United States v. Cotto-Flores

United States Court of Appeals
For the First Circuit
No. 18-2013
UNITED STATES OF AMERICA,
Appellee,
v.
YAIRA T. COTTO-FLORES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Howard, Chief Judge,
Torruella and Thompson, Circuit Judges.
Luis Rafael Rivera-Rodríguez, with whom Allan Amir Rivera-
Fernández was on brief, for appellant.
Julia M. Meconiates, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.
August 10, 2020
THOMPSON, Circuit Judge. Once again, we are called upon
to explain how a federal government in which Puerto Ricans have no
vote may regulate them more extensively than it can most every
other American citizen. Bound by our precedent, here we go.
One fateful day in March 2015, Yaira Taines Cotto-
Flores, then a 26-year-old English teacher, drove a 14-year-old
student to a motel in San Lorenzo, Puerto Rico and had sex with
him. That was a crime. See P.R. Laws Ann. tit. 33, §§ 4770, 4772.
And to anyone familiar with our federal system of government, which
trusts the states to handle most local criminal offenses (and
thereby protects their citizens from federal overreach), it might
have seemed like a case for Puerto Rico to prosecute and punish.
After all, "[p]erhaps the clearest example of traditional state
authority is the punishment of local criminal activity." Bond v.
United States, 572 U.S. 844, 858 (2014). By limiting federal
jurisdiction over local criminal conduct, and leaving room for
state prosecutors to exercise discretion, the Constitution not
only protects states' "sovereign" policy choices; it safeguards
"the liberty of the individual from arbitrary power." Id. at 864–
65. It gives people "within a State" the right to be free from
federal prosecution for "laws enacted in excess" of Congress's
delegated "governmental power[s]," Bond v. United States, 564 U.S.
211, 222, 225 (2011), powers that are carefully "limited" within
the fifty states, United States v. Morrison, 529 U.S. 598, 607,
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618 (2000) ("The regulation and punishment of intrastate violence
that is not directed at the instrumentalities, channels, or goods
involved in interstate commerce has always been the province of
the States."). But not in Puerto Rico.
As the Supreme Court frequently reminds us, Puerto Rico
is not a "State" but part of the "Territory or other property
belonging to the United States." Harris v. Rosario, 446 U.S. 651,
651 (1980) (quoting U.S. Const., Art. IV, § 3, cl. 2) (emphasis
added). For that reason, in important ways, the U.S. government
can treat the island and its residents differently. See id.;
Puerto Rico v. Shell Co., 302 U.S. 253, 257 (1937) (citing Balzac
v. Porto Rico, 258 U.S. 298, 304, 205 (1922)); Franklin Cal. Tax-
Free Tr. v. Puerto Rico, 805 F.3d 322, 344–45 (1st Cir. 2015); see
also below at 64-67 and cases cited. Unfortunately for Cotto,
that's just what happened here.
After an investigation, federal prosecutors charged
Cotto in the United States District Court for the District of
Puerto Rico with transporting a minor "in interstate or foreign
commerce, or [as relevant here] in any commonwealth, territory or
possession of the United States" with the intent to engage in
criminal sexual activity — a federal crime under the Mann Act of
1910 (as amended) that carries a mandatory minimum sentence of ten
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years in prison. 18 U.S.C. § 2423(a).1 Cotto was tried, convicted,
and sentenced to ten years in federal prison. She now appeals.
She makes four main arguments. First, she contends that
§ 2423(a), like its counterpart covering adult victims, see United
States v. Maldonado-Burgos, 844 F.3d 339, 349–50 (1st Cir. 2016)
(construing 18 U.S.C. § 2421(a)), only applies to transportation
in "interstate or foreign commerce" with respect to Puerto Rico
(that is, to travel to or from the island); and since she never
left Puerto Rico with the victim, the drive wasn't a federal crime.
Second, even if § 2423(a) covers intra-Puerto Rico travel, there
was insufficient evidence to prove she drove the victim anywhere
— even within Puerto Rico. Third, the judge confused the jury by
explaining the elements of the Puerto Rico crimes (of "sexual
assault" and "lewd acts") the government alleged she'd intended to
commit at her destination. And fourth, the judge should not have
let the victim testify by two-way videoconference, which violated
Cotto's Sixth Amendment right to confront her accuser in person.
1 In a related case heard on the same day as this one, see
United States v. Montijo-Maysonet, No. 18-1640, defense counsel
reported that Puerto Rico is the only place where the government
has prosecuted wholly local conduct like Cotto's under § 2423(a),
based on her search of the judiciary's Public Access to Electronic
Records system. When we followed up during oral argument in this
case, the government responded that it was not aware of any such
case brought in any other United States territory outside of Puerto
Rico.
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Here are the spoilers. We disagree with all but one of
Cotto's gripes. Namely: § 2423(a)'s ban on transporting a minor
to commit a sex crime, unlike § 2421(a)'s general prohibition,
applies to transportation within Puerto Rico, which is a
"commonwealth . . . of the United States" under the statute; there
was ample evidence to find Cotto guilty; and the judge properly
instructed the jury on the local crimes Cotto allegedly drove the
victim to the motel to commit. However, we hold that the judge
violated Cotto's Sixth Amendment right to in-person confrontation
when he allowed the victim to testify by two-way close-circuit
television ("CCTV") under a misreading of Maryland v. Craig, 497
U.S. 836, 855–56 (1990), and without making the specific "on the
record" findings that 18 U.S.C. § 3509(b)(1)(C) and Craig require.
On these unique facts, we conclude that the appropriate remedy is
to reverse Cotto's conviction and remand for a new trial.
HOW WE GOT HERE
The Crime2
Cotto started teaching at Escuela Manuel Torres
Villafañe, a public school in San Lorenzo, Puerto Rico, in August
2015. Before long, other teachers started to notice that a 14-
year-old ninth grader — we'll call him "YMP" — wasn't finishing
2
Since Cotto makes a sufficiency challenge, we tell the story
from the government's perspective so far as the evidence reasonably
supported the inferences the government draws. See United States
v. Tanco-Baez, 942 F.3d 7, 15 (1st Cir. 2019).
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his schoolwork and would often skip class to spend time alone with
Cotto. One day, a teacher walked by Cotto's classroom and saw her
alone with YMP holding hands. As it turns out, that was the tip
of the iceberg. By November, Cotto and YMP were messaging each
other constantly through WhatsApp (the smartphone application).
Cotto told YMP that she loved him, that "if you were older, I would
already be by your side," and proposed that they have sex. In
January, she planned how to do it without getting caught: "I
prefer to go into that motel than out front in the car because
it's not safe," she wrote. She told him she'd take steps to make
sure she didn't get pregnant. She also bought him gifts — facial
creams and an expensive watch for Valentine's day — and left love
notes in his school bag. All the while, Cotto stressed the need
to keep their relationship hidden. "I have left a lot for you,"
she messaged him, "and risk myself every day, to losing even my
job." "We have to hide babe" (she wrote); "[i]f your mom makes a
complaint, well, then the biggest scandal in the world explodes."
On February 3, 2016, they went to a nearby motel and had sex for
the first time.
A month later, on March 1, 2016, YMP told a school staff
member that he needed to leave early to go to the barbershop and
his grandmother's house. In reality, just after noon, he walked
to the restaurant La Casa de Abuela (which, to be fair, translates
to "Grandmother's House"), where he and Cotto had planned for her
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to pick him up. YMP testified that about five minutes after he
got to the restaurant, Cotto arrived in her gray Kia Rio, YMP got
into the passenger seat, and they drove to Motel Oriente. When
they got there, Cotto drove into the carport and paid through a
window. They went to a room on the second floor and had sex.
Meanwhile, tipped off that something was up, the school social
worker and a volunteer went to the barbershop and YMP's
grandmother's house and learned that YMP hadn't been to either.
Around three hours later, Cotto dropped off YMP on a road near the
restaurant and he walked back to school, where the principal and
YMP's mother were waiting for him. Initially, YMP told those
adults and his friends that he hadn't been with Cotto that day.
But later, YMP revealed that he had been.
The Trial
Cotto was charged under 18 U.S.C. § 2423(a), which (along
with §§ 2421–24) codifies the Mann Act of 1910, Pub. L. No. 61–
277, § 2, 36 Stat. 825 (1910), as amended in the Protection of
Children from Sexual Predators Act of 1998, Pub. L. No. 105–314,
§ 103, 112 Stat. 2974, 2976 (1998) (the "Protect Act").3 Section
2423(a) provides that anyone "who knowingly transports" someone
under eighteen years old "in interstate or foreign commerce, or in
3 We chronicled the post-1910 amendments to the Mann Act in
Maldonado-Burgos, 844 F.3d at 341 n.3.
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any commonwealth, territory or possession of the United States
with intent that [the minor] engage in prostitution, or in any
sexual activity for which any person can be charged with a criminal
offense, shall be fined . . . and imprisoned not less than 10 years
or for life." 18 U.S.C. § 2423(a). Cotto twice moved to dismiss
the indictment, arguing both times that § 2423(a) requires
transportation across state or territorial lines and doesn't cover
trips from one place to another within Puerto Rico. But the judge
denied both motions, finding that Puerto Rico is a "commonwealth"
within the meaning of the Act. See United States v. Cotto-Flores,
No. Cr. 16-206, 2016 WL 5818476, at *2–3 (D.P.R. Oct. 5, 2016).
Having upheld the indictment, the judge set the case for trial.
Several days before trial, the government filed a motion
to have YMP testify by two-way closed-circuit television ("CCTV")
under 18 U.S.C. § 3509(b) (permitting that procedure if the
government shows the victim can't testify in the defendant's
presence "because of fear" or because expert testimony has
established a "substantial likelihood" (s)he "would suffer
emotional trauma from testifying," among other reasons).4 Cotto
4Section 3509(b)(1)(D) describes how the procedure works:
essentially, it's a two-way videoconference. The witness, the
prosecutor, and the defendant's attorney go to a separate room,
while the judge, jury, and defendant stay in the courtroom. The
attorneys for each side then question the witness in the separate
room (conducting direct and cross examination) while a camera
transmits the live video/audio feed of the minor to a
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opposed the request, arguing that remote testimony wasn't
necessary and would violate the Sixth Amendment Confrontation
Clause; in her view, YMP had to testify in open court in Cotto's
presence. But the judge disagreed. Long story short (we'll give
you the details when the time comes), after interviewing YMP in
chambers, the judge found YMP would be unable to testify in court
in front of Cotto, granted the government's motion, and permitted
YMP to testify via two-way CCTV.
So at trial, the Assistant United States Attorney
("AUSA" for short) and Cotto's attorney questioned YMP in a
separate room, with his testimony streamed via CCTV to Cotto, the
judge, and the jury in the courtroom. See 18 U.S.C.
§ 3509(b)(1)(D). YMP could see Cotto and she could see him. See
id. He testified to the WhatsApp messages, his relationship with
Cotto, the trip to the motel, and the sex. In her defense, Cotto
called one of YMP's classmates, who testified that he saw YMP leave
school that day and get into a white car, not Cotto's car. But
based on YMP's testimony, along with that of two other teachers,
a school volunteer, the school social worker, the school director,
monitor/speaker in the courtroom, where the defendant, judge,
jury, and the public can see and hear the minor testify. Id.Meanwhile, thanks to another camera in the courtroom, the minor
can see a live video stream of the defendant (on a monitor in the
separate room) and hear the judge through a speaker while (s)he
testifies. Id. The defendant must also be given a way to privately
communicate with his defense attorney during the testimony. Id.- 9 -
YMP's mother, and several government investigators, the jury found
Cotto guilty.
After the last government witness, then again after the
guilty verdict, Cotto moved for a judgment of acquittal under Rule
29 of the Federal Rules of Criminal Procedure. She repeated her
claim that § 2423(a) requires the defendant to have transported
the minor across state or territorial lines, and she urged that
even if § 2423(a) applied to drives from here to there within
Puerto Rico, there was no evidence Cotto drove YMP to the motel as
charged. The judge denied those motions and sentenced her to the
mandatory minimum of ten years in prison. Needless to say, Cotto
appealed.
ANALYSIS
Applying § 2423(a) within Puerto Rico
On appeal, as she did below, Cotto first argues that her
case should never have gone to trial because § 2423(a) does not
apply to the conduct she was charged with — transporting a minor
within Puerto Rico to commit a sex crime. In the fifty states,
that section only applies if the defendant transported the victim
"in interstate or foreign commerce." In Cotto's view, the same is
true in Puerto Rico, which is (since 1952) a "self-governing
Commonwealth" vested with "state-like autonomy." United States v.
Maldonado-Burgos, 844 F.3d 339, 340, 348–50 (1st Cir. 2016) (first
quote quoting Puerto Rico v. Sánchez Valle, 136 S. Ct. 1863, 1874
- 10 -
(2016)). In fact, she reminds us, in Maldonado-Burgos, we held
that another section of the Mann Act (18 U.S.C. § 2421(a), which
penalizes transporting anyone "in interstate or foreign commerce,
or in any Territory or Possession of the United States" to commit
a sex crime) did not apply to travel within Puerto Rico. 844 F.3d
at 349–50. Cotto urges us to read § 2423(a) in the same way. If
she's right, then the judge should have dismissed the indictment,
which never alleged Cotto took YMP beyond Puerto Rico. On the
other hand, the government insists the plain text of § 2423(a)
(which covers the transportation of a minor "in any commonwealth,
territory, or possession of the United States" to commit a sex
crime) shows that unlike its more general cousin, § 2423(a) covers
intra-Puerto Rico transportation.
Despite Cotto's objections, we have to agree with the
government. Cotto has this much right though: given its promise
to grant Puerto Rico state-like status, we don't lightly conclude
that Congress intended to exercise a police power — like the power
to define, prosecute, and punish local crime — in Puerto Rico that
the law elsewhere reserves for state governments. See Cordova &
Simonpietri Ins. Agency Inc. v. Chase Manhattan Bank N.A., 649
F.2d 36, 42 (1st Cir. 1981); see also Morrison, 529 U.S. at 618("Indeed, we can think of no better example of the police power,
which the Founders denied the National Government and reposed in
the States, than the suppression of violent crime and vindication
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of its victims."). In this case, however, the plain words of the
Protect Act (which amended § 2423(a) to specifically add the word
"commonwealth"), compel that conclusion. So unlike § 2421(a),
§ 2423(a) applies to a defendant who transports his or her victim
wholly within Puerto Rico.
Like any question of statutory interpretation, whether
and how a statute applies to Puerto Rico depends not only on the
"words in the statute," but also "the context, the purposes of the
law, and the circumstances under which the words were employed."
Maldonado-Burgos, 844 F.3d at 347 (quoting Cordova, 649 F.2d at
38). So here, as in Maldonado-Burgos, Puerto Rico's transition
into a "self-governing Commonwealth" sets the stage for our
analysis. Id. at 340–41. To start then, we'll retrace that
historical current and reinforce the strong tug it exerts against
the government when it claims that a federal law regulates conduct
in Puerto Rico that the law doesn't reach in the states. See id.at 342–43 (citing Cordova, 649 F.2d at 42). With that background
in place, we'll come back to the statute's text.
Puerto Rico's Commonwealth Status under Federal Statutes
Before Puerto Rico became a "commonwealth," that is, for
its first fifty-four years as a United States territory, its
internal affairs were almost entirely "subject to the command of
Congress," Cordova, 649 F.2d at 39, and a local government largely
run by federal appointees, see Sánchez Valle, 136 S. Ct. at 1868.
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Starting in 1900 (under the Foraker Act), "[t]he U.S. President,
with the advice and consent of the Senate, appointed the governor,
supreme court, and upper house of the legislature," although "the
Puerto Rican people elected the lower house themselves." Id. Over
time, Congress gave the Puerto Rican people limited self-
government over local affairs but kept a firm grip on levers of
colonial control. See Cordova, 649 F.2d at 39. In 1917, the Jones
Act granted Puerto Ricans U.S. citizenship and the right to elect
both houses of the local legislature. See Sánchez Valle, 136 S.
Ct. at 1868. But the U.S. President still appointed the
territory's most powerful executive and judicial officers
(including the governor, the attorney general, the commissioner of
education, and the justices of the Puerto Rico Supreme Court);5
and federal law required the Puerto Rican legislature to report
all its acts to the federally-appointed governor and to Congress,
which could veto them. See Cordova, 649 F.2d at 39; Jones Act of
1917, §§ 12–13, 34, 40, 39 Stat. 951, 960–61 (Mar. 2, 1917).
Moreover, "in cases of conflict, Congressional statute, not Puerto
5
In 1947, Congress amended the Jones Act to let Puerto Ricans
elect the governor "and granted that Governor the power to appoint
all cabinet officials," but the United States "President retained
the power to appoint (with Federal Senate confirmation) judges, an
auditor, and the new office of Coordinator of Federal Agencies."
Fin. Oversight & Mgmt. Bd. for Puerto Rico v. Aurelius Inv., LLC,
140 S. Ct. 1649, 1660 (2020) (citing Act of Aug. 5, 1947, ch. 490,
§§ 1, 3, 61 Stat. 770, 771).
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Rico law, would apply no matter how local the subject." Cordova,
649 F.2d at 39 (citing the Jones Act, §§ 37, 57, 39 Stat. at 964,
968).
The tectonic plates shifted in 1950, which marked "a
significant change in the relation between Puerto Rico and the
United States." Id. That year, under mounting pressure from
Puerto Rico's leaders and the international community, Congress
authorized Puerto Rico to call a convention to draft its own
constitution, which would take effect when ratified by popular
referendum in Puerto Rico and approved by Congress. See Act of
July 3, 1950, Pub. L. 600, § 1, 64 Stat. 319 ("[F]ully recognizing
the principle of government by consent, this Act is now adopted in
the nature of a compact so that the people of Puerto Rico may
organize a government pursuant to a constitution of their own
adoption."). Two years later, when Congress approved the new
constitution, it repealed the inconsistent provisions in the Jones
Act and rechristened the remainder the Puerto Rico Federal
Relations Act (the "PRFRA"), which (along with the U.S.
Constitution) is now the cornerstone of the island's legal
relationship with the federal government. See id. §§ 4, 5, 64
Stat. at 320. Puerto Rico thus emerged from the process "a new
kind of political entity, still closely associated with the United
States but governed in accordance with, and exercising self-rule
through, a popularly ratified constitution." Sánchez Valle, 136
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S. Ct. at 1874. Or as we've put it, "Puerto Rico's status changed
from that of a mere territory to the unique status of
Commonwealth": the name the new constitution and the statute
approving it gave the new polity. Cordova, 649 F.2d at 41; see
P.R. Const. art. I, § 1 ("The Commonwealth of Puerto Rico is hereby
constituted."); Act of July 3, 1952, Pub. L. 447, 66 Stat. 327(approving "the constitution of the Commonwealth of Puerto Rico").
The Puerto Rico constitutional convention chose that
label ("commonwealth") because in the delegates' view, it
reflected Puerto Rico's "legislative autonomy in local matters."
Cordova, 649 F.2d at 40. As the convention explained:
the single word 'commonwealth', as currently used,
clearly defines the status of the body politic
created under the terms of the compact existing
between the people of Puerto Rico and the United
States, i.e., that of a state which is free of
superior authority in the management of its own
local affairs but which is linked to the United
States of America and hence is a part of its
political system in a manner compatible with its
federal structure.
P.R. Const. Convention Res. 22 (P.R. 1952).
Congress ratified that understanding when it approved
the Puerto Rico constitution and passed the PRFRA, acts which
(according to the Supreme Court) "relinquished [Congress's]
control over [Puerto Rico's] local affairs" and granted the island
"a measure of autonomy comparable to that possessed by the States."
Sánchez Valle, 136 S. Ct. at 1874 (quoting Examining Bd. of Eng'rs,
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Architects and Surveyors v. Flores de Otero, 426 U.S. 572, 597
(1976)); see also Calero-Toledo v. Pearson Yacht Leasing Co., 416
U.S. 663, 673 (1974) (holding that Puerto Rico was a "State" under
the federal statute requiring that a three-judge panel convene to
consider any challenge to a state statute; reasoning that the
Commonwealth, like a state, is "sovereign over matters not ruled
by the [U.S.] Constitution," unlike "a territory whose local
affairs are subject to congressional regulation"); Cordova, 649
F.2d at 40 (reviewing the 1950–52 legislative history and
concluding that "Commonwealth represents the fulfillment of a
process of increasing self-government over local affairs by the
people of Puerto Rico" and an "end" to its "subordinate status").
And in 1953, the executive branch assured the United Nations that
Public Law 600, the PRFRA, and the Puerto Rico constitution gave
the new commonwealth the authority to respond to Puerto Rican
voices free from federal "interference with matters of local
government."6
6
In 1953, the U.S. State Department, seeking to have Puerto
Rico classified as a "self-governing territory" (which freed the
United States from certain international obligations with respect
to the island), wrote in a memorandum to the United Nations that
"Congress ha[d] agreed that Puerto Rico shall have, under [its]
Constitution, freedom from control or interference by the Congress
in respect of internal government and administration, subject only
to compliance with applicable provisions of the Federal
Constitution, the [PRFRA] and the acts of Congress authorizing and
approving the Constitution, as may be interpreted by judicial
decision." Cordova, 649 F.2d at 40–41 & n.28. And it assured the
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In at least one way, these broad brushstrokes exaggerate
the rights the 1950–52 Acts granted Puerto Rico and its people.
Under the U.S. Constitution, Puerto Rico is still a "Territory,"
meaning that Congress (acting under its power to "make all needful
Rules and Regulations respecting the Territory . . . belonging to
the United States," U.S. Const., Art. IV, § 3, cl. 2), "may treat
Puerto Rico differently from the States so long as there is a
rational basis for its actions." United States v. Vaello-Madero,
956 F.3d 12, 20 (1st Cir. 2020) (quoting Harris, 446 U.S. at 651–
52); Franklin Cal. Tax-Free Tr., 805 F.3d at 344 (holding that
"the limits of the Tenth Amendment do not apply to Puerto Rico"
because it is "still constitutionally a territory" and its "powers
are not 'those reserved to the States' but those specifically
granted to it by Congress under its constitution" (quoting U.S.
Const. amend. X)). Before 1952, we held (following Supreme Court
precedent) that Congress may use that power under the Territory
Clause to regulate purely local crime or other internal affairs in
Puerto Rico that Congress could not reach in the states. See
members that "[t]hose laws which directed or authorized
interference with matters of local government by the Federal
Government ha[d] been repealed." Id. at 41 n.28. Presidents
Truman and Kennedy made similar statements in other official
memoranda. See id. at 40–41 (quoting President Truman's
recognition, in transmitting the draft constitution to Congress,
that its approval would vest "full authority and responsibility
for local self-government . . . in the People of Puerto Rico").
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Crespo v. United States, 151 F.2d 44, 45 (1st Cir. 1945). We
assume (because Cotto does not dispute) that even after 1952,
Congress may still regulate such intra-Puerto Rico conduct, even
if doing so would break the promises it made that year. See below
at 68-70; United States v. Lopez Andino, 831 F.2d 1164, 1172–75
(1st Cir. 1987) (concluding that the Court in Harris "reaffirmed
the existence of Congress's post-1952 plenary power over Puerto
Rico pursuant to the Territory Clause," and the PRFRA is not a
true "compact" but "merely an Act of Congress" that "does not bind
future Congresses"). But see Fin. Oversight & Mgmt. Bd. for P.R.
v. Aurelius Inv., LLC, 140 S. Ct. 1649, 1677–83 (2020) (Sotomayor,
J., concurring) (arguing that, to the contrary, the 1952
legislation may well have been a "compact" that may place limits
on Congress's power to regulate Puerto Rico).7
In other words, we need not decide whether the 1952
legislation restricts Congress's power to legislate in Puerto
Rico. Rather, "this case requires us [only] to answer a question
of congressional intent," Maldonado-Burgos, 844 F.3d at 345: what
did Congress mean to do when it amended § 2423(a) to include the
7
Thus, in case there's any room for doubt, we need not and
do not decide that the 1952 legislation constitutes a "compact"
between the United States and Puerto Rico that differs from a
regular statute; and we do not suggest that there is some basis
other than the Territory Clause on which Congress may criminalize
illicit transportation within Puerto Rico that does not affect
interstate commerce. Contra below at 70.
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word "commonwealth"? So for present purposes, what's important is
that Congress's commitment in the PRFRA to give Puerto Rico state-
like autonomy in its local affairs, see Sánchez Valle, 136 S. Ct.
at 1874, has at least the force of federal statute, see Lopez
Andino, 831 F.2d at 1174–75 (Torruella, J., concurring), subject
to repeal only by an express statement or clear implication in
later legislation, see Aurelius, 140 S. Ct. at 1677 (Sotomayor,
J., concurring) (quoting Carcieri v. Salazar, 555 U.S. 379, 395
(2009)). That commitment (as we and the Court have construed it)
forms the backdrop against which Congress now legislates when it
comes to Puerto Rico and "informs Congress's intent" when it does
so. Jusino Mercado v. Puerto Rico, 214 F.3d 34, 44 (1st Cir.
2000).
Cordova/Maldonado-Burgos
That background plays an especially critical role when,
as here, we're asked to construe another federal statute "to
intervene more extensively into the local affairs of post-
Constitutional Puerto Rico than into the local affairs of a state."
Cordova, 649 F.2d at 42. In such cases, we ask whether the "Act's
framers, if aware of Puerto Rico's current [post-]constitutional
status, would have intended it to be treated as a 'state' or a
'territory' under the Act." Id. at 39. That assumption comes
with a corollary: that, if the enacting Congress was aware of
Puerto Rico's "commonwealth" status and long road to attaining it,
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it would have acted with an intent to "fulfill [its] promise" to
grant Puerto Ricans state-like self-rule free from the selective
intervention of a federal government they do not elect.8 Jusino
Mercado, 214 F.3d at 44. With that pledge in mind, we do not read
statutes "to treat Puerto Rico in one way and the states in another
unless the language of [the] particular statute" or "some other
compelling reason" in its structure, context, or legislative
history demands that result. Id. at 42 (anchoring that rule in
§ 9 of the PRFRA, 48 U.S.C. § 734, which we read to "advise[] us
with uncharacteristic bluntness that [Congress] does not intend a
generally applicable statute to regulate Puerto Rico to the full
extent allowed by the Constitution unless it either specifically
singles out Puerto Rico or imposes similar regulations on the
states"); see also Cordova, 649 F.2d at 42 (holding that "there
would have to be specific evidence or clear policy reasons embedded
in [a] statute to demonstrate" that Congress meant it to regulate
more local conduct in "post-Constitutional Puerto Rico" than it
does in the states).9
8 Despite Public Law 600's peon to "government by consent,"
Puerto Rican residents do not have voting representatives in
Congress, which can nonetheless regulate them; and to boot, they
cannot vote for President. See Igartúa de la Rosa v. United
States, 626 F.3d 592, 596 (1st Cir. 2010).
9 Cordova established this framework in holding that the
Sherman Antitrust Act did not apply to restraints on trade or
commerce taking place wholly within Puerto Rico. 649 F.2d at 42.
- 20 -
In Maldonado-Burgos, we applied that test to § 2421(a)
(which bans the transportation of "any individual in interstate or
foreign commerce, or in any Territory or Possession of the United
States" to commit a sex crime) and held that after 1952, that
section no longer applies to travel wholly within Puerto Rico.
844 F.3d at 346–47. The government had indicted a man who
transported an 18-year-old woman with a severe mental disability
within Puerto Rico to engage in unlawful sexual activity. Id. at
340. The district court dismissed the indictment. Id. On appeal,
the government argued that the statute applied to Puerto Rico as
a "Territory or Possession" and covered transportation within it,
as we'd held in 1945. See id. at 342–43 (citing Crespo, 151 F.2d
at 45 (holding that it could "not be doubted that [§ 2421(a)]
applie[d] to transportation within Puerto Rico," which was "a
territory within the meaning of the Act")). The government urged
that despite the intervening developments, Crespo still
controlled. We disagreed; rather, we held that Cordova "blazed a
trail" we had to follow. Id. at 340. As in Cordova, we asked the
question Crespo hadn't answered: whether "the Mann's Act framers,
if aware" of Puerto Rico's "post-Crespo transformation from a
[mere] United States territory to the 'self-governing
Commonwealth' it is today," "would have intended it to be treated
as a 'state' or 'territory' under the Act." Id. at 340, 347 (first
quoting Sánchez Valle, 136 S. Ct. at 1874; then quoting Cordova,
- 21 -
649 F.2d at 39). Reviewing the statute's text, legislative
history, and the government's policy arguments (that human
trafficking is a "pervasive problem" in Puerto Rico), we
nonetheless found no "specific evidence or clear policy reasons
embedded in § 2421(a)" to show that its framers would have meant
to federalize the prosecution of local crime in the Commonwealth
of Puerto Rico. Id. at 347–50. Thus, we concluded that § 2421(a)
reaches "only transportation 'in interstate or foreign commerce'
with respect to the island." Id. at 350. In other words, § 2421(a)
reserves for Puerto Rico (as it does for states) the decisions of
when to prosecute, and how severely to punish, illicit
transportation that occurs wholly within its borders.
Section 2423(a)
In this case, Cotto urges us to extend Maldonado-Burgos
and hold that § 2423(a) also requires cross-border travel and
doesn't apply to drives from schools to motels within Puerto Rico.
As we outlined in Maldonado-Burgos, however, § 2423(a) defines a
separate crime against a distinct class of victims (minors) and
uses language different from § 2421(a)'s "to identify the
transportation covered." Id. at 351, n.11. Most damning, in 1998,
Congress amended § 2423(a) to cover illicit transportation "in any
commonwealth, territory, or possession of the United States." Id.
at 350 n.10 (quoting the Protect Act, Pub. L. No. 105–314, § 103,
- 22 -
112 Stat. 2974, 2976) (emphasis added).10 When it did so (we must
assume), Congress was well "aware of Puerto Rico's [commonwealth]
status," id. at 347, of Cordova, and of the parade of decisions in
which the District of Puerto Rico had exempted "'intra-
commonwealth' activities" from several important "statutes which,
by their terms, appl[ied] to 'intra-territory,' but not to 'intra-
state,' activities," Cordova, 649 F.2d at 38 & n.6, 42 (listing
decisions holding that the Federal Firearms Act, the Federal
Alcohol Administration Act, and the Sherman Act did not apply to
wholly local activity in Puerto Rico). See Guerrero-Lasprilla v.
Barr, 140 S. Ct. 1062, 1072 (2020) (explaining that courts
"normally assume that Congress is 'aware of relevant judicial
precedent' when it enacts a new statute" (quoting Merck & Co. v.
Reynolds, 559 U.S. 633, 648 (2010)).11 Against that background,
10
The Protect Act also amended § 2423(a) to increase the
maximum penalty for violating that section and added enhanced
penalties for repeat offenders. See Pub. L. 105–314, 112 Stat. at
2974.
11 Of course, being one circuit among many, we might not
normally assume that Congress has our caselaw in mind when it
enacts legislation. As other circuits have recognized, however,
given our jurisdiction over appeals from the District of Puerto
Rico, our decisions have an outsized impact on how federal law
applies to Puerto Rico. See Rodríguez v. P.R. Fed. Affairs Admin.,
435 F.3d 378, 382 (D.C. Cir. 2006) (adopting our reasoning in
Jusino Mercado and considering us "the court most expert on Puerto
Rico's status"); see also United States v. Laboy-Torres, 553 F.3d
715, 719 n.3 (3d Cir. 2009) (according our decisions concerning
the application of federal statutes to Puerto Rico "great weight").
In addition, by 1998, Cordova (which was authored by then-Judge
Breyer), had been around for a while, and the Supreme Court had
- 23 -
there's only one plausible reason for the amendment: to remove
any doubt that § 2423(a) applied to the transportation of minors
in non-state "commonwealths" like Puerto Rico. See United States
v. Medina-Ayala, 906 F. Supp. 2d 20, 22 (D.P.R. 2012) (concluding
that "[t]here could hardly be a clearer [indication] of purpose
than the specific addition of the word 'commonwealth' to the
existing language of the Mann Act").12
In her effort to resist that conclusion, Cotto makes two
main arguments. First, she suggests that Congress must expressly
call out "Puerto Rico" in the statute before we can read it to
treat the island differently from the states. But nothing in the
PRFRA, Cordova, or Maldonado-Burgos lets us disregard Congress's
cited it with approval to describe Puerto Rico's commonwealth
status. See Rodríguez v. Popular Democratic Party, 457 U.S. 1, 8
(1982) (citing Cordova, 649 F.2d at 39–42).
12 Four states (Massachusetts, Pennsylvania, Virginia, and
Kentucky) and the Commonwealth of the Northern Mariana Islands
("CNMI"), all share the same "commonwealth" prefix. But Cotto
concedes that § 2423(a) doesn't cover transportation wholly within
any state. And for good reason, she does not argue that Congress
added the word "commonwealth" to single out the CNMI, which enjoys
an arguably even stronger presumption than Puerto Rico's that
Congress does not selectively intervene in its local affairs.
See U.S. ex rel. Richards v. De Leon Guerrero, 4 F.3d 749, 754
(9th Cir. 1993) (explaining that when Congress "pass[es]
legislation with respect to the CNMI" that "cannot also be made
applicable to the several States[,] the Northern Mariana Islands
must be specifically named therein for it to become effective in
the Northern Mariana Islands" (quoting U.S.-CNMI Covenant, Pub. L.
94–241, § 105, 90 Stat 263, 264 (Mar. 24, 1976))).
- 24 -
clearly-expressed intent because it failed to use those two magic
words.13 To the contrary, both decisions sought to "effectuate the
intent of the lawmakers" expressed in "the words of the statute"
and "the circumstances under which [they] were employed."
Maldonado-Burgos, 844 F.3d at 347 (quoting Cordova, 649 F.3d at
38). In those cases, unlike here, it was far from clear that the
operative text of § 2421(a) and the Sherman Act (reaching conduct
"in any territory or possession of the United States") was meant
to reach intra-commonwealth activity. And there was another,
plausible way to read that text: to apply only to pre-
constitutional Puerto Rico and other territories that hadn't
achieved state-like status. To resolve the ambiguity, we relied
on a background assumption about Congress's intent — that absent
"specific evidence" or "clear policy reasons" to the contrary,
13
Some laws — including the covenant between the CNMI and the
United States — do say that Congress must recite certain words
before its legislation can encroach on local sovereignty (among
other sensitive areas). See De Leon Guerrero, 4 F.3d at 753–54
(quoting U.S.-CNMI Covenant, Pub. L. 94–241, § 105, 90 Stat 263,
264 (Mar. 24, 1976)). Per our higher-ups, statutes that require
Congress to use such "express references" or "magical passwords"
really create "less demanding interpretive requirement[s]" because
they can't compel courts to "disregard [ ] the will of a later
Congress" conveyed "either expressly or by necessary implication
in a subsequent enactment." Dorsey v. United States, 567 U.S.
260, 274 (2012) (first quoting Lockhart v. United States, 546 U.S.
142, 149 (2005) (Scalia, J., concurring); then quoting Great N.
Ry. Co. v. United States, 208 U.S. 452, 465 (1908)). So whether
the 1952 Act could have required Congress to say "Puerto Rico" to
regulate its local affairs implicates another question not briefed
here: whether that legislation was more than an ordinary statute
that Congress may repeal without Puerto Rico's consent.
- 25 -
Congress would have meant to treat the Commonwealth like a state.
Maldonado-Burgos, 844 F.3d at 350 (concluding based on the "clear
congressional intent to grant Puerto Rico state-like autonomy"
that "the [Mann] Act's framers, if aware of Puerto Rico's current
constitutional status, would have intended it to be treated as a
'state'" and not a "territory" under § 2421(a) (quoting Cordova,
649 F.3d at 39) (relying on a "general Congressional intent to
grant Puerto Rico state-like autonomy" to reach the same conclusion
under the Sherman Act)); see also Jusino Mercado, 214 F.3d at 42(explaining that was reasonable to assume Cordova's "default rule
. . . inform[ed] Congress's intent") (emphases all added).
But, when "Congress has made its [contrary] intent
clear," courts "must give effect to that intent," even if it defies
our settled expectations. Miller v. French, 530 U.S. 327, 328
(2000) (internal quotation marks omitted); In re Palladino, 942
F.3d 55, 59 (1st Cir. 2019) ("Absent [a] constitutional challenge,
when [we're] confronted with a clear statutory command . . . that
is the end of the matter." (citing TVA v. Hill, 437 U.S. 153, 194
(1978)). So when a statute like § 2423(a) clearly means to reach
more conduct in Puerto Rico than it does in the states, we have to
enforce it as written, even if it doesn't single out "Puerto Rico"
in so many words. See Dávila-Pérez v. Lockheed Martin Corp., 202
F.3d 464, 467–68 (1st Cir. 2000)(construing the words "Territory
or Possession outside the continental United States," in light of
- 26 -
the statutory context and legislative history, to cover Puerto
Rico); cf. Gregory v. Ashcroft, 510 U.S. 452, 460, 467 (1991)
(explaining that despite the rule that Congress must speak
"unmistakably" clearly to intrude on traditional state
prerogatives, the statute at issue did not have to "mention [state]
judges explicitly" to regulate their qualifications as long as it
was "plain to anyone reading the Act that it cover[ed] judges").
Cordova doesn't license us to nullify Congress's "commonwealth"
amendment; so we have to enforce its only reasonable meaning.
As her fallback, Cotto points to another clause in the
Protect Act, Pub. L. No. 105-314, § 104(a), 112 Stat. at 2976,
codified at 18 U.S.C. § 2426, which triples the maximum penalty
for offenders who violate the updated Mann Act (§§ 2421–24) after
being convicted of a prior sex offense "under State law." Section
2426(b) provides that "in this section," the term "State" includes
"a State of the United States, the District of Columbia, and any
commonwealth, territory, or possession of the United States."
There you have it, says Cotto: by defining "commonwealth[s]" as
"states," § 2426(b) shows that Congress meant to treat Puerto Rico
like a state in § 2423(a). But § 2426(b) defines "commonwealth[s]"
as "states" only for the purposes of § 2426 — to broaden the reach
of the repeat-offender penalties. So Cotto can't use § 2426(b)'s
definition to narrow § 2423(a)'s plain meaning. Her concession
that Congress used the term "commonwealth" to refer to Puerto Rico
- 27 -
elsewhere in the Protect Act only bolsters our conclusion that it
did the same in § 2423(a). See Envtl. Def. v. Duke Energy Corp.,
549 U.S. 561, 574 (2007) ("We presume that the same term has the
same meaning when it occurs here and there in a single statute.").
So, like every federal judge in District of Puerto Rico
to have addressed the question, we hold that § 2423(a) applies to
the transportation of a minor within Puerto Rico for the purpose
of committing a sex crime.14 Given that conclusion, the district
court did not err in denying Cotto's motion to dismiss the
indictment or her motions for judgment of acquittal based on the
lack of evidence that she took YMP outside Puerto Rico.15
14
See Santiago-Rivera v. United States, No. Cr. 14-742, 2019
WL 3365846, at *2 (D.P.R. July 25, 2019); United States v. Greaux-
Gomez, 254 F. Supp. 3d 329, 332 (D.P.R. 2017); United States v.
Montalvo-Febus, 254 F. Supp. 3d 319, 329 (D.P.R. 2017); United
States v. Montijo-Maisonet, 254 F. Supp. 3d 313, 315 (D.P.R. 2017);
United States v. Mercado-Flores, 109 F. Supp. 3d 467, 475 (D.P.R.
2015), adhered to, 124 F. Supp. 3d 55 (D.P.R. 2015), and vacated
on other grounds, 872 F.3d 25 (1st Cir. 2017); Cotto-Flores, 2016
WL 5818476, at *2–3; Medina-Ayala, 906 F. Supp. 2d at 22.
15
Cotto also urges that insofar as the statute covers
transportation within Puerto Rico, it is unconstitutional because
it exceeds Congress's power under the commerce clause. But
"Congress does not plainly lack plenary power under the Territorial
Clause to criminalize certain intra-jurisdictional activity in
[Puerto Rico] simply because it may not do so under the Commerce
Clause within the fifty states." United States v. Ríos-Rivera,
913 F.3d 38, 44 (1st Cir. 2019) (holding the district court did
not plainly err in upholding § 2423(a) as a valid exercise of
Congress's authority under the Territory Clause); Harris, 446 U.S.
at 651–52 (holding that Congress may rely on the Territory Clause
to "treat Puerto Rico differently from the States so long as there
is a rational basis for its actions"). Cotto does not address
- 28 -
Sufficiency of the Evidence
Cotto next argues that the government failed to prove
that Cotto "transported" YMP anywhere (nevermind outside Puerto
Rico). And even on our reading, the government had to prove that
Cotto "transport[ed]" YMP "in [the] commonwealth" as an element of
the offense. 18 U.S.C. § 2423(a). So as she sees it, even if we
view all the evidence in a light most favorable to the verdict (as
we must), the government's evidence lacked enough "bite" for a
reasonable jury to find "that the government proved each of the
elements of the charged crime beyond a reasonable doubt." Tanco-
Baez, 942 F.3d at 15 (quoting United States v. Lara, 181 F.3d 183,
200 (1st Cir. 1999)). If Cotto is right, then she'd be entitled
to a judgment of acquittal, not just a new trial. See Burks v.
United States, 437 U.S. 1, 18, (1978) (holding that "the Double
Jeopardy Clause precludes a second trial once the reviewing court
has found the evidence legally insufficient").
Her problem is that YMP testified in clear terms that
Cotto picked him up at La Casa de Abuela and drove him to the Motel
these precedents or argue that § 2423(a) oversteps Congress's power
to "make all needful Rules and Regulations respecting the Territory
. . . belonging to the United States," U.S. Const., Art. IV, § 3,
cl. 2. Nor does she develop any argument that the statute, as
we've interpreted it, lacks a "rational basis" (which would violate
the Equal Protection Clause) or violates a U.S.-Puerto Rico
compact. As such, we cannot conclude in this case that Congress
lacked the authority to regulate illicit transportation within
Puerto Rico. See Ríos-Rivera, 913 F.3d at 43–44.
- 29 -
Oriente to have sex. Cotto urges that YMP's testimony can't
sustain her conviction because she "impeached" him "extensively";
another student (called by the defense) testified that he saw YMP
get into a white car (Cotto's car was gray) that day, and on cross,
YMP admitted he lied to his mom and school staff about where he'd
disappeared to. But Cotto skates over the evidence that she
herself urged YMP to lie in order to hide their relationship from
his mother and school officials (and for obvious reasons). See
above at 6. Of course, the jury didn't have to find YMP lied at
trial simply because he'd fibbed to protect her two years earlier.
Anyway, when testing the sufficiency of the evidence, we do not
"assess the credibility of trial witnesses" or "resolve conflicts
in the evidence," United States v. Gaudet, 933 F.3d 11, 15 (1st
Cir. 2019) (quoting United States v. Hernández, 218 F.3d 58, 66
n.5 (1st Cir. 2000)); "that is a role reserved for the jury."
United States v. Kanodia, 943 F.3d 499, 505 (1st Cir. 2019)
(quoting United States v. Robles-Alvarez, 874 F.3d 46, 50 (1st
Cir. 2017)). And based on the evidence the government presented,
the jury was well within its rights to credit YMP's story of being
carted off by Cotto, which school staff (testifying that Cotto
left school early that day too), the WhatsApp messages, and the
motel records corroborated.
- 30 -
Jury Instructions
Third, Cotto faults the judge for instructing the jury
about the crime of sexual assault under Puerto Rico law. Although
we need not reach this issue, since we ultimately remand for a new
trial, we address it to provide guidance on remand. See
Swajian v. Gen. Motors Corp., 916 F.2d 31, 35 (1st Cir. 1990).
To recap, to show Cotto violated § 2423(a), the
government had to prove she transported YMP in Puerto Rico "with
intent that [he] engage in . . . sexual activity for which
[someone] can be charged with a criminal offense" (stress added).
And the judge told the jury precisely that, both before the trial
(in a set of preliminary instructions) and after the close of
evidence. He then explained:
Under the laws of Puerto Rico, criminal sexual
activity includes the following conduct: One, when
a person performs or provokes another person to
perform an oral-genital act or vaginal or anal
sexual penetration, whether genital, digital, or
instrumental, if the minor has not yet reached the
age of 16 at the time of the event; or, number two,
when a person purposefully, knowingly or
recklessly, without consummating the conduct
defined in the point above, submits another person
to an act that tends to awake, excite, or satisfy
the passion or sexual desires of the suspect, if
the minor has not yet reached the age of 16 at the
time of the event.
Though the judge didn't name them, he was describing the offenses
of "sexual assault" and "lewd acts" under Puerto Rico law, P.R.
Laws Ann. tit. 33, §§ 4770, 4772. He followed up by reminding the
- 31 -
jury that the government need not prove Cotto committed those
crimes; only that she "intended" to do so.
Cotto argues that these instructions about Puerto Rico
crimes "unnecessarily confused [the jurors] by implicitly telling
them to convict based on sexual assault instead of transportation
of a minor," which she calls "a fatal flaw" in the trial that
unfairly "tipped the scale in favor of conviction."
We test such "preserved claims of instructional error
under a two-tiered standard: we consider de novo whether an
instruction embodied an error of law, but we review for abuse of
discretion whether the instructions adequately explained the law
or whether they tended to confuse or mislead the jury on the
controlling issues." United States v. Symonevich, 688 F.3d 12, 24
(1st Cir. 2012) (internal quotation marks omitted). The
instructions here correctly stated the law, and Cotto gives us no
reason to think they may have thrown off the jury. To know if
Cotto intended to commit "sexual activity for which any person can
be charged with a criminal offense," 18 U.S.C. § 2423(a), the jury
had to know what kind of "sexual activity" constitutes a criminal
offense in Puerto Rico. See United States v. Dávila-Nieves, 670
F.3d 1, 8 (1st Cir. 2012) (upholding the judge's decision to
instruct the jury on the offense of sexual assault under Puerto
Rico law in a prosecution under 18 U.S.C. § 2422(a), which
prohibits enticing a minor to engage in "sexual activity for which
- 32 -
any person can be charged with a criminal offense," because "where
a federal prosecution hinges on an interpretation or application
of state law, it is the district court's function to explain the
relevant state law to the jury" (quoting United States v. Fazal-
Ur-Raheman-Fazal, 355 F.3d 40, 49 (1st Cir. 2004)); United States
v. Rodríguez-Rodríguez, 663 F.3d 53, 58 (1st Cir. 2011) (reasoning
that "[i]n order for the jury to determine" whether the defendant
violated § 2422(b), "it had to be instructed on Puerto Rico law").
So, as the government notes, every circuit (including ours) with
a pattern jury instruction for offenses using the phrase "sexual
activity for which any person can be charged with a criminal
offense" tells the district court to insert the allegedly intended
criminal offense into the instruction and, in most cases, to
describe its elements.16 In this case, as in the cases just cited,
following that convention was not an abuse of discretion.
Testimony by Two-Way Television
However, Cotto's last challenge spells the end of the
government's winning streak. Specifically, she argues that the
judge violated her Sixth Amendment right to confront YMP in person
16 See First Circuit Pattern Criminal Jury Instructions
§ 4.18.2422(b) (instruction for enticement of a minor under 18
U.S.C. § 2422(b)); Fifth Circuit Criminal Jury Instructions § 2.91
(for enticement of a minor under § 2422(b)); Sixth Circuit Pattern
Criminal Jury Instructions § 16.10 (for § 2423(a)); Seventh Circuit
Pattern Criminal Jury Instructions for § 2423(a); Eighth Circuit
Pattern Jury Instructions § 6.18.2423A (for § 2423(a)).
- 33 -
when he permitted YMP to testify remotely through two-way CCTV.
See above n.4 (describing the procedure). We'll start with the
legal framework governing this claim before we explain how the
judge misapplied it here and why the slip warrants a new trial.
Law on Tele-Testimony
In the ordinary case, the Sixth Amendment to the
Constitution gives the defendant the right "physically to face"
the witnesses who testify against her. Coy v. Iowa, 487 U.S. 1012,
1017, 1021 (1988) (holding that placing a screen in front of two
child witnesses to block their view of the defendant while they
testified against him violated the Sixth Amendment). The idea is
that insisting that witnesses testify "in the presence of the
person [they] accuse" helps ferret out the truth and lowers the
risk of wrongful conviction. Id. at 1020. As the old wisdom goes,
it is "more difficult to tell a lie about a person 'to his face'
than 'behind his back.'" Id. at 1019 ("A witness 'may feel quite
differently when he has to repeat his story looking at the man,"
or woman, "whom he will harm greatly by distorting or mistaking
the facts.'" (quoting Zechariah A. Chafee, Jr., The Blessings of
Liberty 35 (1956)). And, "even if the lie is told, it will often
be told less convincingly" under the gaze of the defendant and
jurors who can see the fibber's demeanor with their own eyes. Id.(explaining that the Constitution prescribes face-to-face
confrontation as the best way to "confound and undo the false
- 34 -
accuser" and "reveal the child coached by a malevolent adult,"
even if it might "upset" honest victims who take the stand to
implicate the guilty).
But, like the presumptions that underpin it, the
constitutional right to unscreened in-person confrontation has its
limits. See Craig, 497 U.S. at 844, 849 (holding that defendants
do not have an "absolute right to a face-to-face meeting with
witnesses against them at trial"). The state also has a
"compelling" interest in protecting "minor victims of sex crimes
from further trauma and embarrassment." Id. at 852 (quoting Globe
Newspaper Co. v. Superior Court of Norfolk Cty., 457 U.S. 596, 607
(1982)). So, in sexual abuse cases, when "necessary" to elicit a
minor victim's testimony without subjecting him or her to further
trauma, "at least where such trauma would impair the child's
ability to communicate," the court may allow the minor to testify
from another room through CCTV — that is, as long as the minor
still testifies under oath, subject to live cross-examination,
"and the judge, jury, and defendant are able to view (albeit by
video monitor) the demeanor (and body) of the witness as he or she
testifies." Id. at 851, 857.
"The requisite finding of necessity," however,
"must . . . be a case-specific one: The trial court must hear
evidence and determine whether use of the [CCTV] procedure is
necessary to protect the welfare of the particular child witness
- 35 -
who seeks to testify." Id. at 855. That entails two key findings:
first, that the minor would be "traumatized, not by the courtroom
generally, but by the presence of the defendant" (since otherwise,
(s)he could testify "in less intimidating surroundings" with the
defendant present); and second, "that the emotional distress
suffered by the child witness in the presence of the defendant is
more than . . . mere nervousness or excitement or some reluctance
to testify." Id. at 856 (internal quotation marks omitted). The
Maryland statutory procedure challenged in Craig (as the state
court applied it) allowed testimony by CCTV if testimony "in the
presence of the defendant" would cause the child to "suffer[ ]
serious emotional distress such that the child could not reasonably
communicate." Id. at 858. The Supreme Court held that standard
passed constitutional muster. Id. After all, "where face-to-face
confrontation causes significant emotional distress in a child
witness, there is evidence that [it] would in fact disserve the
Confrontation Clause's truth-seeking goal." Id. at 857 (citing,
among other things, the Brief for American Psychological Ass'n as
Amicus Curiae, Maryland v. Craig, 1990 WL 10013093, at 18–24 (1990)
("APA Brief") (discussing empirical evidence that a defendant's
physical presence can influence child sex abuse victims to give
less accurate, detailed, and complete testimony)).
In Craig's wake, Congress enacted 18 U.S.C. § 3509(b),
which sets out alternatives to in-person testimony in child sexual
- 36 -
abuse cases. See Child Victims' and Child Witnesses' Rights Act
of 1990, Pub. L. 101–647, § 225, 104 Stat. 4789, 4798 (Nov. 29,
1990). Among other things, the statute allows minor victims in
such cases to testify from a room outside the courtroom by two-
way CCTV if the court finds on the record "that the child is unable
to testify in open court in the presence of the
defendant . . . because of fear." 18 U.S.C. § 3509(b)(1)(B)(i).
Since Cotto raises both statutory and constitutional challenges
(and neither party distinguishes the two), we'll assume that the
statute requires at least what the Sixth Amendment does. In other
words, to satisfy § 3509(b)(1)(B)(i), the judge has to make "a
specific finding" that if the minor testified "in the presence of
the defendant" — even "in a less intimidating environment" —
(s)he'd feel fear so severe "that [(s)he] could not reasonably
communicate." Craig, 497 U.S. at 856, 858. Thus, "a generalized
finding that the child suffers from fear [is not] enough to trigger
closed-circuit testimony; the fear must be related to the prospect
of testifying in the presence of the defendant." 136 Cong. Rec.
H13288-02, H13296 (Oct. 27, 1990) (Statement of Rep. Edwards);
accord United States v. Garcia, 7 F.3d 885, 887–88 (9th Cir. 1993)
(concluding that Congress intended § 3509(b)(1)(B) to "codify[]
- 37 -
the requirement in Craig that the child be unable to testify in
open court due to the presence of the defendant").17
Whether the trial judge made specific findings
"sufficient to permit the use of closed-circuit television
testimony . . . is a legal issue that we review de novo": that
is, without deference. United States v. Turning Bear, 357 F.3d
730, 735–36 (8th Cir. 2004). When the judge makes the required
findings, however, we review them for "clear error," United States
v. Cox, 871 F.3d 479, 484 (6th Cir. 2017) (citing Hernandez v. New
York, 500 U.S. 352, 364 (1991)), meaning we must defer to the
judge's findings unless "after whole-record review — we have 'a
strong, unyielding belief'" that the judge got the facts wrong.
United States v. Rivera-Carrasquillo, 933 F.3d 33, 42 (1st Cir.
2019) (quoting Toye v. O'Donnell (In re O'Donnell), 728 F.3d 41,
17 Since neither party makes an issue of them, we've made two
more assumptions here. First, we assume without deciding that the
test announced in Craig (which involved one-way CCTV through which
the witness couldn't see the defendant) also applies to the two-
way CCTV procedure, as most circuits have held. Compare United
States v. Carter, 907 F.3d 1199, 1207–08 & n.4 (9th Cir. 2018)
with United States v. Gigante, 166 F.3d 75, 80–81 (2d Cir. 1999).
Second, we assume (also without deciding) that the Supreme Court's
later decision in Crawford v. Washington, 541 U.S. 36 (2004), which
overruled a key case Craig relied on, did not modify Craig itself.
See Carter, 907 F.3d at 1206 n.3 (holding that
"while Craig and Crawford stand in 'marked contrast' in several
respects, 'Crawford did not overturn Craig'" (quoting United
States v. Cox, 871 F.3d 479, 492–95 (6th Cir. 2017) (Sutton, J.,
concurring)).
- 38 -
45 (1st Cir. 2013)). That doesn't mean we let the findings stand
whenever there's some evidence to support them. As the Court has
put it, "[a] finding is 'clearly erroneous' when although there is
evidence to support it, the reviewing court on the entire evidence
is left with the definite and firm conviction" the judge made a
mistake. Anderson v. City of Bessemer City, N.C., 470 U.S. 564,
573 (1985) (quoting United States v. United States Gypsum Co., 333
U.S. 364, 395 (1948)) (emphases ours). But as long as the judge's
finding is "plausible," we may not reverse it even if we're sure
that "had [we] been sitting as the trier[s] of fact, [we] would
have weighed the evidence differently." Id. at 573–74.
So meeting the "clear error" standard is "no easy task";
it's "not enough that a finding strikes us as possibly or even
probably wrong." Díaz-Alarcón v. Flández-Marcel, 944 F.3d 303,
312 (1st Cir. 2019). It has to be "wrong with the force of a
[five] week old, unrefrigerated, dead fish." Id. (quoting
O'Donnell, 728 F.3d at 46). The bar is high for a reason. When
we review a transcript on appeal, we weren't there to see the
testimony unfold live; unlike the trial judge, we didn't "see [the]
witnesses face-to-face" or "appraise in person their demeanor and
inflection." United States v. Pérez-Díaz, 848 F.3d 33, 38 (1st
Cir. 2017) (quoting United States v. Guzmán-Batista, 783 F.3d 930,
937 (1st Cir. 2015)). We can't see the distress on someone's face,
or hear the stress in their voice, by reading their words in 12-
- 39 -
point Courier New. And unlike us, trial judges "listen to
witnesses" and gauge their credibility "for a living." Díaz-
Alarcón, 944 F.3d at 311 (quoting Taglieri v. Monasky, 907 F.3d
404, 408 (6th Cir. 2018)). So unless "objective evidence . . .
contradicts a witness's story," or it's "so internally
inconsistent or implausible that no reasonable factfinder would
credit it," Pérez-Díaz, 848 F.3d at 38 (quoting Guzmán-Batista,
783 F.3d at 937), a judge's choice to believe a witness "can
'virtually never be clear error.'" Cooper v. Harris, 137 S. Ct.
1455, 1478 (2017) (quoting Anderson, 470 U.S. at 575).
With that high standard in mind, we turn to YMP's in-
chambers testimony and the judge's findings based on it.
YMP's Testimony
About a week before trial, the government filed a motion
to have YMP testify by two-way CCTV under § 3509(b). Cotto opposed
the request, arguing that remote testimony wasn't necessary and
would violate the Sixth Amendment. The court tabled the matter
until the day before YMP was set to testify. When the time came
on the fifth day of trial, the judge called a recess and
interviewed YMP in his chambers with his mother and both sides'
lawyers.
To begin, there were several rounds of questions: first
from the government (e.g., "Q: [H]ow do you feel [about]
testify[ing] in open court? A: Very bad."), then the defense,
- 40 -
which sought to paint YMP as a high-functioning scholar-athlete
unaffected by Cotto's alleged crime: he had decent grades in
school (YMP agreed) and played on a traveling baseball team. But
on redirect, the government got back to the issue at hand. The
AUSA (that is, the attorney for the government) asked:
[AUSA]: How would you feel about seeing [Cotto] in
court today?
A: Bad, uncomfortable.
[AUSA:] How bad and how uncomfortable?
A: Too much.
The Court: Would you be able to testify?
YMP: No.
At that point, Cotto's lawyer jumped back in; he pointed out that
"everybody is uncomfortable as a witness," and YMP had spoken in
public before — he'd given interviews on sports radio. YMP
admitted he had. But on the radio (YMP added), he'd been talking
about baseball; he hadn't had to discuss this case. So the
government followed up: "How would you feel if you were in that
same radio station speaking about what is happening today in
court?" "Very, very, very bad," said YMP. Then, the defense
attorney stepped in once more:
[Defense Counsel]: And you feel bad because you
don't want to talk about personal things; is that
correct?
A: Yes.
- 41 -
[Defense Counsel]: But if you are compelled to do
it and you have to testify, you will do it?
A: If I am compelled I wouldn't do it either.
[Defense Counsel]: If you are called as a witness
for the prosecution, would you be conversant in
answering her questions truthfully in open court?
A: No.
The Court: Why?
YMP: Because it's uncomfortable.
The Court: Well —
Cotto's lawyer cut in again: had the prosecution ever explained
"[t]hat it is a normal process for you to testify as a witness at
trial?" YMP was confused. "What do you mean, 'at trial'?" he
asked. That's when the judge painted the picture. At "a trial,"
he explained:
The Court: . . . there is a jury, and your mother
and your father will be present, your lawyer will be
present, the judge will be present, and the defendant
. . . Yaira Cotto, she is entitled to be there. She
is not going to be asking questions, but she is
entitled to be there.
YMP: That wouldn't be the best.
The Court: Well, would you be able to testify?
That's the issue.
YMP: No.
The Court: So you would not testify?
YMP: No.
[Defense Counsel]: May I ask something? Why? Why
can't you do that?
- 42 -
A: Because, no, I don't feel comfortable.
The Court: And why would you feel not comfortable?
YMP: Because I don't want to see her. I don't want
to be there.
The Court: Would that cause you to lose your tongue?
Is that what you're telling me?
YMP: Yes.
The Court: Why?
YMP: Because I don't want to testify with her there.
I don't want to be uncomfortable.
At that point, the judge dismissed YMP and his mother to confer
with the lawyers.
"So counsel," the judge leveled (quoting from Craig),
"mere nervousness or excitement or some reluctance to testify is
not enough, but it has to be serious emotional distress such that
the child cannot reasonably communicate." On that score, the judge
was skeptical: YMP "seem[ed] to be in the middle[.]" So the
lawyers skirmished over whether YMP expressed "fear" of testifying
or just discomfort or "some reluctance" to do so. The judge noted
that YMP had "a change of face when he stated, kind of annoyed,
that he did not want to testify against her." The defense clapped
back that "that per se doesn't mean fear" — and even if YMP felt
fear, it would have to come from Cotto, and he hadn't said that he
feared her. The judge responded that "[t]he fear can be fear to
testify before a jury, fear to testify before other people, and
- 43 -
fear to testify before the judge. There's many fears involved.
It's fear." Moving on, the judge had his clerk pull out a
dictionary to find synonyms for "fear" and asked the interpreter
how he'd translate them. Then, he called YMP back in to get more
specifics.
Using those synonyms for "fear," the judge asked YMP if
"testifying in this case [would] subject you to distress?" (YMP
said "yes"), "cause you to become agitated?" ("yes"), "cause
you . . . great distress?" ("yes"), and "cause you some sort of
apprehension or alarm?" ("yes").
The Court: And do you think — above all, do you
think that this is fear that you would be — be
causing yourself?"
YMP: Yes.
The Court: So all of those that I just stated, which
is the one that really causes you to not be able to
testify?
YMP: Seeing her, standing there; that I have never
been there.
The Court: Have been where?
YMP: In the court.
On re-cross, Cotto's lawyer took aim at YMP's testimony that
"seeing [Cotto] standing there" caused him fear. He pointed out
that in a statement YMP wrote for investigators two years earlier,
YMP "didn't write that he was afraid of Mrs. Cotto." "No," YMP
admitted.
- 44 -
[Defense Counsel]: Because you didn't feel afraid of
her; is that correct?
A: No.
[Defense Counsel]: And today you don't feel any fear for
her either?
A: I am not afraid, but I do feel uncomfortable when I
see her.
. . .
[AUSA]: How would you feel if you have to testify in
front of Mrs. Cotto today in court?
A: Super bad, as I said before.
[AUSA]: And when you say "super bad," could you describe
to the judge, what does that mean?
A: That I am going to feel nervous, anxious.
[AUSA]: Do you want to see Ms. Cotto?
A: No.
. . .
The Court: Does that bring fear to you by the fact that
she is there?
[YMP]: Yes.
Unsatisfied, Cotto's lawyer followed up a final time:
[Defense Counsel]: What type of fear? Explain to
us what type of fear can come to you.
A: I don't want to see her because I don't feel good
when I see her. I don't want to see her and — I
don't want to see her.
[Defense Counsel]: Is that it? That's all the —
[AUSA]: Do you fear her looking at you?
- 45 -
A: Not necessarily.
[AUSA]: What exactly do you fear?
[Defense Counsel]: Let the record reflect that he
has remained silent.
The Court: No, let the record also reflect that he's
become red in the face.
[Defense Counsel]: He is blushing.
The Court: Of course, he is blushing. Fine.
[Defense Counsel]: Okay. But does that mean fear?
[AUSA]: Yes. Yes.
[Defense Counsel]: He hasn't answered, Your Honor.
The record should reflect that it's been almost 20
seconds and he hasn't answered.
The Court: He's been getting red.
[AUSA]: Let the record reflect, Your Honor, that we
are talking with a 16-year-old minor.
The Court: He is still a minor. All right. Do we
have any further questions?
They didn't.
Back in court, the judge granted the government's
motion. To start off, the judge "f[ound] that [YMP] demonstrated
reluctance to testify and [had a] frightened demeanor, as he
physically flushed (his face became red), his body choked, he
started moving his legs, and expressed that his chest was tight on
his left side by moving his right hand to his chest." After
describing YMP's testimony and noting that "the face-to-face
- 46 -
confrontation requirement is not absolute" but "not easily
dispensed with" (quoting Craig), the judge then concluded:
As such, the Court determines that there is a necessity
to protect the welfare of this particular child witness
who has demonstrated physical effects of fear as the Court
asked specific questions using different synonyms of the
word "fear," as the victim stated to the Court on every
synonym used that he would either not testify or was
reluctant to testify in the presence of the defendant in
accordance with the requirements of [§] 3509.
(emphasis ours). When the trial resumed, YMP testified by two-
way CCTV.
Our Take
Cotto argues that the judge failed to make the specific
findings § 3509(b) and Craig together require, and even if he made
the needed findings, the evidence didn't support them. Like Cotto,
we doubt that YMP's testimony was sufficient to justify the use of
CCTV. But we need not decide that issue — because in our view,
the judge's use of the wrong legal standard and inadequate factual
findings, set against the inconsistencies and gaps in the
evidentiary record, warrant a new trial in this case.
As we said up front, § 3509(b) and Craig together demand
more than a general conclusion that CCTV is "necess[ary] to protect
the welfare" of the witness; they demand (as relevant here) a
"specific finding" that the minor could not "reasonably
communicate" in the defendant's presence because of fear. Craig,
497 U.S. at 856; 18 U.S.C. § 3509(b); see, e.g., Garcia, 7 F.3d at
- 47 -
888 (affirming use of CCTV based on judge's finding that "because
of [her] fear of the defendant," the victim's "testimony would not
be open, complete, and substantially helpful to the jury" if she
testified with him present). Here, the judge made no such finding.
Instead, his explicit findings concluded only "that [YMP]
demonstrated reluctance . . . to testify" and "demonstrated the
physical effects of fear" when the judge asked "specific questions"
using various synonyms for it (which YMP answered affirmatively).
But those "specific questions" were about "testifying in this case"
generally; they did not ask YMP how he felt about Cotto,
specifically. So the judge did not find that Cotto frightened YMP
or that her presence (as opposed to the daunting courtroom setting)
would make him "unable" to testify. 18 U.S.C. § 3509(b); see
Craig, 497 U.S. at 857–58 (explaining that "[t]he question of
whether a child is unavailable to testify . . . should not be asked
in terms of inability to testify in the ordinary courtroom setting,
but in the much narrower terms of the witness's inability to
testify in the presence of the accused"). As such, the judge did
not resolve the issues Craig made critical. See United States v.
Bordeaux, 400 F.3d 548, 552 (8th Cir. 2005) (holding the trial
court's finding "that [the child's] fear of the defendant was only
one reason why she could not testify in open court" was inadequate
because it "did not find that [her] fear of the defendant was the
dominant reason" she couldn't testify) (citing Turning Bear, 357
- 48 -
F.3d at 737 (holding the trial court's finding that a "combination"
of factors frightened the victim came up short because it "failed
to separate out the effect on [the victim] of [the defendant's]
presence")).
The judge's remarks earlier in the hearing clue us in to
why he failed to make the needed findings. During the brief
intermission in questioning, the defense pointed out that the
government had to show "where [YMP's] fear comes from" (i.e., Cotto
herself) and argued that YMP did not fear Cotto ("I have a
statement from him here saying he is in love with the teacher, not
that he feared her," he proffered). But the judge dismissed that
argument, saying (incorrectly) that "the fear can be fear to
testify before a jury, fear to testify before other people, and
fear to testify before the judge," as long as it was "fear." In
other words, he overlooked Craig's demand for a showing that YMP
feared "the presence of the defendant" and not just the "courtroom
generally." Craig, 497 U.S. at 856. Without that showing, CCTV
may not have been "necessary," since YMP could reasonably have
testified in "less intimidating surroundings" with Cotto there.
Id.18 The judge's misreading of Craig, and resulting failure to
18
For example, if the judge believed that the combination of
the courtroom and the defendant's presence would interfere with
YMP's testimony, he could have considered closing the courtroom to
the public or permitting non-essential observers to watch from an
overflow room. See 18 U.S.C. § 3509(e) (allowing the court to
- 49 -
make the needed findings, undermines his conclusion that CCTV was
necessary. See Pullman-Standard v. Swint, 456 U.S. 273, 287
(1982) ("[I]f a district court's findings rest on an erroneous
view of the law, they may be set aside on that basis.").
Wait a second, says the government. In his oral
decision, the judge "noted YMP testified that he felt 'greatly
distressed and uncomfortable about testifying in court before the
Defendant.'" Appellee's Br. at 38. And he also said that YMP
"stated that he would be unable to testify if he were in front of
the defendant," not just in the courtroom generally. But as the
government implicitly concedes, while the judge may have "noted"
that YMP made those statements, he didn't find that either of them
were true. So, given the judge's earlier misstatement of the legal
standard, we can't conclude he was adopting YMP's statements
wholesale as his own findings of fact — at least not in this case,
where YMP's testimony about his feelings toward Cotto,
specifically, was equivocal at best.
close the courtroom to "all persons, including members of the
press, who do not have a direct interest in the case" if open-
court testimony "would cause substantial psychological harm to the
child or would result in the child's inability to effectively
communicate" and the order is "narrowly tailored to serve the
government's compelling interest"); Craig, 497 U.S. at 852(explaining that the court may exclude the "press and public" from
the courtroom where the trial court makes "a case-specific finding
that closure of the trial is necessary to protect the welfare of
the minor" (citing Globe Newspaper Co., 457 U.S. at 608–09)).
- 50 -
Indeed, a firm finding on the key issue — whether YMP
felt frightened and unable to testify because of Cotto, and not
just the crowded courtroom — was especially needed on this shaky
record. On that critical point, YMP never gave a clear answer.
Twice, it's true, the judge asked YMP if he "[w]ould . . . be able
to testify," and YMP said no. But both times, the judge was
following up on questions about how YMP would feel about testifying
in court, where (the judge made clear) "there is a jury, and
[YMP's] mother and [his] father would be present" as well as Cotto.
And when asked why he believed he wouldn't be able to testify, YMP
gave two reasons: that he didn't "want to see Cotto" and that he
didn't "want to be there" in court. A similar thing happened later
— after YMP agreed that "testifying in this case" would cause him
"fear" (and its synonyms). When the judge asked what "cause[d]
YMP" to be afraid and not "able to testify," YMP gave the same two
answers: one, "seeing [Cotto] standing there" and two, "that I
have never been there . . . in court." In other words, YMP never
singled out Cotto as the "dominant reason" he couldn't testify in
court. Bordeaux, 400 F.3d at 552. So he never addressed whether
he could testify in a less stressful setting with Cotto in the
room. Craig, 497 U.S. at 856. And no one ever asked.
Fighting on, the government points out that when the
judge asked YMP (albeit awkwardly) if "that brings fear to you by
the fact that [Cotto] is there?" YMP said yes. But it reads that
- 51 -
statement in isolation — a luxury we don't have, see Anderson, 470
U.S. at 573 (tasking us to review "the entire evidence"). When
pressed to explain, YMP clarified (as he had before) that he just
didn't "want" to see Cotto because she made him "uncomfortable."
Of course, not wanting to see Cotto — or feeling "nervous,"
"anxious," and "uncomfortable" around her (like virtually all
witnesses do) — didn't mean she'd make him unable to "reasonably
communicate" his story to the jury. See Craig, 497 U.S. at 856.
And here's the real killer: when the defense asked him point-
blank, YMP testified that he was "not afraid" of Cotto. With that
plain statement etched in the record, we doubt it could have borne
a finding that Cotto frightened YMP so much that she'd chill his
testimony. See United States v. Moses, 137 F.3d 894, 898–99 (6th
Cir. 1998) (reversing the judge's because-of-fear finding where
the child testified she was "not afraid of" the defendant but
didn't "want" to see him).
Let's be clear: we do not expect that child victims
will always (or even usually) be able to explain "what exactly"
they fear about testifying in the courtroom or give the clarity
Craig requires; and nor could we, when the whole point is to figure
out whether the witness can "reasonably communicate" in the
defendant's presence. Craig, 497 U.S. at 856. But that's where
expert testimony (while not required, United States v. Rouse, 111
F.3d 561, 569 (8th Cir. 1997)) can help fill in the gaps. See
- 52 -
Craig, 497 U.S. at 842 (noting that "expert testimony" had
"suggested that each child [victim] would have some or considerable
difficulty in testifying in Craig's presence"); Cox, 871 F.3d at
485 (affirming the use of CCTV where an expert witness examined
the child and gave "particularized" and specific testimony that
the defendant's presence would cause the child trauma and interfere
with their testimony); APA Br. at 24 (recommending that "multiple
sources of information, including expert testimony, should be
sought in making an individualized determination whether there is
a need to limit the defendant's right to face-to-face confrontation
when a particular child victim testifies"). In United States v.
Graham, for example, "the district court, on voir dire, found that"
the 17-year-old victim was "extremely nervous and uncomfortable
and fearful . . . and credited her statement that she was 'afraid'
of facing [her trafficker] in court." 707 F. App'x 23, 28 (2d
Cir. 2017). Still, the Second Circuit wrote that "[t]hese
apprehensions of appearing for live testimony may fail to meet our
demanding constitutional standard absent specific indicia of the
emotional trauma the child witness would experience 'not by
[testimony in] the courtroom generally, but by the presence of the
defendant.'" Id. (quoting Craig, 497 U.S. at 856). What tipped
the scales was a psychiatrist's finding (which the district court
credited) that the witness would "be unable to reasonably
communicate if forced to testify in the live presence of the
- 53 -
defendant." Id. Here in contrast, the government did not enlist
an expert to examine YMP and help fill the holes or reconcile the
contradictions in his in-chambers testimony.19 And all told,
that's left us with too little to go on.
As a result, even if the district judge intended to find
that YMP was "unable to testify in front of [Cotto]," we could
"[ ]not on this record . . . sustain [that] finding" without more
explanation for how the judge arrived at it. United States v.
Oquendo-Rivera, 586 F.3d 63, 68 (1st Cir. 2009). Ordinarily, we
might not require a trial judge to explain why he found certain
facts, at least when "the basis is plain from the record." Id.That's especially true when it comes to "credibility," which (as
we've said) "is largely a matter for the fact-finder." Id. at 67.
But that doesn't mean we can "insulate . . . findings from review
by denominating them credibility determinations[.]" Anderson, 470
U.S. at 575. As the Supreme Court has explained, that's because
19 Just before YMP testified in chambers, the government did
present an expert who testified outside the jury's presence on
"the general effects that boys suffer when they are the subject of
sexual abuse, be it from a male or a female." "Hearing an expert's
general testimony" on "the trauma a child may experience from
testifying in court in a defendant's presence" "is not prohibited
by Craig, so long as the testimony is not the sole basis for
finding that an individual child would suffer emotional trauma
from testifying in the presence of a defendant." Garcia, 7 F.3d
at 889. However, the government wrote in its appellate brief that
the expert's "testimony was unrelated to the issue of whether the
minor should testify via two-way [CCTV]." Thus, it has waived any
argument based on the expert's testimony.
- 54 -
factors other than demeanor and inflection go into the
decision whether or not to believe a witness. Documents
or objective evidence may contradict the witness' story;
or the story itself may be so internally inconsistent or
implausible on its face that a reasonable factfinder
would not credit it. Where such factors are present,
the court of appeals may well find clear error even in
a finding purportedly based on a credibility
determination.
Id. Thus, when it appears (but is not certain) that "[d]ocuments
or objective evidence . . . contradict[ed] the witness' story," or
when the relied-on testimony seems "implausible" or "internally
inconsistent" on a critical issue, we have required judges to give
more explanation for their conclusions. See, e.g., Oquendo-
Rivera, 586 F.3d at 67–68 (vacating revocation judgment based on
the judge's failure to explain why he credited a key witness's
story despite apparent contradictions in the evidence); United
States v. Forbes, 181 F.3d 1, 7–8 (1st Cir. 1999) (vacating order
denying a motion to suppress for the same reason); see also United
States v. Lacouture, 835 F.3d 187, 191–92 (1st Cir. 2016) (vacating
sentence because judge failed to explain why he credited child
victim's statements in transcript of a forensic interview despite
"apparent inconsistencies" in the child's story). "How much
explanation" is needed "depends on the circumstances — for example,
on the closeness of the case, the nature and extent of gaps or
doubts" that plague the record, and the "suppositions" needed "to
fill the gaps or answer the doubts." Oquendo-Rivera, 586 F.3d at
68. But the upshot is that "[i]n some cases, a result, possibly
- 55 -
defensible, may not have been adequately explained or supported."
Id.That's our conclusion in this case. Given the key gap
in YMP's testimony — that he never testified he'd be unable to
testify in front of Cotto even in less daunting surroundings — his
equivocation on the other critical point (whether Cotto frightened
him at all), and the lack of any other evidence such as expert
testimony to clear up the muddle, we could not sustain the judge's
because-of-fear finding (even if he had made one explicitly)
without some explanation for how he filled in the gaps and
untangled the apparent contradictions in YMP's testimony.20
20 For example, if the judge had known to isolate YMP's
feelings toward Cotto from his fear of the courtroom, the judge
might have nonetheless explained that YMP's tone, inflection and
demeanor suggested that Cotto was the main source of his distress.
For example, when YMP testified that he feared "seeing her,
standing there" and testifying in the courtroom, maybe he put the
stress on "seeing her, standing there" (adding "that I've never
been there . . . in court" as an afterthought). See Cooper, 137
S. Ct. at 1474 (noting that a judge's choices of how to construe
and whether to credit live testimony get "singular deference"
precisely "because the various cues that 'bear so heavily on [both]
the listener's understanding of and belief in what is said' are
lost on an appellate court later sifting through a paper record."
(quoting Anderson, 470 U.S. at 575). Of course, that train of
thought would have hit the same roadblock we identify above — that
when asked directly, YMP explicitly said he was "not afraid" of
Cotto. But perhaps his demeanor colored those words too; perhaps
the judge (with his own life experience the government's expert's
testimony, see above at n.19, in mind) could have disregarded YMP's
"I'm not afraid" as false bravado. But, given the constitutional
right at stake, and the judge's misconception that he didn't need
to suss out the source of YMP's fear, we decline to speculate about
whether (and if so why) he credited some portions of YMP's
testimony but not others. See Oquendo-Rivera, 586 F.3d at 68.
- 56 -
"Without [that] further explanation," "we would have a definite
and firm conviction" that the evidence was insufficient to show
that CCTV was needed. Forbes, 181 F.3d at 8.
In sum, then, the trial judge applied an overbroad legal
standard, failed to make the required "because-of-Cotto" finding,
and didn't articulate the explanation necessary to support one (if
the record permitted such a finding at all, which we don't decide).
As a result, when the judge allowed YMP to testify by CCTV, he
violated Cotto's right to confront YMP in person absent a
compelling need for remote testimony. See Craig, 497 U.S. at 855–
56.
Nonetheless, the government tells us, Cotto's conviction
can stand because she hasn't argued the error impacted the verdict
(so she's "waived" any argument it did). Appellee's Br. at 40.
But it's the government, not Cotto, that must shoulder the burden
to show that a constitutional violation was "harmless beyond a
reasonable doubt." Delaware v. Van Arsdall, 475 U.S. 673, 684
(1986) (citing Chapman v. California, 386 U.S. 18, 24 (1967)). In
answering that question, we have to assume that if Cotto had been
allowed to confront YMP in person, "the damaging potential of [her]
cross-examination" would have been "fully realized." Id. As the
Supreme Court explained in Coy, when the trial court violates the
defendant's right to face-to-face confrontation, our
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assessment of harmlessness cannot include
consideration of whether the witness testimony would
have been unchanged, or the jury's assessment
unaltered, had there been confrontation; such an
inquiry would obviously involve pure speculation,
and harmlessness must therefore be determined on the
basis of the remaining evidence.
487 U.S. at 1021–22. Rather, we focus on "the importance of the
witness' testimony in the prosecution's case, whether the
testimony was cumulative, the presence or absence of evidence
corroborating or contradicting the testimony of the witness on
material points," and "the overall strength of the prosecution's
case." Van Arsdall, 475 U.S. at 684; see also Carter, 907 F.3d at
1210 (holding that the victim was wrongly permitted to testify by
two-way CCTV and considering only the "remaining evidence" besides
her testimony to hold that the error wasn't harmless).
Having scoured "the whole record" through that lens, we
can't "confidently say" that "the constitutional error" here
(letting YMP testify remotely without the required findings) was
"harmless beyond a reasonable doubt." Van Arsdall, 475 U.S. at
681. First off, as we've explained in detail, it's not at all
clear the judge would have permitted YMP to testify remotely if
he'd applied the right legal standard, grappled with Cotto's
independent impact on YMP's testimony, and made the more precise
findings Craig requires. And if YMP had testified under the
"truth-inducing effect" of Cotto's "unmediated gaze," Bordeaux,
400 F.3d at 554; Carter, 907 F.3d at 1207, he may well have changed
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his story or told the same tale less convincingly. See Coy, 487
U.S. at 1020–22. The government points out that Cotto and YMP's
text messages detailed their sexual relationship, and that school
staff and records corroborated that both of them left school early
on the day in question. Moreover, records from the motel placed
Cotto's car in the motel's garage that afternoon. But without
YMP's testimony, none of that evidence establishes that Cotto took
him to the motel, or that she did so to have sex with him. So in
the end, the government admits that "YMP's testimony" was
"undoubtedly . . . important" because he "was the only witness to
establish Cotto transported him to the Motel Oriente on March 1,
2016 with the intent they have sex," as charged in the indictment.
Appellee's Br. at 41. Thus, if "the damaging potential of [YMP's]
cross-examination were fully realized," Van Arsdall, 475 U.S. at
684, the jury could have reasonably doubted Cotto's guilt.
Instead, it may well have believed the other student's testimony
that YMP left school in a white car (not Cotto's gray Kia) and
YMP's initial statements to school staff and his friends that he
hadn't seen Cotto that day. See Moses, 137 F.3d at 902 (holding
the error wasn't harmless when the child "provided the only eye-
witness testimony" to the crime).
Which brings us to the remedy. When a trial judge fails
to make required factual findings or provide an adequate
explanation for his decision, we "normally" remand for him to
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reconsider the evidence and make the appropriate findings, if
warranted, or to reverse himself if not. See Pullman-Standard,
456 U.S. at 292; Forbes, 181 F.3d at 8 (remanding for the district
court to "clarify and amplify the reasons for its factual findings
or, perhaps, reconsider its conclusion"). However, we have broad
discretion to craft the scope of our "remand in the interests of
justice," United States v. Merric, 166 F.3d 406, 412 (1st Cir.
1999), and may also order a new hearing or trial when it would
serve those interests, Ruiz-Troche v. Pepsi Cola of P.R. Bottling
Co., 161 F.3d 77, 88 (1st Cir. 1998) (holding that when a trial
court excluded evidence on a mistaken basis, "[t]he choice of
remedies (including whether to require a new trial or merely remand
for further findings) [was] ours," and remanding for a new trial
even though further findings might have justified excluding the
proffered evidence on other grounds) (citing 28 U.S.C. § 2106);
cf. Oquendo-Rivera, 586 F.3d at 69 (vacating defendant's
revocation judgment and remanding for "more evidence and more
explanation" before a different judge when the court didn't
adequately explain why it credited the government's key witness);
Andre v. Bendix Corp., 774 F.2d 786, 801 (7th Cir. 1985)
(explaining that an appellate court may "remand[] for a new trial"
when the judge fails to make sufficient findings of fact under
civil rule 52(a) (citing 9C Fed. Prac. & Proc. Civ. § 2577
(1971))).
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We think that's the appropriate course here. To begin
with, when a trial judge has decided the facts — even under an
incorrect legal standard — it can be hard "to put aside a belief
sincerely arrived at and look at the evidence through fresh eyes."
Oquendo-Rivera, 586 F.3d at 69 (reassigning the case on remand for
that very reason); see also United States v. Hernández-Rodríguez,
443 F.3d 138, 148 (1st Cir. 2006) (explaining that we may remand
"to a different district judge not only in recognition of the
difficulty that a judge might have putting aside his previously
expressed views, but also to preserve the appearance of justice").
For similar reasons, the interests of justice counsel against
asking the judge to revisit his previous ruling that CCTV was
necessary and find the missing facts.21 In this case, the key
finding needed to sustain Cotto's conviction by tele-testimony
(i.e., that YMP could not have testified in Cotto's presence) has
faint (at best) support in the evidence. To make it, the judge
would have to rely on subtle variations in YMP's tone, pace, and
demeanor when he gave certain answers. And he'd need to do so
based on two-year-old testimony. See Rucker v. Higher Educ. Aids
Bd., 669 F.2d 1179, 1184 (7th Cir. 1982) (remanding for a new
21As we note below, since YMP is now over eighteen and has
aged out of § 3509(b)'s coverage, the judge would not have to
revisit his CCTV ruling if the court holds a new trial. So we
don't think it's necessary to order this case reassigned to a
different judge — something Cotto has not requested.
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trial, instead of for further findings, when the judge applied an
incorrect legal standard because, among other things, "the trial
ended a year [before] and the record" would be too "stale in the
judge's mind"). We trust that if asked to do so, the judge would
rise to the challenge and reconsider his previous ruling with an
open mind. But if in doing so he sustains his previous finding,
"it might appear that his determination was improperly influenced
by his initial decision" instead of YMP's now-stale and barely
sufficient testimony. Hernández-Rodríguez, 443 F.3d at 148.
Without a doubt, testifying in front of an abuser in
court can "be more emotionally traumatic to [a] child than the
initial abuse itself," no matter what his age or gender. H.R.
Rep. No. 101-681(I) (Sept. 5, 1990), reprinted in 1990 U.S.C.C.A.N.
6472, 6572; see Craig, 497 U.S. at 855 (citing the already-"growing
body of academic literature documenting the psychological trauma
suffered by child abuse victims who must testify in court").
That's true for adults as well as children, though Craig and its
offspring don't protect them. See 18 U.S.C. § 3509(b) (capping
the age of covered witnesses at eighteen). So we do not lightly
order a retrial, where (if the government chooses to prosecute),
YMP (now over eighteen) would likely need to face Cotto again.
But the right to confrontation is fundamental. See Pointer v.
Texas, 380 U.S. 400, 404 (1965). It preserves not just the
"perception," but also the "reality" of fairness in our criminal
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justice system. Coy, 487 U.S. at 1017 ("[T]here is something deep
in human nature that regards face-to-face confrontation between
accused and accuser as 'essential to a fair trial in a criminal
prosecution.'" (quoting Pointer, 380 U.S. at 404)). And Cotto
faces ten years in prison without the chance to confront her key
accuser. We do not think that sustaining that result based on
YMP's two-year-old chambers testimony — equivocal at best on
whether he could face Cotto in person — would reasonably assure
Cotto and the public that her conviction rests on a fair and just
foundation.
END
For those reasons, we are bound to hold that despite
Congress's promise to grant Puerto Ricans state-like "autonomy"
over their local affairs, see Sánchez Valle, 136 S. Ct. at 1874,
and an "end" to their island's "subordinate status" under federal
law, Cordova, 649 F.2d at 42, the Protect Act — though it refers
to Puerto Rico as a "commonwealth" — treats the island as
a "territory . . . belonging to the United States" and not as a
member of the Union. Shell Co., 302 U.S. at 257. As a result, we
affirm the judge's decision to sustain the indictment and hold
there was sufficient evidence to sustain Cotto's conviction.
But because Cotto's trial violated her Sixth Amendment
rights, we vacate her conviction and remand for a new trial.
-Concurring Opinion Follows-
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TORRUELLA, Circuit Judge, Concurring. Although I fully
agree with the decision reached by the majority (as well as its
reasoning) to reverse the conviction by reason of the violation of
appellant's Sixth Amendment rights, I wish to express my
disagreement with the manifestations made regarding Puerto Rico's
constitutional status and related subjects.
The constitutional status of Puerto Rico was established
by the infamous Insular Cases:22 it is that of an unincorporated
territory, whatever that means. This is not a term you will find
anywhere in the Constitution, but one by which the Supreme Court
22 See generally De Lima v. Bidwell, 182 U.S. 1 (1901) (holding
that once Puerto Rico was acquired by the United States through
cession from Spain it was not a "foreign country" within the
meaning of tariff laws); Goetze v. United States, 182 U.S. 221(1901) (holding that Puerto Rico and Hawaii were not foreign
countries within the meaning of tariff laws); Dooley v. United
States, 182 U.S. 222 (1901) (holding that the right of the
President to exact duties on imports into the United States from
Puerto Rico ceased with the ratification of the peace treaty
between the United States and Spain); Armstrong v. United States,
182 U.S. 243 (1901) (invalidating tariffs imposed on goods
exported from the United States to Puerto Rico after the
ratification of the treaty between the United States and Spain);
Downes v. Bidwell, 182 U.S. 244 (1901) (holding that Puerto Rico
did not become a part of the United States within the meaning of
Article I, section 8 of the Constitution); Huus v. N.Y. & P.R.
S.S. Co., 182 U.S. 392 (1901) (holding that a vessel engaged in
trade between Puerto Rico and New York is engaged in the coasting
trade and not foreign trade).
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of the time23 used to validate Puerto Rico's colonial status of
inequality,24 and by which the Court supported the Manifest Destiny
and American exceptionalism theories that were prevalent during
the imperial period of the United States. This ruling and the
biased treatment of the residents of Puerto Rico that it promoted
prevailed even after they were granted U.S. citizenship25 and
continues to the present day. Although it is a status that is
based on a rationale of racial inequality,26 its flawed premises
are ones that the Supreme Court has studiously avoided confronting,
or even modifying, while at the same time creating no small amount
of confusion by its kaleidoscope of decisions as to what this
status stands for or encompasses constitutionally speaking, and
notwithstanding the platitudes that are quoted as the need arises.
A brief sample of the confusing and contradictory
language that has issued over the last century will suffice to
illustrate this point. The Court has ruled that under Puerto
23 Almost to a man, the same Court that validated Plessy v.
Ferguson, 163 U.S. 537 (1896), overruled by Brown v. Bd. of Educ.,
347 U.S. 483 (1954).
24 See Juan R. Torruella, The Insular Cases: The Establishment of
a Regime of Political Apartheid, 29 U. Pa. J. Int'l L. 283 (2007).
25 Balzac v. Porto Rico, 258 U.S. 298 (1922).
26 See Downes, 182 U.S. at 282, 286-87 (Brown, J. concurring). See
also Rubin Frances Weston, Racism in U.S. Imperialism: The
Influence of Racial Assumptions on American Foreign Policy, 1893-
1946, at 15 (1972) ("The racism which caused the relegation of the
Negro to a status of inferiority (during the Reconstruction Period)
was to be applied to the overseas possessions of the United
States.").
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Rico's constitutional status as an unincorporated territory,
Puerto Rico belongs to but is not a part of the United States;27
that it is "foreign to the United States in a domestic sense";28
that it is a jurisdiction over which Congress has plenary powers29
pursuant to the Territorial Clause;30 that its residents are only
entitled to the constitutional protection of fundamental rights,31
which does not include the right to trial by jury;32 that all the
granting of U.S. citizenship did for the residents of Puerto Rico
was to allow them the right to enter the United States freely, and
there exercise full citizenship rights if they became residents;33
that state juries must reach unanimous verdicts;34 and that Puerto
Rico is like a state for purposes of the Three-Judge Court Act, 28
U.S.C. § 2281,35 but lacks sovereignty in the context of the double
27 Downes, 182 U.S. 244.
28 Id. at 341.
29 See Harris v. Rosario, 446 U.S. 651 (1980); Califano v. Gautier
Torres, 435 U.S. 1 (1978).
30 U.S. Const. art. IV, § 3: "The Congress shall have the power
to dispose of and make all needful Rules and Regulations respecting
the Territory or other Property belonging to the United
States . . . ."
31 See Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663,
668-69 n.5. (1973).
32 See Balzac, 258 U.S. at 304-06, 309. But compare Duncan v.
Louisiana, 391 U.S. 145, 149 (1968) (holding that trial by jury is
a fundamental right), and Reid v. Covert, 354 U.S. 1, 8 (1957)
(same, and applies to prosecution of U.S. citizens outside the
U.S.).
33 See Balzac, 258 U.S. at 308.
34 Ramos v. Louisiana, 140 S. Ct. 1390 (2020).
35 Calero-Toledo, 416 U.S. at 673.
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jeopardy clause notwithstanding that "Congress . . . 'relinquished
its control over [Puerto Rico's] local affairs'" and granted the
island "a measure of autonomy comparable to that possessed by the
States."36 Topping this contradictory list of haves and have nots
we have the most downgrading of all actions validated by the
Supreme Court pursuant to Congress's omnipotent powers under the
territorial clause, wiping out all concepts of local autonomy
and/or "compact" to which it had previously given lip service
(erroneously, in my opinion), and setting Puerto Rico back to the
unvarnished colonial regime that existed in the days of the Foraker
Act37 (which spawned the Insular Cases), imposing on the U.S.
citizens of Puerto Rico an unelected board to run the territory
over its elected government.38
It seems to me that much confusion and disenchantment
would have been avoided had someone bothered to read the extensive
evidence that is available as to what Congress intended and
36 Puerto Rico v. Sánchez Valle, 136 S. Ct. 1863, 1874 (2016)
(quoting Examining Bd. of Engineers, Architects and Surveyors v.
Flores de Otero, 426 U.S. 572, 597 (1976)).
37 31 Stat. 77 (1900).
38 See Puerto Rico Oversight, Management, and Economic Stability
Act (PROMESA), 48 U.S.C. § 2101 et seq.; see also, Fin. Oversight
& Mgt. Bd. for Puerto Rico v. Aurelius Inv., LLC, 140 S. Ct. 1649(2020).
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actually did in enacting the bill that authorized the "creation"
of the "Commonwealth of Puerto Rico."39
Starting with the statute in question, as we must, one
cannot find an iota of language in that legislation, which simply
authorized a modicum of autonomy and self-government to the people
of Puerto Rico, that supports the contention that a new
constitutional status was being created, much less that one was
being established which superseded the existing unincorporated
territorial one. If that statement is not convincing enough, even
though the language of Public Law 600 self-evidently supports it,
looking at the legislative history in the Congressional Record is
helpful.
On May 17, 1950, the Senate subcommittee considering
S. 3336, the precursor of Public Law 600, heard the testimony of
Puerto Rico's Resident Commissioner in Congress,40 Dr. Antonio
Fernós-Isern, regarding the bill, and specifically regarding the
39 See Juan R. Torruella, The Supreme Court and Puerto Rico: The
Doctrine of Separate and Unequal 144-160 (1985). See also David M.
Helfeld, "The Historical Prelude to the Constitution of the
Commonwealth of Puerto Rico," 21 Rev. Jur. U.P.R. 135 (1952) and
David M. Helfeld, "Congressional Intent and Attitude Toward Public
Law 600 and the Constitution of the Commonwealth of Puerto Rico,"
21 Rev. Jur. U.P.R. 255 (1952), both of which are excellent
contemporaneous accounts of what Congress intended in enacting
Public Law that authorized what became the "Commonwealth of Puerto
Rico," and are based on the evidence in the Congressional Record
and supporting official documentation.
40 Puerto Rico's non-voting Congressman.
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"in the nature of a compact" phrase, which was causing uneasiness
because of its Sphinx-like inscrutability. In that respect Fernós-
Isern testified: "S. 3336 would not change the status of the island
of Puerto Rico relative to the United States. . . . It would not
alter the powers of sovereignty acquired by the United States over
Puerto Rico under the terms of the Treaty of Paris."41
He had already testified in a similar manner the previous
day before the House's committee dealing with H.R. 7674,42 the
counterpart to S. 3336, at which hearing the Secretary of the
Interior testified that there would be no change in "Puerto Rico's
political, social and economic relationship to the United
States,"43 a position also endorsed by Cecil Snyder, an Associate
Justice of the Supreme Court of Puerto Rico, in his own testimony.44
The Senate's report on S. 3336 succinctly stated on this point:
"The measure would not change Puerto Rico's fundamental political,
social, and economic relationship to the United States."45
This in a nutshell represents the understanding of
Congress regarding Public Law 600, and in addition to which, I
41 Puerto Rico Constitution: Hearing on S. 3336 Before a Subcomm.
of the S. Comm. on Interior & Insular Affs., 81st Cong. 4 (1950).
42 Puerto Rico Constitution: Hearings on H.R. 7674 and S. 3336
Before the H. Comm. on Pub. Lands, 81st Cong. 63 (1950).
43 Id. at 50.
44 Id. at 54.
45 S. Rep. No. 81-1779, at 3 (1950).
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refer the reader to the litany of supportive evidence summarized
in the literature cited in footnote 39.
I further disagree with the majority's views, to the
extent it relies on the existence of a "compact" between the United
States and Puerto Rico. At most, the language used in Public Law
600 is "in the nature of a compact," which is a far cry from saying
there is a "compact," which implies mutually binding promises, a
situation which does not and cannot exist between Puerto Rico and
the United States,46 given Puerto Rico's unincorporated territorial
status, which as previously demonstrated, is still validated by
the Supreme Court.
I join the merits of this case notwithstanding its
reliance on a "commonwealth" jurisdictional basis because, even
ignoring the "commonwealth" issue, there is still jurisdiction to
legislate intra Puerto Rico under the present Supreme Court case
law regarding unincorporated territories. This alternate view
validates the prosecution, and does not, however, affect my
concurring with the majority on the outcome of this appeal.
46 See Dorsey v. United States, 567 U.S. 260, 274 (2012) ("[O]ne
Congress cannot bind a later Congress, which remains free to repeal
[an] earlier [law]."); see also Christina D. Ponsa-Kraus,
Political Wine in a Judicial Bottle: Justice Sotomayor's
Surprising Concurrence in Aurelius (July 27, 2020), 130 Yale L.J.
Forum _________ (Forthcoming 2020), available at
SSRN: https://ssrn.com/abstract=3661668. But see Aurelius Inv.,
LLC, 140 S. Ct. at 1677-78 (Sotomayor, J., concurring in judgment)
(noting that "[t]he truism that 'one Congress cannot bind a later
Congress' appears to have its limits" (citation omitted)).
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