommendation, the pre-sentence report accompanying Diaz's Florida guilty plea, and the prosecutor’s statements at Diaz's change-of-plea hearing.

      . The Eleventh Circuit upheld the Florida district court in two other respects. First, Diaz-Rosado held that the District Court did not plainly err in finding that there was a factual basis for the plea. 615 Fed.Appx. at 573-74. Second, Diaz-Rosado held that the Florida district court adequately explained the charges against 'Díaz and thus did not plainly err during the plea colloquy. Id. at 574-75. On remand, the parties agreed that Diaz was eligible for a two-level downward adjustment pursuant to the so-called "safety-valve” provisions laid out in 18 U.S.C. § 3553(f), and §§ 2Dl.l(b)(17) and 5C1.2 of the Guidelines. In sentencing Díaz a second time, the Florida district court did not apply the four-level leadership enhancement, nor did it apply the two-level downward adjustment for acceptance of responsibility.

      . Because the District Court adopted the unobjected-to Magistrate Judge's report and recommendation, our references to the District Court’s reasoning and conclusions encompass the Magistrate Judge's report and recommendation.

      . Below, Diaz stated the following: "The facts of the Puerto Rico case occur right in the middle of the time frame of the conspiracy of the Southern District case, refer to the same alleged conduct ... and occurred in Puerto Rico. The facts coincide in place, time, geographic area and factual description.” He thus made no reference to any high-level individuals common to both conspiracies.


author: THOMPSON, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Mark J. ZIMNY, Defendant, Appellant.
    No. 15-2144
    United States Court of Appeals, First Circuit.
    Entered: May 16, 2017

      Before, TORRUELLA, THOMPSON, and KAYATTA, Circuit Judges.
   ORDER OF COURT

THOMPSON, Circuit Judge.

After this court remanded this case to the district court to conduct an inquiry into the colorable claim of juror misconduct raised by the defendant, Mark J. Zimny, United States v. Zimny, 846 F.3d 458, 470-72 (1st Cir. 2017), Zimny filed a motion in the district court for release from custody pending appeal under 18 U.S.C. § 3143(b)(1). The district court denied the motion without prejudice, reasoning that, “[ujntil the court conducts further interviews of the other jurors, ... there is insufficient basis at this time to determine whether the investigation will likely result in a reversal or an order for a new trial.” Zimny then filed with this court a motion under Rule 9(b) of the Federal Rules of Appellate Procedure for release from custody pending appeal. The government opposes the motion.

On our “independent review” of the district court’s denial of the motion, see United States v. Bayko, 774 F.2d 516, 520 (1st Cir. 1985), we grant the motion and remand to the district court for determination of the appropriate release conditions. And, because of the dearth of authority addressing motions for release from custody pending appeal in circumstances like those presented by this case, we briefly explain our reasons for granting the motion.

Zimny seeks release from custody pending appeal under § 3143(b)(1). That statute provides that, as a general rule, a person convicted of an offense and sentenced to a term of imprisonment shall be detained pending appeal,

unless the judicial officer finds—
(A) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released under section 3142(b) or (c) of this title; and
(B) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in—
(i) reversal,
(ii) an order for a new trial,
(iii) a sentence that does not include a term of imprisonment, or
(iv) a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process.

18 U.S.C. § 3143(b)(1). “If the judicial officer makes such findings, such judicial officer shall order the release of the person .... ” Id. We conclude that Zimny has met these requirements and is therefore entitled to release pending appeal.

Zimny convincingly argues that he is not a flight risk or danger to the community. Indeed, the government does not contend otherwise. He remained out on bail during trial, and the district court allowed him to self-report to prison following his conviction and the imposition of sentence. Cf. United States v. Weiner, 972 F.2d 337, at *1 (1st Cir.1992) (unpublished decision) (explaining, in a case where the district court found that the defendant posed no risk of flight but made no explicit finding as to dangerousness, that “[wjhile no explicit finding was made as to dangerousness, the fact that defendant was released pending sentence necessarily entailed a finding that he was not likely to pose a danger”). And nothing that has happened in the time that Zimny has been imprisoned changes this calculus. In fact, Zimny has submitted documentation to this court indicating that his security level in prison is “MINIMUM” and his custody level is “OUT,” the second lowest custody level assigned to an inmate. Therefore, Zimny has met his § 3143(b)(1)(A) burden.

We therefore proceed to the requirements imposed by § 3143(b)(1)(B). There is no dispute that “the appeal is not for the purpose of delay.” 18 U.S.C. § 3143(b)(1)(B). With respect to the remainder of that subparagraph, we explained in Bayko that

the provision breaks down into two distinct requirements:
(1) that the appeal raise a substantial question of law or fact [the substantiality prong] and
(2) that if that substantial question is determined favorably to defendant on appeal, that decision is likely to result in reversal or an order for a new trial of all counts on which imprisonment has been imposed [the likelihood prong].

774 F.2d at 522. We are of the opinion that Zimny has met both of these prongs.

1. Zimny has identified a substantial question of fact: whether the alleged juror misconduct occurred. In Bayko, we decided that a substantial question means “a ‘close’ question or one that very well could be decided the other way.” 774 F.2d at 523 (quoting United States v. Giancola, 754 F.2d 898, 901 (11th Cir. 1985)).

Zimny promptly alerted the district court to his colorable allegation of serious juror misconduct. There was nothing else Zimny could have done to develop the record on this factual question without the district court’s assistance. Cf. United States v. Kepreos, 759 F.2d 961, 967 (1st Cir. 1985) (“[Hjenceforth this Circuit prohibits the post-verdict interview of jurors by counsel, litigants or their agents except under the supervision of the district court, and then only in such extraordinary situations as are deemed appropriate.”); see also Bouret-Echevarría v. Caribbean Aviation Maint. Corp., 784 F.3d 37, 48 n.8 (1st Cir. 2015) (“[P]ost-verdict contact with jurors is prohibited in the First Circuit generally.”). Because he came forward with a colorable claim of juror misconduct, an investigation was required. In these circumstances, Zimny has met his burden on the substantiality prong of § 3143(b)(1)(B): He has shown that this question of fact is close enough to warrant some investigation, and this close question cannot be resolved until this investigation takes place. At this juncture, therefore, this question of fact “very well could be decided [either] way.” Bayko, 774 F.2d at 523 (quoting Giancola, 754 F.2d at 901).

We cannot accept the government’s position that it’s too early to tell whether the question is substantial because no investigation has yet taken place. For starters, the government has not identified any authority to support the position that a motion under § 3143 can be denied because the substantiality of the question is not yet ripe. Cf. 18 U.S.C. § 3145(c) (providing that “[a]n appeal from a release or detention order ... shall be determined promptly”). Moreover, even if a motion under §' 3143(b) could be denied as premature as a general matter, that route seems like a poor fit for a case like this one, where the defendant has done everything he can to investigate the factual question, and the only reason that the factual question still persists is because the required investigation has yet to take place.

Moreover, the government’s reliance on portions of the panel’s opinion that noted the undeveloped record is misplaced. Those passages were concerned with a very different question: whether to remand for a new trial at this time. The fact that it might be premature to take the drastic step of reversing Zimny’s conviction and ordering a new trial before the required investigation takes place does not support the government’s position that it is also premature to decide whether Zimny has identified a substantial question of fact. After all, substantiality under § 3143(b) requires only a showing that the question is a close one. At the very least, the question is close enough to require an investigation. Zimny has done all he can do under our case law to develop the record on this question without the court’s assistance, and now all that remains is for that investigation to take place.

2. Zimny has also met his burden on the likelihood prong of § 3143(b)(1)(B). As Bayko demonstrates, analysis of the likelihood prong proceeds on the assumption that the substantial question of law or fact “is determined favorably to defendant on appeal.” 774 F.2d at 522 (framing the likelihood prong as follows: “that if that substantial question is determined favorably to defendant on appeal, that decision is likely to result in reversal or an order for a new trial of all counts on which imprisonment has been imposed” (emphasis added)). Therefore, the question that the likelihood prong poses in this case is not, as the district court stated, “whether the investigation will likely result in a reversal or an order for a new trial.” (Emphasis added.) Instead, we must ask whether a reversal or new trial is likely if the substantial question of fact Zimny has raised—whether the alleged juror misconduct occurred—“is determined favorably to [Zimny].” Id.

Properly understood, the likelihood prong must be resolved in Zimny’s favor. If we assume, as we must under Bayko, that Juror No. 8 was “spouting about” the highly prejudicial blog post and its comments to other jurors “since day one” of trial so much so that the other jurors “told her to stfu” and “got annoyed,” Zimny, 846 F.3d at 464, it is likely—although not inevitable—that this juror misconduct was prejudicial and not harmless, see Bayko, 774 F.2d at 523 (explaining that “the language in the statute which reads ‘likely to result in reversal or an order for a new trial’ is a requirement that the claimed error not be harmless or unprejudicial”), under our juror-misconduct case law.

For these reasons, we conclude that Zimny has met his burden to show entitlement to release from custody pending appeal under § 3143(b)(1). Accordingly, we grant the motion and remand to the district court for determination of the appropriate conditions of release.

It is so ordered.

      . This order assumes familiarity with the above-cited opinion.

      . At the time that the district court denied Zimny’s motion for release, the court was scheduled to conduct the juror interviews on May 23 and 24, 2017. Those dates subsequently were canceled, and, as of the date of this order, new dates for the juror interviews have not yet been selected.

      .That independent review is, of course, "tempered by deference to the district court's firsthand judgment of the situation.” Id. But our standard of review is more rigorous than abuse-of-discretion review. See id. at 519-20.

      . These same standards govern our consideration of Zimny's motion under Rule 9(b). See Fed. R. App. P. 9(c) ("The court must make its decision regarding release in accordance with the applicable provisions of 18 U.S.C. §§ 3142, 3143, and 3145(c).”).

      . In his motion, Zimny characterizes the question as one of law. This seems mistaken; the critical question in this case is whether the alleged juror misconduct occurred, and this is a question of fact.

      . See, e.g., Marshall v. United States, 360 U.S. 310, 311-13, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959) (per curiam) (reversing defendant's conviction and remanding for new trial where jurors were exposed to newspaper articles discussing defendant’s prior convictions and district court had excluded evidence of defendant’s prior convictions); United States v. Bristol-Mártir, 570 F.3d 29, 36-37, 45 (1st Cir. 2009) (vacating defendant’s conviction and remanding for new trial where juror conducted internet research on meaning of words used in federal statute and, during deliberations, had shared her understanding of these words with other jurors); United States v. Rhodes, 556 F.2d 599, 601-02 (1st Cir. 1977) (reversing defendants convictions and remanding for new trial where, during trial, local newspaper ran article about "seriously prejudicial matter” and, on the day the story ran, a reporter saw a juror carrying what appeared to be a newspaper under his arm); United States v. Perrotta, 553 F.2d 247, 249-51 (1st Cir. 1977) (reversing defendant’s conviction and remanding for new trial where, during trial, local evening newspaper ran story about district court’s exclusion of "extremely prejudicial” evidence and district court refused to poll jurors on whether they saw article; court concluded that error was not harmless).