United States v. William Vazquez-Rivera ( 2011 )

United States Court of Appeals
For the First Circuit
No. 10-1930
UNITED STATES OF AMERICA,
Appellee,
v.
WILLIAM VÁZQUEZ-RIVERA,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José A. Fusté, U.S. District Judge]
Before
Torruella, Boudin, and Dyk,*
Circuit Judges.
Martin G. Weinberg, with whom Kimberly Homan, were on brief
for appellant.
Jenifer Y. Hernández-Vega, Assistant United States Attorney,
with whom Rosa Emilia Rodríguez-Vélez, United States Attorney,
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, and Thomas F. Klumper, Assistant United States
Attorney, were on brief for appellee.
December 22, 2011
*
Of the Federal Circuit, sitting by designation.
TORRUELLA, Circuit Judge. William Vázquez-Rivera
("Vázquez") was charged with (1) possession of child pornography in
violation of 18 U.S.C. § 2252(a)(4)(B), (2) three counts of
transportation of child pornography via computer in interstate
and/or foreign commerce in violation of 18 U.S.C. § 2252(a)(1), and
(3) two counts related to use of the internet in order to transfer
obscene matters to an individual the appellant knowingly believed
to be under the age of sixteen in violation of 18 U.S.C. § 1470.1
On February 12, 2010, a jury found Vázquez guilty of all counts
against him. Vázquez now appeals his conviction mainly on the
grounds that the government's conduct and use of improper testimony
at trial warrant the reversal of his conviction. In addition,
Vázquez claims that the district court erroneously refused to admit
parts of an investigative form memorializing portions of an
interview with his son that he alleges contained exculpatory
evidence. Vázquez also argues that the prosecution made improper
remarks during its opening statement and closing argument that
constituted prejudicial plain error. We agree with Vázquez that
the prosecution's case against him at trial extensively relied on
improper testimony. Accordingly, we reverse and vacate Vázquez's
conviction.
1
The indictment against Vázquez also included a forfeiture
allegation under 18 U.S.C. § 2253.
-2-
I. Background and Procedural History
In April 2008, Agents of the Federal Bureau of
Investigation ("FBI") began an operation in which they went online
posing as a Puerto Rican fourteen-year-old girl. Entering
LatinChat.com, a Spanish speaking chatroom, Special Agent Edward
Cabral ("Agent Cabral") and Special Agent Christine Segarra ("Agent
Segarra") went undercover using the screen name "Patsychula14."2
Agent Cabral served in an advisory role, while Agent Segarra
assumed the Patsychula14 identity. On April 16, 2008, Agent
Segarra was online as Patsychula14 when an individual using the
screen name "IncestoPR" initiated an online conversation with her.
IncestoPR inquired about her age -- which Agent Segarra said was
fourteen -- and chatted about subjects including incest and sexual
relationships between adults and minors. IncestoPR eventually gave
Patsychula14 his email address, bienhotpr@hotmail.com,3 and the
chat continued on MSN Messenger, an instant messaging program, with
IncestoPR now communicating with the screen name "Secreto."4
2
The screen name is a combination of "Patsy," the online
persona's nickname, the word "chula," which translates to English
as "sexy" or "cute," and "Patsy's" age -- i.e., fourteen.
3
"Bienhotpr" may be translated as "'very' hot pr," with "pr"
being a likely reference to Puerto Rico.
4
"IncestoPR" translates from Spanish as "IncestPR," with "PR"
again being a likely reference to Puerto Rico. In Spanish,
"Secreto" means "Secret."
-3-
Over the course of the next three months, Secreto
initiated eight chat sessions with Patsychula14. Secreto discussed
sexual themes and sent Patsychula14 pictures depicting child
pornography. During a messaging session on June 5, 2008, Secreto
also sent Patsychula14 a webcam video of a man masturbating, which
Secreto said was himself. In the video, Agent Segarra and Agent
Cabral were able to see a man wearing red flannel pajamas, his
hands and genitalia, and part of the room in the background.
However, the agents were not able to see the man's face.
In a final chat session on July 2, 2008, Patsychula14
asked Secreto if he resided in Camuy, Puerto Rico, which Secreto
then acknowledged. Agent Segarra also asked if Secreto's real name
was "William," to which Secreto responded "no . . . José." Secreto
then ceased all communication.
As part of its investigation, the FBI issued a subpoena
to Microsoft in order to obtain the subscriber information
corresponding to the bienhotpr@hotmail.com email address and
associated internet protocol ("IP") address.5 Armed with the
relevant IP address, agents subpoenaed Liberty Cable, the address's
owner, requesting additional subscriber and account information.
5
"An IP address is the unique address assigned to every machine
on the internet. An IP address consists of four numbers separated
by dots, e.g., 166.132.78.215." In re Pharmatrak, Inc., 329 F.3d
9, 13 n.1 (1st Cir. 2003).
-4-
This subpoena yielded Vázquez's name and an address in Camuy,
Puerto Rico.
On August 22, 2008, FBI agents -- including Agent Cabral
and Agent Segarra -- executed a search warrant on Vázquez's
residence.6 When the agents arrived, Vázquez answered the door
wearing red pajamas which testimony at trial suggested were similar
to those Agent Cabral and Agent Segarra observed in the
masturbation webcam video Secreto had sent Patsychula14. Tile
found in the residence and a chair and filing cabinet found in
Vázquez's office also were similar to those Agent Cabral and Agent
Segarra observed in the webcam video.
Computers seized at Vázquez's residence contained over
one-hundred images of child pornography –- including the two sent
to Patsychula14 –- as well as cartoons relating to incest found in
password-protected subdirectories labeled "William." Forensic
analysis of Vázquez's primary desktop computer showed memory
relating to screen names "Secreto" and "IncestoPR." Two images
found on Vázquez's computer also matched two profile pictures used
during the chats.
Based on this information, a grand jury returned an
indictment charging Vázquez with the above-referenced six counts.
6
This was the second search warrant that the government executed
in connection with this investigation. A few days earlier, FBI
agents executed a search warrant on a residence they mistakenly
identified as belonging to Vázquez.
-5-
Vázquez pled not guilty and a five-day jury trial was held in
February 2010. Agent Cabral and Agent Segarra both testified as
two of the government's five witnesses. Opening the government's
case against Vázquez, Agent Cabral described the steps taken in the
investigation. The government then called Microsoft and Liberty
Cable custodians, who testified on the subscriber information and
company records the government used to obtain a search warrant for
Vázquez's residence. As the fourth government witness, Agent
Segarra then described the online sting operation in greater detail
and read transcripts of several chats she had with the individual
using the Secreto and IncestoPR screen names. As the final
government witness, Agent Hesz Rivera, the FBI forensic examiner
who reviewed the seized computers, offered testimony regarding his
findings. Among other evidence, the jury was allowed to see the
online conversations between Agent Segarra and Secreto, relevant
child pornography images, and the webcam video of the masturbation
incident.
The defense focused its efforts on trying to show that
the prosecution could not conclusively link Vázquez to the chats
and contended that the government could not prove Vázquez knew the
home computers contained child pornography. On direct, Vázquez's
wife offered testimony explaining that all four family members
-6-
residing in the home had access to the seized computers,7 including
the desktop computer containing the pictures sent to Patsychula14.
Vázquez's wife also testified that a housekeeper had keys to the
residence and that her children and her grandchildren -- including
a nineteen-year-old male named Mario and two older adult males
named José and Luis -- could access the home, even in the family's
absence. During cross-examination of Agent Cabral, counsel also
presented evidence that various IP addresses were used to access
the email account used to communicate with the Patsychula14 decoy,
one of them registered to an owner by the name of José Acevedo.
Agent Cabral testified that the government did not investigate
these addresses.
On February 12, 2010, the jury returned a verdict finding
Vázquez guilty as to all counts of the indictment. This timely
appeal followed.
II. Discussion
Vázquez challenges his conviction on several grounds.
Vázquez's primary contention is that the district court erred when
it admitted much of Agent Segarra's testimony, which Vázquez
alleges was improper, and impermissible opinion regarding his
guilt. Vázquez also contends that the district court erred when it
did not admit portions of an FBI form related to an interview with
7
Vázquez resided with his wife, his sixteen-year-old son, and his
ten-year-old daughter.
-7-
Vázquez's son. Finally, Vázquez claims that statements made during
the prosecution's opening and closing remarks were improper and
amounted to plain error. Because we agree with Vázquez that a
troublingly large amount of Agent Segarra's testimony was improper,
we reverse on those grounds and do not find it necessary to address
his other claims. As we must, we consider the facts in the light
most favorable to the verdict. United States v. Stevens, 640 F.3d
48, 49 (1st Cir. 2011).
A. Improper Overview Testimony
Vázquez argues, based on several of our recent cases,
that much of Agent Segarra's testimony amounted to improper
overview testimony. See, e.g., United States v. Meises, 645 F.3d
5 (1st Cir. 2011); United States v. Flores-de-Jesús, 569 F.3d 8
(1st Cir. 2009); United States v. Casas, 356 F.3d 104 (1st Cir.
2004). The problematic form of this testimony consists of
declarations by a witness -- commonly a law enforcement officer
involved in the investigation at issue -- presented early during
trial to describe the government's general theory of the case. See
Meises, 645 F.3d at 14 n.13 (noting such evidence "often provides
an anticipatory summary of the prosecution's case by previewing the
testimony of other witnesses"). We have denounced the use of this
kind of testimony "in which a government witness testifies about
the results of a criminal investigation, usually including aspects
of the investigation the witness did not participate in, before the
-8-
government has presented evidence." United States v. Rosado-Pérez,
605 F.3d 48, 55 (1st Cir. 2010). In doing so, we have noted that
the problems inherent in such testimony are patently clear "if the
evidence promised by the overview witness never materializes," but
have warned that even if the substance of the witness's preview is
later corroborated during trial, the overview testimony of a law
enforcement agent still represents a problematic "endorsement of
the veracity of the testimony that will follow." Flores-de-Jesús,
569 F.3d at 18; see also id. at 17-19 (discussing this "imprimatur
problem" at length).8
While our decision today in no way detracts from our
prior admonishments regarding overview testimony, we believe that
8
Our cases have not, however, foreclosed the use of overviews
entirely. Subject to the overarching precept that lay witness
testimony should be grounded on personal knowledge, we have
acknowledged "[t]here may be value in having a case agent describe
the course of his investigation in order to set the stage for the
testimony to come . . . ." Flores-de-Jesús, 569 F.3d at 19. We
have also recognized that "if properly limited to constructing the
sequence of events in [an] investigation," an agent's testimony
"could be valuable to provide background information and to explain
how and why the agents even came to be involved with the particular
defendant." Id. (citations and quotation marks omitted). Finally,
our cases have also recognized that the complexity of a given case
may play a role in helping to determine whether such descriptive
testimony is appropriate. Id. (citing case involving money
laundering and tax evasion charges to note "we have explicitly
distinguished between the kind of 'overview' testimony that we
[have criticized]" and an IRS agent's testimony proffered as a
"'description of his investigation' into the defendant's
activities, which [was] based on personal knowledge" (citing United
States v. Hall, 434 F.3d 42, 57 (1st Cir. 2006))); see also Hall,
434 F.3d at 57 ("summary testimony" introduced towards the end of
trial "permissible to summarize complex aspects of a case").
-9-
the trial declarations at issue here can be distinguished from the
ones we considered problematic in those cases. In the instant
case, Agent Segarra took the stand as the government's penultimate
witness on the first day of a five-day trial and, as such, did not
"preview" the government's case. See United States v. Hall, 434
F.3d 42, 56-57 (1st Cir. 2006) (noting appellant's reliance on
cases discussing overview testimony "misplaced" where testimony in
question proffered "near the end of the government's case-in-
chief"). However, as we now explain, we still find that much of
Agent Segarra's testimony bore distinct and serious deficiencies
and should not have reached the jury.
B. Agent Segarra's Improper Testimony
Vázquez challenges six specific portions of Agent
Segarra's testimony. Where counsel properly objected to and
preserved testimony for appellate review, we usually review for
abuse of discretion. Hall, 434 F.3d at 56-57. However, because
defense counsel did not object to, or otherwise failed to preserve,
much of the testimony on which Vázquez now bases his appeal, we
review most of the challenged portions of Agent Segarra's testimony
only for plain error. United States v. Flemmi, 402 F.3d 79, 86
(1st Cir. 2005). Where we review for plain error, we ascertain
whether "(1) an error occurred (2) which was clear or obvious and
which not only (3) affected [] substantial rights, but also (4)
seriously impaired the fairness, integrity, or public reputation of
-10-
judicial proceedings." Id. (quoting United States v. Duarte, 246
F.3d 56, 60 (1st Cir. 2001) (alterations omitted)).
1. Initial Identification Testimony
Shortly after Agent Segarra took the stand during the
first day of trial, the prosecution asked her, with regards to the
investigation, whom the investigation identified as the individual
using the screen name "IncestoPR." Agent Segarra responded: "We
ended up identifying him as William Vazquez Rivera." At the
prosecution's request, Agent Segarra proceeded to describe the
conversations that she had with IncestoPR while posing as a
fourteen-year-old girl using the screen name Patsychula14.
Although the defense did not object to these statements
at trial, Vázquez now claims that this testimony was admitted in
error. We agree. By identifying Vázquez as IncestoPR, the person
who "approached" Agent Segarra's online avatar and continued to
chat with her using the Secreto screen name, Agent Segarra
addressed the ultimate issue before the jury: whether the conduct
the government observed on its end of the computer screen could be
imputed to Vázquez. Because the government agents conducting the
investigation that led to Vázquez's arrest did not directly observe
the individual chatting with Agent Segarra, Vázquez's fate depended
on whether the government could prove to the jury beyond a
reasonable doubt that the evidence it had against him -- most of
-11-
which was circumstantial in nature9 -- placed him at the other end
of these online conversations. While ultimate issue opinions are
not always prohibited, lay testimony of this nature must comport
with the requirement that proffered testimony be helpful to the
jury. See Fed. R. Evid. 701(b); see also United States v. García,
413 F.3d 201, 214 (2d Cir. 2005) ("If such broadly based opinion
testimony as to culpability were admissible under Rule 701, 'there
would be no need for the trial jury to review personally any
evidence at all.'" (quoting United States v. Grinage, 390 F.3d 746,
750 (2d Cir. 2004)). On these facts, we are compelled to reaffirm
our warning that lay opinions going to the ultimate issue will
rarely meet this requirement, "since the jury's opinion is as good
as the witness's." United States v. Sanabria, 645 F.3d 505, 516
(1st Cir. 2011)(quoting Mitroff v. Xomox Corp., 797 F.2d 271, 276
(6th Cir. 1986)).
Agent Segarra's testimony was also improper because her
statements were based in large part on the overall investigation
rather than her personal observations. See Fed. R. Evid. 602,
701(a); see also Rosado-Pérez, 605 F.3d at 55 (noting "basic
principle in the Federal Rules of Evidence that witnesses, other
9
At oral argument, the government correctly acknowledged that the
only piece of direct evidence introduced in the prosecution's case
against Vázquez came when Agent Segarra testified about what she
observed in the webcam video of the masturbation incident. As we
explain below, however, while portions of this testimony were
proper, we find that much of it amounted to improper identification
evidence not grounded in personal knowledge.
-12-
than experts giving expert opinions, should testify from personal
knowledge"). Despite being closely involved in all aspects of the
underlying investigation, Agent Segarra never personally observed
Vázquez chatting on the seized computers on the mentioned dates,
nor, for example, was her testimony based on surveillance of the
premises that would place Vázquez inside the residence with the
computer at the time the chats occurred. Cf. Rosado-Pérez, 605
F.3d at 55-56 (concluding testimony proper where investigator
witness "went to [drug point] at least fifty times; and repeatedly
participated in video and personal surveillance, wiretap
surveillance, and controlled drug buys").
The only opportunity Agent Segarra had to directly
observe conduct at issue in Vázquez's trial came during the chat
she had with Secreto on June 5, 2008. During that online
conversation, Agent Segarra was able to observe the webcam video
that Secreto sent and discerned an adult male masturbating.
According to her later testimony, however, Agent Segarra was only
able to see the man's hands and genitals, as well as the red
pajamas he wore and parts of the room in the background. At no
point did Agent Segarra see the man's face, hear the man speak, or
otherwise observe distinguishing marks on the man's body.10 Even
10
At trial, the prosecution requested and received permission to
photograph Vázquez's "genital area and hands" for the purpose of
comparing any resulting pictures with the webcam video of the
masturbation incident. For reasons the record does not reveal, the
prosecution opted not to use these images.
-13-
if that limited opportunity for personal observation would support
an identification of Vázquez as the individual in the video, her
purported identification was largely based on other evidence that
could not support such an identification based on personal
knowledge. Here, we cannot say that Agent Segarra's identification
testimony was "rationally based on the witness's perception" as the
evidentiary rules command. Fed. R. Evid. 701(a).
We pause to highlight a related concern that will
unfortunately surface again in our discussion infra. In responding
to the prosecutor's questions in the manner she did -- i.e., "we
ended up identifying [the subject] as William Vazquez Rivera" --
Agent Segarra implied that her comments expressed the combined
opinion of both her and other unidentified officers, based on the
totality of similarly-unidentified information gathered over the
course of the investigation, that the defendant on trial was the
person who sent the illicit material and was therefore guilty. We
stress our disapproval of such testimony at trial and agree with
the Second Circuit, writing in United States v. García, that:
[W]hen an agent relies on the "entirety" or
"totality" of information gathered in an
investigation to offer a "lay opinion" as to a
person's culpable role in a charged crime, he
is not presenting the jury with the unique
insights of [a witness's] personal
perceptions. Thus, in such circumstances, the
investigatory results reviewed by the agent --
if admissible -- can only be presented to the
jury for it to reach its own conclusion.
-14-
413 F.3d 201, 212 (2d Cir. 2005) (internal citation omitted). The
situation is all the more worrisome where, as here, an agent's
testimony appears to at least partly rest on the collective insight
of other unknown investigators who may not themselves be present at
trial. While such a composite perspective is permissible in other
non-trial contexts,11 those circumstances are not delimited by the
trial-applicable Rule 701 requirement that lay opinion be based on
personal perceptions.12 See id. at 213; see also United States v.
Dukagjini, 326 F.3d 45, 54 (2d Cir. 2003) ("As the testimony of [a]
case agent moves . . . to providing an overall conclusion of
criminal conduct, the process tends to more closely resemble the
11
See, e.g., United States v. Lamela, 942 F.2d 100, 104 n.5 (1st
Cir. 1991) (noting it is common in grand jury context for
government "to present an overview of the criminal investigation
through the testimony of the case agent, rather than through the
testimony of [] investigating officers").
12
Referring to Agent Segarra's repeated use of the plural "we"
when speaking about the government's investigation and its results,
the government concedes that Agent Segarra "could have used a
better term." Nevertheless, the government posits that Agent
Segarra's articulation in the plural was proper, as it accounted
for the fact that Agent Segarra conducted the investigation in
conjunction with Agent Cabral, who had already testified as a
government witness. While plausible, the government's ex-post-
facto rationalization of Agent Segarra's use of the plural form is
unavailing. If Agent Segarra meant to allude to Agent Cabral or
his views in her testimony, this should have been made clear at
trial. Neither here nor in the exchanges we examine below did the
questioning Assistant U.S. Attorney seek to clarify this point
before the jury. Thus, when Agent Segarra represented that "we
concluded 'X'," she invoked the opinions of an unknown number of
additional agents without explaining what those opinions were or,
for that matter, whether they were grounded on personal perceptions
or on evidence before the jury.
-15-
grand jury practice, improper at trial, of a single agent simply
summarizing an investigation by other that is not part of the
record.").
2. Identification Testimony on Second Day of Trial
During the course of the first and second days of trial,
Agent Segarra described the chats that she, posing as Patsychula14,
had with the individual using the screen name Secreto on the MSN
Messenger platform. Agent Segarra's testimony during the second
day of trial focused on conversations she had with Secreto over the
course of several days during the spring of 2008. Reading from
chat transcripts at the prosecution's behest, Agent Segarra
narrated conversations of a strong sexual nature in which Secreto
repeatedly alluded to incest and sexual acts between adults and
children, sent several images containing child pornography, and
incited Patsychula14 to engage in sexual conversations over the
phone.
After Agent Segarra read to the jury the text of chats
between Patsychula14 and the individual named Secreto on April 28,
2008, May 20, 2008, May 22, 2008, May 27, 2008, and May 29, 2008,
the prosecution sought to clarify that the person using the Secreto
screen name on MSN Messenger was also behind the
bienhotpr@hotmail.com email account and the IncestoPR screen name
used in the LatinChat.com chat room. At this point, the following
exchange between the prosecutor and Agent Segarra took place:
-16-
Q: And just to make -- to clarify, IncestoPR
is the same person as Secreto, correct?
A: Correct.
Q: And Secreto is the same person at
Bienhotpr@hotmail.com?
A: Correct.
Q: And throughout your investigation, who did
you identify that person to be?
. . . .
A: We identified him as William Vazquez-
Rivera.
Counsel objected during this exchange on grounds that the
question had already been answered several times, but the district
court allowed the testimony, noting Agent Segarra could be cross-
examined on these statements. Because Vázquez now challenges this
testimony on grounds that it was improper, we review for plain
error. See United States v. Ríos-Hernández, 645 F.3d 456, 462 (1st
Cir. 2011) (concluding appellant's "argument in the district court
is sufficiently different from the one raised on appeal that the
argument is forfeited and will be reviewed for plain error").
This testimony should not have reached the jury. Again,
Agent Segarra's statements bear many of the deficiencies we have
already discussed. Firstly, Agent Segarra's declaration that
Vázquez was identified as the person with whom she conversed as
Patsychula14 "throughout the investigation" expressed conclusions
about Vázquez's culpability, thus implicating the ultimate issue-
-17-
variety Rule 701 concerns noted above. Second, Agent Segarra's
testimony did not evince whether this identification was based on
evidence or testimony before the jury and appeared to subsume the
perceptions or insights of other agents into her testimony. See
Casas, 356 F.3d at 119.
3. Testimony Related to Webcam Incident
During the second day of trial, Agent Segarra described
another chat session between Patsychula14 and Secreto that took
place on the morning of June 5, 2008. It was during this chat that
Secreto sent Patsychula14 an invite to view a webcam video. Agent
Segarra testified that after she accepted the invite as
Patsychula14, she could observe an adult male masturbating. Agent
Segarra also testified that she could observe "a five-star chair
and a floor. . . . part of a desk, a desk top drawer, and a file
drawer" that were later identified when federal agents executed the
search warrant on Vázquez's home. This testimony was proper.
The prosecution then asked Agent Segarra why these
observations were important. Over the defense's objections on
grounds that the importance of this testimony was the jury's
province, Agent Segarra responded:
It was very important, because it helped us
identify that this is where William Vazquez –-
this office where William Vazquez utilized
[sic] to send the video and other child
pornography pictures in the search
warrant. . . .
In the office we noticed there was a [sic]
same chair, and we also compared the pictures
-18-
of the search warrant with the video . . . .
And that also helped us identify William
Vazquez-Rivera.
The prosecution then showed the video. Agent Segarra
testified that in part of the video, it was possible to see an
"individual [] wearing red flannel pajamas, which were exactly the
same flannel pajamas that William Vazquez-Rivera was wearing the
day that we arrived at his residence to conduct the search
warrant."
Because defense counsel did not object to this testimony
on the Rule 701 and overview grounds it now raises on appeal, we
review for plain error. United States v. Capozzi, 486 F.3d 711,
718 (1st Cir. 2007).
We conclude that this testimony was plainly improper.
First, as before, Agent Segarra's testimony was not limited to
opinion that soundly followed from her perceptions. Second, Agent
Segarra's statement also summarized the investigation without
indicating that her testimony was based on evidence before the
jury. Crucially, because the determination of whether Vázquez was
the man in the webcam video could have been properly reached only
by considering evidence available to the jury, Agent Segarra's
testimony also usurped the jury's role instead of being helpful to
it. See 4 J. Weinstein & M. Berger, Weinstein's Federal Evidence
§ 701.05 (Joseph M. McLaughlin, ed., Matthew Bender 2d ed. 2011)
(testimony, the "sole function" of which is "to answer the same
-19-
question that the trier of fact is to consider in its
deliberations. . . . [m]ay be excluded as unhelpful").
In its brief, the government highlights the fact that
Agent Segarra was part of the group of agents that executed the
search warrant on Vázquez's residence and observed Vázquez wearing
"the same red flannel pajamas as in the masturbation incident."
The government also notes that Agent Segarra was able to observe
items and parts of Vázquez's residence that appeared similar to
those that could be seen in the video. Based on these
observations, the government reasons that Agent Segarra's
identification statements were based on her personal knowledge.
Here, the government misses the point. Even if Agent
Segarra had some basis for personal observation, her testimony
clearly relied heavily on the overall investigation and the
conclusions reached by other agents. It was the prosecution's
burden to lay a foundation that established the basis of Agent
Segarra's knowledge or opinion in connection with all of her
testimony. See Fed. R. Evid. 602, 701; see also Rosado-Pérez, 605
F.3d at 55 ("A foundation should be laid establishing the basis of
a witness's knowledge, opinion, or expertise."). While the
prosecution appears to have laid an acceptable foundation for Agent
Segarra to testify about the steps taken in the investigation, the
online chats she had with the individual using the screen names
IncestoPR and Secreto, and the items, events, and clothing she
-20-
observed while she executed the search warrant on Vázquez's home,
Agent Segarra's testimony as to Vázquez's identity, based on the
investigation as a whole, was clearly improper.
4. Testimony Related to Seizure of Desktop Computer
After Agent Segarra described the evidence collected at
Vázquez's home, the prosecution inquired about the purpose of
seizing Vázquez's desktop computer. Agent Segarra stated that
"[t]he purpose was to corroborate all the information that we
previously had from all the chats, and all the information we had
obtained from William Vazquez-Rivera."
The prosecution then asked Agent Segarra if the seizure
of Vázquez's desktop computer achieved the described purpose, to
which the defense objected on hearsay grounds. The trial judge
overruled the defense's objection, and the prosecution was allowed
to restate the question, now asking Agent Segarra whether, in her
opinion, the purpose of the seizure had been achieved. Once again,
the defense objected, now noting that Agent Segarra's opinion did
not constitute admissible evidence. At the court's behest, the
prosecution rephrased its question and Agent Segarra testified that
the government achieved the seizure's intended purpose, at least in
part because forensic analysis of the seized computer yielded two
of the child pornography images transmitted during the chat
sessions.
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To the extent Agent Segarra testified about the results
of the government's forensic analysis on the seized computers, it
appears she relied on information provided to her by FBI Agent and
computer analyst Hesz Rivera and thus predicated her statements on
hearsay. However, because Agent Rivera's later testimony
corroborated Agent Segarra's statements regarding forensic analysis
results, we conclude that any hearsay problem here was harmless
under review for either plain error or abuse of discretion. See
United States v. Piper, 298 F.3d 47, 58 (1st Cir. 2002)
("Cumulative evidence is typically regarded as harmless . . . .").
5. Later Identification Testimony Related to Webcam
Video
When Agent Segarra began to describe the video containing
the masturbation incident to the jury, the prosecution asked her:
"And throughout your investigation, do you identify who [the male
in the video] was?" Agent Segarra answered: "Yes. We identified
that person to be William Vazquez-Rivera."
This testimony was admitted in error. Without a doubt,
it purports to present Agent Segarra's opinion regarding Vázquez's
culpability based on the whole of the government's investigation
and, by relying on the plural "we," improperly alludes to unnamed
investigators' views without explaining what those were or whether
they were based upon the record in evidence or these investigators'
perceptions. See García, 413 F.3d at 211.
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6. Prosecution's Redirect Examination of Agent Segarra
Lastly, Vázquez alleges that a substantial portion of
Agent Segarra's testimony during redirect examination amounts to
plain error. Specifically, Vázquez takes issue with the
prosecution's questioning regarding each online chat session
mentioned in Agent Segarra's testimony. This back-and-forth
between the prosecution and its witness went as follows:
Q: Now, as of today, after having conducted
the investigation, after having received all
the information and having executed the search
warrant, can you identify the person that you
were chatting with on April 16 of 2008?
A: Correct, with all the evidence we have
gathered from the investigation, yes.
Q: Who is that person?
A: The person is William Vazquez-Rivera.
Q: And on April 28, 2008.
A: No.
Q: Can you identify the person you were
chatting with as of today?
A: Correct. If he is the holder of that IP
address for Bienhotpr, yes, we could identify
him back then.
Q: And who is that?
A: William Vazquez-Rivera.
Q: And as of today, after gathering all the
information and identifying the information,
can you identify who you were chatting with on
May 20, 2008?
A: Yes.
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Q: Who is that person?
A: William Vazquez-Rivera.
Q: And on May 22, 2008?
A: Correct, William Vazquez-Rivera.
Q: And May 27, 2008?
A: Yes, William Vazquez-Rivera.
Q: And May 29, 2008?
A: Yes, William Vazquez-Rivera.
Q: And May 30, 2008?
A: Yes, William Vazquez-Rivera.
Q: And on June 5, 2008?
A: Yes, William Vazquez-Rivera.
Q: And on that specific date, did you see any
visual of William Vazquez-Rivera?
A: Yes, I did.
Q: What visual was that?
A: I saw him masturbating via webcam, and we
also saw the pajamas we were able to identify
the day of the search warrant.
Q: And on July 2nd, 2008, were you able to
identify as of today who you were chatting
with on that date?
A: Yes, William Vazquez-Rivera.
All told, during this exchange, Agent Segarra mentioned the
defendant's name nine times, repeatedly identifying him as the
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individual responsible for the offending conduct –- the primary
issue disputed by Vázquez's defense at trial.
This testimony is rife with the Rule 701-related dangers
we have already discussed at length above and in other prior cases.
Agent Segarra's statements here again run afoul of Rule 701's
demand that lay opinion testimony be "helpful to a clear
understanding of the witness' testimony or the determination of a
fact at issue." Fed. R. Evid. 701(b). We have explained that
"[t]he nub of [Rule 701(b)'s] requirement is to exclude testimony
where the witness is no better suited than the jury to make the
judgment at issue, providing assurance against the admission of
opinions which would merely tell the jury what result to reach."
Meises, 645 F.3d at 16 (internal citations and quotation marks
omitted); see also Lynch v. City of Boston, 180 F.3d 1, 17 (1st
Cir. 1999). Moreover, as should be clear by now, Agent Segarra
improperly relied on far more than her personal observations or
evidence already before the jury.
C. Whether Improper Testimony Prejudiced Vázquez
Having concluded that much of the challenged testimony
constituted obvious error, we must now assess whether Vázquez can
"surmount the high hurdle of plain error review and show that the
improper remarks affected the outcome of the trial." United States
v. (Feliciano)-Rodríguez, 525 F.3d 85, 96 (1st Cir. 2008). This
inquiry is "substantially similar" to the standard we follow in
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harmless error analysis, with the added wrinkle that "the
petitioner, not the government, 'bears the burden of persuasion
with respect to prejudice.'" Ramírez-Burgos v. United States, 313
F.3d 23, 29 (1st Cir. 2002) (quoting United States v. Olano, 507
U.S. 725, 734 (1993)). Surveying the government's case against
Vázquez, we must conclude that, in this case, wrongly-admitted
testimony disturbed the appellant's substantial rights.
Undercover investigations in which agents posing as
minors "visit" a chat room or other online location where suspected
child predators convene have become a common tool to detect
individuals who would deign to engage in the reprehensible conduct
that child pornography laws proscribe. See, e.g., United States v.
Sims, 428 F.3d 945, 950 (10th Cir. 2005); United States v.
Chriswell, 401 F.3d 459, 460 (6th Cir. 2005); United States v.
Cherian, 58 Fed. Appx. 596, *1 (5th Cir. 2003). Because much of
the transgressive acts these investigations target are carried out
in private while the offender sits at a computer terminal, even
when agents are able to zero in on a suspect -- e.g., by matching
an internet account on record or an IP address with an account
holder's residential or physical address -- it may not always be
clear that he or she is actually responsible for the conduct that
agents observed on their screens. As the instant case suggests,
when the subject of the investigation communicates at all times
through an online alias or "screen name" and other persons have
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access to the computer used to communicate with undercover law
enforcement agents, it becomes all the more necessary for the
investigation to collect evidence, direct or circumstantial, that
will link the prohibited conduct to the defendant beyond a jury's
reasonable doubt.
Here, the issue of identification was everything at
trial. When the prosecution started its case against Vázquez it
was beyond cavil that, hiding behind the screen names "Secreto" and
"IncestoPR," someone discussed topics of a strong sexual nature
with and sent images containing child pornography to Patsychula14,
a decoy fourteen-year-old girl. It was similarly clear that during
one of those chats, Secreto invited Agent Segarra, posing as
Patsychula14, to view a webcam video depicting an adult male
masturbating. What the prosecution had to prove to the jury beyond
a reasonable doubt, however, was that the evidence the government
collected supported its theory that Vázquez was behind this
conduct. Correspondingly, defense counsel undertook a strategy
designed to cast a shadow of doubt over the prosecution's claim
that Vázquez was culpable. Prompted by counsel, Vázquez's wife
testified that others -- including, notably, other adult males --
had access to Vázquez's home and the seized computers during the
period the chats took place. Pressed on cross-examination, the
agent supervising the investigation also acknowledged that the
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government did not investigate several IP addresses from which the
email account that corresponded with Patsychula14 was accessed.
The jury was free to give these attempts to undermine the
prosecution's case as much credit as it desired. Although the case
against Vázquez was largely based on circumstantial evidence, the
jury was also free to assign the evidence against him as much
weight as it considered appropriate. See United States v. Gamache,
156 F.3d 1, 8 (1st Cir. 1998) ("[C]ircumstantial evidence, if it
meets all the other criteria of admissibility, is just as
appropriate as direct evidence and is entitled to be given whatever
weight the jury deems it should be given . . . ."). Our concern,
however, is that the prosecution's repeated and extensive use of
improper testimony may have influenced the jury at the likely
expense of Vázquez's efforts to mount an adequate defense. Because
we do not find that the evidence against Vázquez was sufficiently
compelling to assuage this concern, we conclude it is highly
probable that the errors here affected the jury's verdict and find
that they unfairly impaired the integrity of Vázquez's trial.
III. Conclusion
For the foregoing reasons, we vacate Vázquez's
conviction.
Vacated.
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