Filed: Oct. 12, 2012
Latest Update: Mar. 26, 2017
Summary: Acevedo volunteered his statement, confirming ownership of the webcam, and informed officers as to his, computer's location in response to non-coercive police questioning., 2, Both testimony and the parties' briefs refer to the seized, computer equipment as a computer tower.LANG: Yes.objection).
United States Court of Appeals
For the First Circuit
No. 11-1334
UNITED STATES OF AMERICA,
Appellee,
v.
JOSEPH ACEVEDO-MALDONADO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Lipez, Circuit Judges.
Anita Hill Adames, on brief for appellant.
Luke Cass, Assistant United States Attorney, with whom Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Rosa Emilia Rodríguez-Vélez, United States Attorney,
on brief for appellee.
October 12, 2012
TORRUELLA, Circuit Judge. Defendant-Appellant Joseph
Acevedo-Maldonado ("Acevedo") was convicted after a jury trial of
producing, and aiding and abetting in the production of, a visual
depiction of a minor engaged in sexually explicit conduct using
materials mailed, shipped, or transported in interstate or foreign
commerce. 18 U.S.C. §§ 2251(a) & 2. Acevedo appeals, asserting
that the Government's proof as to the crime's jurisdictional
element -- i.e., that the materials were a part of foreign or
interstate commerce -- rested on inadmissible hearsay which
violated his right to confrontation under the Sixth Amendment. For
the following reasons, we affirm Acevedo's conviction.
I. Background
Facts are derived from testimony given at trial. As this
appeal follows a conviction, "we recount the facts in the light
most favorable to the verdict." United States v. Poulin, 631 F.3d
17, 18 (1st Cir. 2011).
On January 30, 2009, police officer Javier Rivera-Yambo
("Rivera") executed a search warrant for computer equipment at both
Acevedo's apartment and the home of Acevedo's mother in Utuado,
Puerto Rico. The search of Acevedo's apartment proved fruitless,
but the inspection of his mother's house did not: officers
uncovered a webcam that Acevedo admitted was his to investigating
officers. Acevedo also stated during the search warrant's
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execution that he had a computer at his sister's home.1 Based on
this statement, officers proceeded to his sister's house. Officers
seized a "computer tower"2 located "nearby [the sister's]
residence." Rivera testified that the seized tower appeared to be
"broken down," as if someone had "tried to tear it apart."
On February 2, 2009, Wilmary Ramos Soto ("Soto"), a Task
Force Agent in the Cyber Crimes Division of U.S. Immigration and
Customs Enforcement ("ICE"), went to the Utuado Police Station to
collect the evidence seized during the searches of Acevedo's
residences. Among the items that Soto collected at the station
were the computer tower, the webcam, and other electronic devices.
Soto transported these items, including the hard drive, to a
forensic inspector; the hard drive3 was then sent to Drive Savers
in the mainland United States. True to its company name, Drive
Savers specializes in retrieving lost information from damaged hard
1
Questioning at trial confirmed that prior to executing the
search warrant, Acevedo was arrested for state charges unrelated to
this case. On being placed under arrest, officers administered
Miranda warnings to Acevedo. Acevedo volunteered his statement
confirming ownership of the webcam, and informed officers as to his
computer's location in response to non-coercive police questioning.
2
Both testimony and the parties' briefs refer to the seized
computer equipment as a "computer tower." A computer tower is a
type of computer that is generally in a box-like, rectangular
shape. It holds many of the components of a desktop computer,
including a hard drive, motherboard, and power supply. We refer to
this equipment interchangeably as a "computer" or "computer tower."
3
Testimony offered at trial by one of the computer equipment
examiners defined a hard drive as "a combination electronic/
mechanical device that's used to store data."
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drives for customers by repairing them and making duplicate copies
of their salvaged information.
Ron Cen ("Cen"), a clean room4 technician who has worked
for nine years retrieving data from damaged hard drives at Drive
Savers, was in charge of examining and rescuing any available data
from Acevedo's hard drive and making an identical image copy5 of
the retrieved data. Cen was successful in his tasks; he restored
Acevedo's hard drive and made a clone-image copy of the drive.
ICE also enlisted the assistance of Maine State Police
Sergeant Glen Lang ("Lang"), a supervisor of that state's Computer
Crimes Unit who had extensive experience working and training
others in computer forensics, and who occasionally assisted in out-
of-state cases. According to Lang's testimony, ICE sent him the
40-gigabyte6 Samsung hard drive seized from Acevedo's home and the
copy made by Drive Savers. He also made his own image copy of the
drive seized by the police. Lang had instructions to examine the
4
Even though Cen did not explain during his testimony what a
clean room is, we presume it refers to a special type of laboratory
required to carry out the retrieval of data from damaged hard
drives.
5
Cen explained that an image copy is, "a bit-by-bit clone of the
drive that is made to a "clean targetwell[]," or new hard drive
with purpose of producing "an identical copy of the data set" that
the engineers can work on.
6
A gigabyte is a billion bytes. "Byte," in turn, means "a group
of adjacent binary digits often shorter than a word that a computer
processes as a unit," and the prefix "giga-" means "billion."
Webster's New Collegiate Dictionary 192, 517 (9th ed. 1986).
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data for any video clips it might contain. His inspection of the
hard drive revealed a number of videos. Of those pertinent to this
case were approximately five, which "all contained a small string
of text . . . associated with the Logitech webcam" that Rivera
seized during the search of Acevedo's mother's home. These videos
"all involve[d] some activities at a residence, generally involving
a girl and an adult male."
On July 9, 2009, a grand jury indicted Acevedo and his
female partner, Jennisse López-Correa ("López") (collectively, the
"defendants") of one count. The count charged that in April 2006,
defendants employed, used, persuaded, induced, enticed, or coerced
a female minor, identified as "L.G.,"7 to engage in sexually
explicit conduct with Acevedo for purposes of producing a visual
depiction of the same, which was recorded on a webcam and computer
that had been transported in interstate or foreign commerce. López
pled guilty to the charge; she also agreed to testify against
Acevedo at trial, which took place on July 7 and 8, 2010.
At trial, the Government presented several witnesses,
including López and L.G. López identified the seized computer and
webcam as the recording devices that she and Acevedo used to
document Acevedo's sexual encounters with L.G. López also
described her role in filming Acevedo's sexual encounters with
L.G., and identified both of them in the videos -- obtained from
7
The initials, "L.G.," are used to protect the victim's identity.
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the seized hard drive -- that were played for the jury. L.G.
likewise identified the seized webcam and computer as the devices
with which Acevedo and López recorded Acevedo's sexual encounters
with her, and identified herself and Acevedo in the videos shown to
the jury.
The Government also presented the testimony of Cen and
Lang to establish the jurisdictional element of the offense. The
prosecution tendered Lang as an expert in the area of computer
forensics, especially retrieval and preservation of electronic
evidence, without objection by Acevedo, who also declined an
invitation to voir dire. Cen and Lang each testified at trial
concerning the origins of the hard drive and webcam, and their
testimony served as the only evidence introduced at trial
supporting the jurisdictional element of the Government's charge.
Specifically, the Government asked Lang as to the hard drive's
manufacturing location:
Q: And where was this hard drive made?
LANG: [K]orea.
****
Q: And is that webcam compatible with the
webcam you have described was used to create
those videos?
LANG: Yes.
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Q: Now, where was that webcam
manufactured?
****
LANG: This webcam was made in China.
(Emphasis added.)
Cen, for his part, testified:
Q: Can you say the make of that [hard]
drive, describe it?
CEN: It's a drive -- it's a Samsung 40-gig
drive that it's, I believe -- the make -- was
made in Korea.
****
Q: And what is the country of fabrication
of this hard drive?
CEN: This is a Samsung drive that's made in
[K]orea. And it's a 40-gig -- 40 gigabyte
capacity.
(Emphasis added.)
Acevedo did not object to the Government's submission
into evidence of the hard drive or the webcam, nor did he object to
Cen's or Lang's testimonies regarding the origins of the hard drive
and the webcam at the time they were offered. In fact, Acevedo's
counsel did not cross-examine Cen at all and only cross-examined
Lang to inquire if he could tell, from the data he analyzed, who
created the videos and who accessed them after they were created.
That is, Acevedo's counsel did not probe Lang as to the basis for
his expert testimony regarding the origin of the hard drive and the
webcam.
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Instead, prior to closing arguments, Acevedo moved for a
judgment of acquittal pursuant to Fed. R. Crim. P. 29.8 Acevedo
asserted that the Government had failed to prove each element of
the charged offense beyond a reasonable doubt. In particular, he
argued that the only evidence offered concerning the interstate
commerce-element of the offense were the labels on the computer
equipment and Cen's and Lang's testimonies, which Acevedo
understood to be a Crawford violation.9
The district court denied Acevedo's Rule 29 motion,
stating that "no Crawford objection [had been] made," that Lang was
"an expert for purposes of what his testimony entailed and
specifically he was an expert in . . . computer forensics," and
that, based on Cen's and Lang's respective expertise "and the fact
that they dealt with . . . [computer evidence] hundreds of times
and ... testified as to where it was manufactured," there was
sufficient evidence for the jury to consider and make a
determination. After a recess, the district court amended its
ruling denying the Crawford argument to add "that the nature of
8
Rule 29 provides: "After the government closes its evidence or
after the close of all the evidence, the court on the defendant's
motion must enter a judgment of acquittal of any offense for which
the evidence is insufficient to sustain a conviction." Fed. R.
Crim. P. 29(a).
9
A careful review of the record reveals that the labels affixed
to the computer components in question were not submitted into
evidence as separate items. Rather, they were attached to the hard
drive and webcam that were submitted. In fact, no one had mentioned
the labels until Acevedo brought them up in his Rule 29 motion.
-8-
these [computer] labels is nontestimonial." It found that the
labels were "not made under circumstances [that] would reasonably
lead a reasonable person to infer that the statements in those
labels . . . would later be used at a trial for purposes of
prosecuting [Acevedo]." After closing arguments, the trial court
once again addressed the Crawford issue and noted that, although
Acevedo had not made a contemporaneous objection at the time of
Cen's and Lang's testimonies, it would "for all purposes" consider
Acevedo's "argument as though it had been made at the time when
these witnesses testified or before that."
On July 8, 2010, a jury convicted Acevedo of the
underlying charge, i.e., violating 18 U.S.C. §§ 2251(a) & 2. He
was sentenced to twenty-five years imprisonment (to be served
concurrently with state sentences imposed in April and December of
2010) and a twenty-year term of supervised release. Judgment was
entered on March 2, 2011. This timely appeal followed.
II. Discussion
Acevedo limits his arguments on appeal to contending that
the Government's proof regarding the jurisdictional element of 18
U.S.C. §§ 2251(a) was comprised of testimony based on inadmissible
hearsay. He argues that the testimonies of the Government's
witnesses regarding the origin of the hard drive and the webcam
constituted inadmissible hearsay because it relied on the
statements contained in the labels affixed to the same. Acevedo
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posits that, by admitting the testimonies of the Government's
witnesses, the trial court violated his Sixth Amendment rights as
articulated in Crawford v. Washington, 541 U.S. 361 (2004).
As a threshold matter, Acevedo contends that de novo
review is warranted because he made a Confrontation Clause argument
during his Rule 29 motion.10 However, the proper standard of review
is plain error since Acevedo failed to contemporaneously object to
the testimonies in question and he concedes as much in his brief.
See United States v. Rodríguez, 525 F.3d 85, 95 (1st Cir. 2008)
(plain error review applies where defendant failed to object on
hearsay grounds); United States v. Luciano,
414 F.3d 174, 178 (1st
Cir. 2005) (same for failure to raise Confrontation Clause
objection). Even though, after closing arguments, the trial court
revisited the Confrontation Clause argument posed by Acevedo,
stating that it would "for all purposes" consider his "argument as
though it had been made at the time when these witnesses testified
or before that," the lack of a timely objection cannot be cured by
a trial court's ruling to the contrary. In this Circuit, "the
contemporaneous objection rule is, for the most part, strictly
enforced," and "a belated objection does not cure the original
default." United States v. Houlihan,
92 F.3d 1271, 1298 (1st Cir.
10
We note that Acevedo does not appeal the denial of his Rule 29
motion. He challenges his conviction instead.
-10-
1996)(internal citations omitted). Therefore, plain error review is
proper.
To establish plain error, Acevedo must show "(1) 'error,'
(2) that is 'plain,' and (3) that 'affect[s] substantial rights.'"
Johnson v. United States, 520 U.S. 461, 467 (1997) (quoting United
States v. Olano,
507 U.S. 725, 732 (1993)). If he is able to
satisfy all three elements, this court, in its discretion, may
"notice a forfeited error, but only if (4) the error 'seriously
affect[s] the fairness, integrity, or public reputation of judicial
proceedings.'" United States v. Borrero-Acevedo,
533 F.3d 11, 15
(1st Cir. 2008) (quoting Johnson v. United States,
520 U.S. 461,
467 (1997)). "[T]his inquiry is substantially similar to the
standard we follow in harmless error analysis, with the added
wrinkle that the petitioner, not the Government, bears the burden
of persuasion with respect to prejudice." United States v.
Rodríguez-Adorno, No. 11-1034, slip op. at 8 (1st Cir. Sept. 12,
2012) (quoting United States v. Vázquez-Rivera,
665 F.3d 351, 363
(1st Cir. 2011)) (additional citation omitted).
Now, in tackling Acevedo's claims, we note that he
concedes in several portions of his brief that the witnesses in
this case relied on their expertise when testifying about the
origins of the computer components. He directly states, "[t]he
other source of their testimony came from their years of experience
with the make and model of the [equipment]." Acevedo goes even
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further: "[a]ssuming that the computer label is a hearsay
exception . . . , [Cen] and Lang provided testimony that did not
come from the information in the label, the source came from their
'expertise' which allowed them to recognize the make and model and
from there conclude that that type and model was manufactured [out-
of-country] and therefore shipped in foreign commerce." (Emphasis
added). This concession -- that the witnesses relied on their
expertise to assess the equipment's possible passage through
interstate commerce -- dooms Acevedo's hearsay claim. See United
States v. Martínez-Medina, 279 F.3d 105, 125 (1st Cir. 2001)
(finding that the concession regarding drug quantity made by a
defendant in a brief before this court was "fatal to his claim of
error").
Moreover, not only does Acevedo concede that Lang could
have relied on his expert testimony, but it is also clear from the
record that Lang's training and qualifications more than allowed
him to testify as to the origin of computer components with which
he had logged years of experience, and as to which he both
conducted and trained others in forensic examinations of the same.
A review of his testimony permits a reasonable inference that he
relied only on his own expert judgment in concluding that the
components had been made in Korea and China. In fact, his
testimony states that he personally worked with the hard drive and
the webcam in question during the investigation. His direct
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contact with the objects and his expertise would have allowed him
to form an opinion about their origin through a comparison of his
observations with his prior experiences evaluating such equipment.
Given that we conclude that Lang could plausibly have
relied on his own expert knowledge rather than the labels, we need
not determine whether reliance on labels to establish the
jurisdictional element of a crime would be permissible or whether
the labels themselves are admissible or testimonial. Such is not
the case before us, and we leave those difficult questions for a
future challenge, adequately brought and preserved.
Evidently, the Government could have directly asked Lang
about the basis for his opinion that the components were
foreign-made. However, the absence of that foundation does not
have, as Acevedo contends, the consequence of rendering his
conviction reversible. Lang's uncontested expert testimony alone
would have allowed the jury, after weighing it and giving it the
credibility it deemed proper, to conclude that the Government had
proven the jurisdictional element of the case beyond a reasonable
doubt. We thus find no plain error.
III. Conclusion
Based on the reasons discussed above, we affirm the
judgment of the district court.
Affirmed.
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