United States v. Charriez-Rolon ( 2019 )

United States Court of Appeals
For the First Circuit
No. 17-1123
UNITED STATES OF AMERICA,
Appellee,
v.
RANDY CHARRIEZ-ROLÓN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. District Judge]
Before
Torruella, Lipez, and Thompson,
Circuit Judges.
Alan Jay Black, for appellant.
Christopher J. Smith, Attorney, Appellate Section, Criminal
Division, U.S. Department of Justice, with whom Rosa Emilia
Rodríguez-Vélez, United States Attorney, Mariana E. Bauzá-Almonte,
Assistant United States Attorney, Chief, Appellate Division, and
Franscisco A. Besosa-Martínez, Assistant United States Attorney,
were on brief, for appellee.
May 1, 2019
THOMPSON, Circuit Judge. Randy Charriez-Rolón
(Charriez, for short) stands convicted of possessing child
pornography and transporting a minor with the intent to engage in
criminal sexual activity. For his crimes, he received an effective
sentence of 420 months in prison (because the district judge
ordered concurrent time). Charriez now appeals, arguing that there
was insufficient evidence to convict him of possessing child
pornography and that the prosecutor's comments during closing
arguments crossed constitutional lines. Neither of his arguments
persuade us, so we affirm his conviction on all counts.
BACKGROUND
Because Charriez challenges the sufficiency of the
evidence, among other things, we state the facts in the light most
favorable to the jury's verdict. See United States v. Santos-
Soto, 799 F.3d 49, 56-57 (1st Cir. 2015).
A. XFS Moves In1
In 2009, when he was five years old, XFS and his family
moved into a neighborhood called "Las Cuchillas" in Toa Alta,
Puerto Rico — four houses away from Charriez. There, XFS lived
with his parents and four siblings: two older sisters, one older
brother, and one younger sister. About a year after XFS and his
1 In cases involving minors, we refer to children by their
initials, rather than their full names, to protect their privacy.
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family moved in, Charriez approached XFS's mother and offered a
helping hand for whatever the family might need in the future.
The family welcomed the help, and Charriez began
regularly spending time at XFS's home as a friendship developed.
Charriez offered neighborly gestures, for instance when XFS's
parents could not pick up the kids from school, Charriez would get
them home. When he ran errands, Charriez would visit the kids and
take them along for the ride. He got close to them, particularly
with XFS.
And XFS, who was bullied at school and had trouble
communicating with others, welcomed Charriez's invitations at
first. After all, Charriez was showering him and his siblings
with gifts such as ice cream, video games, bicycles, and even a
bunk bed worth $1,000 for the boys. Unfortunately, though, things
are not always as they seem, and XFS's view of Charriez quickly
changed — with good reason, as we are about to see.
B. Charriez's Sexual Abuse of XFS
In the fall of 2013, XFS was starting the third grade
and doing well. That December, though, XFS's mother learned that
his grades were slipping, and so she asked him what was going on.
He told her that he just couldn't think. By February, XFS was
failing every class. Eventually, XFS spoke with his uncle and
revealed a horrifying secret about Charriez.
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Turns out, Charriez's intentions were anything but pure.
After picking up the kids from school, Charriez would drop them
all off at home — all, that is, except for XFS, who Charriez would
spend more time with without the parents' permission. Strangely,
too, at night Charriez would climb up a balcony to get into the
children's bedroom.
But that was only the beginning. Charriez began showing
XFS "bad things" on his cellphone (more on that later). And his
gifts now came with conditions. For example, if XFS wanted to
ride the bike Charriez bought him, XFS had to let Charriez put his
finger into XFS's anus. Once, when XFS refused, Charriez shot him
in the knee with a pellet gun, tied him up, and sexually assaulted
him. Charriez used Vaseline each time to facilitate the assaults.
And to Charriez, location did not matter. He would
assault XFS in restroom facilities at public parks and fast food
restaurants. In his vehicle with tinted windows, he would drive
to isolated areas of public parking lots and assault XFS in the
passenger's seat. The abuse began in late 2013 and continued until
law enforcement got involved the following spring.
C. Charriez Gets Arrested
The month after XFS spoke up about the abuses, police
arrested Charriez. Waiving his Miranda rights2 Charriez gave
2 See Miranda v. Arizona, 384 U.S. 436 (1966).
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police permission to search his home, vehicle, and cellphone while
they interviewed him at the local station. At his home, police
found a jar of Vaseline. In his car, they found a pellet gun under
the driver's seat. On his phone, they found what appeared to be
seven sexually explicit images involving minors (children under
the age of eighteen).
When questioned by police, Charriez admitted to having
a "curiosity" for children, which he blamed on allegedly being
molested as a child. He also said he would use his cellphone to
search the internet, using terms in Google like "youngsters,"
"pornography," "anal sex," and "pedophilia." And he said he knew
child pornography involved minors around age 14 and would "download
adult and child pornography," watch it, and then erase it.
Armed with these facts, a grand jury indicted Charriez
for possessing child pornography and transporting a minor with the
intent to engage in criminal sexual activity. See 18 U.S.C. §§
2423(a), 2252A(a)(5)(B) and (b)(2). He pled not guilty and went
to trial.
D. The Trial
Covering only the highlights, we note that the
government's case against Charriez included:
 physical evidence — the pellet gun and the tub of Vaseline;
 documentary evidence — account statements for the bunk bed
Charriez purchased for XFS;
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 photographic evidence — the images found on Charriez's
cellphone; and
 testimony from police officers — about the incriminating
statements made by Charriez; a computer Forensic Examiner —
about finding and flagging the pornographic images on
Charriez's cellphone; XFS's school social worker — about
XFS's school life during the abuse; XFS's mother — about how
Charriez got close to XFS; and XFS himself — about every time
Charriez abused him.
All of this matched the government's theory of Charriez's crimes.
1. Charriez's Judgment of Acquittal Motion
At the end of the government's case, Charriez's attorney
orally moved for a judgment of acquittal on the possessing child
pornography charge. See Fed. R. Crim. P. 29. His sole argument
was that no reasonable jury could find that the images involved
minors. In his own words (emphasis ours):
[W]hat is the evidence to conclude if those people are
in fact minors? And . . . they don't have to be
pediatrician[s] or anything like that, but I still think
that . . . reasonable [jurors] cannot, beyond a
reasonable doubt, understand that first he downloaded
those images and that those are minors. That is my
position, Your Honor.
Insisting that Charriez's argument is a question for the jury to
determine, the prosecutor argued that the jurors had sufficient
evidence to decide whether the images Charriez possessed depicted
minors given his incriminating statements to police, the
Examiner's testimony, and the images themselves. The judge agreed
and denied the motion.
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2. Charriez Takes the Stand
Against his attorney's advice, Charriez chose to testify
in his defense. We again hit the highlights.
On direct examination, Charriez testified that he had
albinism, a genetic condition that affected his skin and eyesight.3
Because of his albinism, he had very dry skin and needed Vaseline
to moisturize. His car had tinted windows to protect his sensitive
skin and eyes from direct sunlight, the hope being that he would
avoid skin cancer (or so he said). He claimed that his albinism
so affected his vision that any pictures on his phone would look
"blurry." Switching subjects, he discussed his relationship with
XFS's mother. She and he, he said, were no longer friends, because
he once called the police on her for hitting her oldest daughter
— something that ticked her off. Then, he claimed that XFS's
mother would regularly access his (Charriez's) cellphone, using it
to "search the internet" — though he "[did]n't know what she was
looking for."
On cross-examination, the prosecutor asked Charriez to
confront both his admissions to police and the charges against
3 According to a leading medical dictionary, albinism is "[a]
group of inherited . . . disorders with deficiency or absence of
pigment in the skin, hair, and eyes, or eyes only, resulting from
an abnormality in melanin production." Albinism Definition,
Stedman's Medical Dictionary (28th ed. 2006), available at
Westlaw.
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him. Charriez admitted he told police he would search Google for
terms like "pornography," "anal sex," "pedophilia," and
"youngsters." But he explained he only said so because he thought
that was what police wanted to hear. Every time the prosecutor
brought up the abuse, though, Charriez's attorney objected that
the questions were outside the scope of direct examination. The
judge agreed. Unable to get Charriez to directly accept or deny
responsibility, the prosecutor quickly ended his cross.
Charriez did not call any other witnesses, but he did
renew his acquittal motion, making the same arguments that he had
made in his previous motion. The judge denied the renewed motion
for the same reasons as before.
3. Summation
Each side then gave closing arguments, with the
prosecutor asking the jury to convict and the defense urging the
jury to acquit. Of particular note, during the rebuttal portion
of his closing argument, the prosecutor took one last shot at
Charriez:
In conclusion ladies and gentlemen and most important,
the defendant came before you, took the stand and did
not deny the allegations. Had the opportunity to and
when given the opportunity to he did not deny the
charges.
Charriez's attorney did not object.
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4. Jury Instructions
The next day, just before she gave the final charge to
the jury, the judge talked to counsel about one instruction that
she had written up on her own — an instruction that read:
[K]eep in mind that the defendant has a Constitutional
right to be presumed innocent and not to testify.
Actually when a defendant does not testify no inference
of guilt may be drawn from the fact that the defendant
did not testify.
In this case the defendant Charriez Rolon decided to
testify. He provided testimony on certain subjects upon
which questions which were posed to him.
Regardless of what might have been argued by counsel, I
instruct you that you should examine and evaluate his
testimony, that is what he said, what he testified about,
and you are not to speculate or draw any adverse
inference on matters that he did not testify about. The
defendant[']s testimony is to be evaluated just as you
would evaluate the testimony of any witness with an
interest in the outcome of the case.
Both sides basically agreed to the instruction, though the
prosecutor proposed the following tweak:
Your Honor, there is no objection [to the jury
instructions] as such, but you have given me much food
for thought with respect to your handwritten instruction
here. I am wondering if it might not make sense even to
make it stronger, perhaps mentioning directly,
statements made by counsel for the government or
something along those lines. So that it becomes even
more [evident] that this is curative instruction to
anything that happened in the closing argument.
The judge responded (emphasis ours):
[I]t is a curative instruction, a cautionary instruction
for the jury. And for the record what I am referring to
is that this is an instruction that is submitted to the
jury because of the government[']s comments during
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rebuttal, that the jury was to consider, or could
consider that the defendant while taking the stand did
not deny the conduct in Counts 1 and 2. Actually what
it reads, in one of the sections is "Regardless of what
may have been argued by counsel", I can add what might
have been argued by counsel for the government. So that
will pinpoint the attorney making the statement. But I
don't want to unduly call the attention to a subject
that otherwise could or could not have been ignored. I
don't know. Any concerns by the defense?
Defense counsel said no and thanked the judge "very much." The
prosecutor signed off. And that was that.
The judge issued the edited curative instruction, along
with the other agreed-on instructions. And after she gave both
parties the chance to object, which neither side chose to do, the
jury deliberated. That same day, the jury found Charriez guilty
on all counts.
ISSUES AND ANALYSIS
Charriez now appeals, making two main arguments: first
that the government did not present enough evidence for the jury
to convict him of possessing child pornography, and second that
the prosecutor's closing arguments violated his constitutional
rights by spotlighting his decision to limit his testimony and not
address his guilt or innocence. We consider each in turn.
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A. Sufficiency of the Child Pornography Evidence4
To convict Charriez of possessing child pornography, the
government needed to prove beyond a reasonable doubt that he
possessed photos that (1) contained minors who were (2) visually
depicted as being engaged in sexually explicit conduct. See 18
U.S.C. § 2252(a)(2). A "minor" is a "person under the age of
eighteen." Id. § 2256(1). And "sexually explicit conduct"
includes "lascivious exhibition of the anus, genitals, or pubic
area." Id. § 2256(2)(B)(iii).
In moving for acquittal below, Charriez argued only that
the government did not adequately prove the first part of the
possessing-child-pornography charge: that he possessed images of
minors. And he makes that argument here, too. But he also argues
for the first time that the government failed to provide sufficient
evidence to prove the second part: that the pictures were
"lascivious." Because he preserved his first sufficiency
challenge, we review it with fresh eyes ("de novo" review in
legalese), analyzing the evidence in the light most favorable to
the government and reversing only if he carries the "heavy burden"
of "show[ing] that no rational jury could have found him guilty
beyond a reasonable doubt." United States v. Scharon, 187 F.3d
4 Curiously, unlike the jury and us, Charriez's appellate
counsel has not looked at the photos.
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17, 21 (1st Cir. 1999) (citing United States v. Rodríguez, 162
F.3d 135, 141 (1st Cir. 1998)). But because he did not preserve
his second challenge, our review is limited to preventing a "clear
and gross injustice," United States v. Ponzo, 853 F.3d 558, 580
(1st Cir. 2017), knowing there can be no "clear and gross
injustice" unless there has been such an "egregious misapplication
of legal principles" that reversal is required, United States v.
Greenleaf, 692 F.2d 182, 186 (1st Cir. 1982).
1. The Ages of the Persons in the Photos
Relying on a Fifth Circuit opinion, United States v.
Katz, 178 F.3d 368 (5th Cir. 1999), Charriez writes that juries
sometimes need "expert testimony" to figure out the age of a model
in a child-pornography prosecution. And he thinks that is the
case here, because even the Forensic Examiner was not absolutely
sure of the age of the persons depicted in the photos. The
government disagrees, insisting that the jury needed no expert
testimony because the images clearly showed prepubescent children
under age 18. Reviewing de novo, we uphold the judge's ruling.
The out-of-circuit case Charriez relies on — Katz — hurts
rather than helps his cause. Yes, Katz says that expert testimony
"may well be necessary" if the government is trying to prove a
postpubescent model is under 18. Id. at 373. But — and it is a
big "but" — Katz also says that such testimony "is not necessary
or helpful" if images involve "prepubescent children who are . . .
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obviously less than 18." Id. at 373 (emphasis added). And
Charriez does not counter the government's point that the at-issue
images involve prepubescent children (he filed no reply brief).
So under the caselaw he favors, no expert was needed.
Turning to our own caselaw, we have no opinion directly
on point. As the government notes, one case does address whether
a sentencer needs an expert's help to make a finding that a
postpubescent female in a video was under 18. United States v.
Batchu, 724 F.3d 1, 8 (1st Cir. 2013). In answering no, however,
Batchu said that "even in assessing the more technical subject of
whether a sexually explicit image depicts a real or computer-
generated child," we do not demand that the government provide
"expert evidence on the ultimate question." Id. "[T]hat we do
not require experts for that fairly technical determination,"
Batchu added, "suggests that we should similarly not require the
government to provide an expert witness for an assessment
frequently and routinely made in day-to-day experience." Id.
(citing United States v. Rodriguez-Pacheco, 475 F.3d 434, 441-44
(1st Cir. 2007)). And for support, Batchu approvingly cited United
States v. Cameron, a district court case holding that a factfinder
could find that a person in an image "is less than eighteen years
old" without any "confirming expert testimony." See 762 F. Supp.
2d 152, 163-64 (D. Me. 2011) (noting that "Rodriguez–Pacheco's
logic is readily extended to the more commonsense determination of
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whether a person in an image is less than eighteen years old"),
aff'd in part, rev'd in part on other grounds, 699 F.3d 621 (1st
Cir. 2012). So Batchu does nothing to help Charriez's claim that
expert testimony was needed here.
True, Batchu left open "whether expert testimony is
required (or able) to prove beyond a reasonable doubt the minority"
of certain persons in a video or photo. See 724 F.3d at 8. But
we need not pursue that issue here, for a simple reason. Not only
did the jury hear the Forensic Examiner talk about the prepubescent
children's "small" and underdeveloped bodies; and not only did the
jury get to see the photos of these persons for itself — the jury
also heard the police say how Charriez said that he knew child
pornography involved children around 14 years old and that he
searched for such images on his phone using terms like
"pornography," "anal sex," "youngsters," and "pedophilia." With
this evidence — viewed afresh, and in the light most agreeable to
the government — a rational jury could find, beyond a reasonable
doubt, that the images admitted into evidence contained minors.
So Charriez's first sufficiency challenge fails.
2. The Lasciviousness of the Photos
Charriez next argues that the photos cannot be
considered child pornography because the government failed to
provide enough evidence for the jury to find them "lascivious."
He again blasts the Forensic Examiner's testimony, claiming that
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because the Examiner never indicated that the images focused on
the genitals, pubic area, or intended to elicit a sexual response
in the viewer, the government failed to meet its burden. The
government thinks otherwise, arguing again that the images are
blatantly lascivious. Checking only for a clear and gross
injustice, we see no reason to disturb the judge's ruling.
The problem for Charriez is that his brief does not
mention the clear and gross injustice standard, let alone develop
any argument to meet it. And because we are not obliged to do a
party's work for him, we consider this aspect of his sufficiency
claim waived for inadequate briefing. See United States v.
Freitas, 904 F.3d 11, 23 (1st Cir. 2018) (finding waiver in a
similar situation).
Even if we were willing to overlook this waiver — and we
are not — Charriez's lascivious argument cannot prevail.
"[L]ascivious is a 'commonsensical' term" and "there is no
exclusive list of factors . . . that must be met for an image (or
a film) to be 'lascivious.'" United States v. Silva, 794 F.3d
173, 181 (1st Cir. 2015). There are certain factors that we have
considered relevant, though, including
(1) whether the genitals or pubic area are the focal
point of the image; (2) whether the setting of the image
is sexually suggestive (i.e., a location generally
associated with sexual activity); (3) whether the child
is depicted in an unnatural pose or inappropriate attire
considering her [or his] age; (4) whether the child is
fully or partially clothed, or nude; (5) whether the
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image suggests sexual coyness or willingness to engage
in sexual activity; and (6) whether the image is intended
or designed to elicit a sexual response in the viewer.
United States v. Amirault, 173 F.3d 28, 31 (1st Cir. 1999). Here,
the contested images contained fully nude minors engaged in various
sexual acts. When images, like the ones on Charriez's cell phone,
show "young [children] almost always . . . fully nude" and engaging
in activities that "display[] their genitalia in a manner that
. . . a jury reasonably could deem to be intended to sexually
arouse the viewer[,]" that is enough to show that the images are
"lascivious."5 See Silva, 794 F.3d at 181.
So Charriez's second sufficiency argument fails, too.
B. The Prosecutor's Closing Comments
Which brings us to Charriez's argument that the
prosecutor's comments during summation were so improper and
prejudicial as to require us to grant him a new trial.6 The
government counters that Charriez waived this argument by
5 To the extent Charriez also questions the sufficiency of
lascivious evidence for lack of expert testimony on that point,
the argument is a no-go. See United States v. Frabizio, 459 F.3d
80, 85 & n.8 (1st Cir. 2006) (stressing that "whether a given
depiction is lascivious is a question of fact for the jury," so
"expert testimony is not required").
6 As a reminder, the prosecutor's comments at issue were:
In conclusion ladies and gentlemen and most important,
the defendant came before you, took the stand and did
not deny the allegations. Had the opportunity to and
when given the opportunity to he did not deny the
charges.
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accepting a curative jury instruction and then failing to object
before jury deliberations. Even if the argument is not waived,
however, the government insists that the jury could reasonably
infer that if Charriez could truthfully deny or explain the
evidence against him, he would have. For our part, we think the
government's waiver argument is a winning one.
Remember, Charriez's counsel readily agreed that the
judge adequately cured any error in the prosecutor's comments by
telling the jurors that "[r]egardless of what might have been
argued by counsel for the government, . . . you . . . are not to
speculate or draw any adverse inference on matters that [Charriez]
did not testify about." His lawyer, don't forget, thanked the
judge for adopting the prosecutor's suggested tweak (which
prompted the judge to add the "[r]egardless of what might have
been argued by counsel for the government") — a tweak that worked
in his client's favor, for sure. That is waiver, pure and simple.
See, e.g., United States v. Corbett, 870 F.3d 21, 30-31 (1st Cir.
2017). We can, in our discretion, excuse such a waiver if justice
demands it. See id. at 31 n.14. But such cases are rare. Id.
And Charriez has done nothing to convince us that this is one of
them.
Enough said about the prosecutor's closing comments
issue.
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CLOSING WORDS
For the reasons recorded above, we affirm the judgment
of conviction entered below.
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