TORRESEN, District Judge.
After a jury trial, the appellant, Steven Soto, was convicted on all counts of a seventeen-count indictment charging mail fraud, wire fraud, bank fraud, and aggravated identity theft.
We begin with Soto's second argument because it allows us to describe the fraudulent scheme behind all of the charges. Soto contends that there was insufficient evidence that he knew that the identification he fraudulently used to purchase four motorcycles actually belonged to another person. Because Soto challenges the sufficiency of the government's proof at trial, we recite the facts in the light most favorable to the jury's verdict. United States v. Valerio, 676 F.3d 237, 240-41 (1st Cir. 2012).
On March 27, 2006, Soto brought his girlfriend, Yessica Amaro, to Motorcycles of Manchester (MoM's) in New Hampshire. Soto purchased a 2003 Suzuki motorcycle for Amaro, who was posing as "Christine Escribano." Soto told the office manager at MoM's that he would bring Escribano's license when he came to pay and retrieve the motorcycle the next day. Although Soto neglected to produce Escribano's license, MoM's completed the sale in the name of Christine Escribano on March 28, 2006. On April 1, 2006, Soto and Amaro repeated the scheme at Kelly Power Sports in Danvers, Massachusetts. This time they produced Escribano's driver's license, which a salesperson photocopied, and they purchased another 2003 Suzuki motorcycle. On April 6, 2006, Soto and Amaro continued the charade at North Reading Motor Sports in North Reading, Massachusetts, once again using Escribano's driver's license to purchase two Honda motorcycles. The manager at North Reading Motor Sports made a photocopy of Escribano's license for his records.
Soto paid for the motorcycles with counterfeit cashier's checks, and the dealerships applied for title and registration for the motorcycles with the Massachusetts Registry of Motor Vehicles (RMV) in Escribano's name. Soto then sent counterfeit notarized affidavits
Christine Escribano testified that she had lost her driver's license, and she identified her license from the photocopy made by one of the motorcycle dealerships.
Soto also purchased three automobiles posing as Gregory Bradley, a friend of Soto's who was incarcerated at the time. Soto produced Bradley's driver's license to buy the cars and to obtain financing for the car purchases. Because Soto is not contesting the sufficiency of the evidence supporting the charges related to the car purchases, we need not describe this scheme in detail.
At the conclusion of the government's case-in-chief, Soto moved for a Rule 29 judgment of acquittal, arguing in relevant part that there was insufficient evidence that he knew that Escribano was a real person. The district court orally denied the motion. Soto renewed the motion at
We review the district court's denial of a Rule 29 motion de novo. Valerio, 676 F.3d at 243. We must uphold the denial if, taking the evidence at trial in the light most favorable to the jury's verdict, a rational factfinder could find that the government proved each essential element of the crime beyond a reasonable doubt. Id. at 244. Soto was convicted under 18 U.S.C. § 1028A, which states:
18 U.S.C. § 1028A(a)(1). Under this statute, the government was required to prove beyond a reasonable doubt that Soto knew that the means of identification that he used belonged to another person. Flores-Figueroa v. United States, 556 U.S. 646, 657, 129 S.Ct. 1886, 173 L.Ed.2d 853 (2009). The government need not have direct evidence of knowledge; circumstantial evidence can be sufficient. Valerio, 676 F.3d at 244.
Soto argues that the evidence proved only that he possessed the license, not that he knew that the license was that of another person. Viewed cumulatively, the government's circumstantial evidence was sufficient for a rational jury to find beyond a reasonable doubt that Soto knew that the license belonged to another person.
First, the government introduced the photocopy of Escribano's license made by North Reading Motor Sports into evidence. The driver's license contains a banner with the word "Massachusetts" and the state's silhouette and seal. The license has a number, date of birth, vehicle classification, height, sex, address, and expiration date. The license bears Escribano's signature and contains two photographs — one larger and the second lighter and smaller, obviously some type of security feature. The license also bears the signature of the registrar running up the lefthand side of the larger photograph. The license bears a small heart, designating an organ donor. Nothing about the license suggests it is counterfeit or fake. A modern Massachusetts driver's license is a sophisticated identification document with a number of security features. Unlike social security cards or birth certificates — printed on card stock or paper — a Massachusetts driver's license cannot be easily forged. We believe that the license alone provides strong evidence of its own authenticity. Soto, himself a Massachusetts resident and driver, would have been familiar with the features of an authentic Massachusetts driver's license.
Second, Soto's willingness to use Escribano's license to purchase expensive vehicles suggests that he knew that the document was authentic. Two of the dealerships actually copied the license for their files. The fact that Soto knew that the license might be subjected to scrutiny by the dealerships supports the inference that he knew that the license belonged to a real person. See Valerio, 676 F.3d at 244-45 (defendant's willingness to subject means of identification to government scrutiny evidence of defendant's knowledge).
Finally, the government produced evidence at trial that all of the other people who Soto involved in his schemes were real people. Soto forged the notary stamp from a notary he previously used; he assigned
The government produced evidence beyond the mere possession of Escribano's license. Cumulatively, the evidence was sufficient to allow a reasonable jury to conclude beyond a reasonable doubt that Soto knew Escribano's license actually belonged to another person. We affirm the district court's denial of Soto's Rule 29 motion.
The day before trial, Soto moved to suppress incriminating evidence found on a laptop computer seized in an inventory search of one of the automobiles Soto purchased using Bradley's identity. Soto argued in his motion that the seizure violated his Fourth Amendment rights. The district court held a hearing and denied the motion.
At trial, Special Agent Michael Pickett of the United States Secret Service testified about a computer forensics examination he had conducted on the seized laptop. Agent Pickett first testified generally about how a forensics examination is conducted and then identified Exhibit 30 as the hard drive removed from the laptop. Agent Pickett explained that another forensics examiner, John Murphy, had done a forensics examination before him. Agent Pickett testified: "I took the hard drive out of this laptop, I made my own image and I examined the image of the hard drive and I confirmed that everything that was in John Murphy's report was exactly the way he said it was."
Agent Pickett identified Exhibit 20, which consisted of several documents that were found on the hard drive of the laptop,
The government then offered Exhibit 20, and Soto's counsel stated: "Judge, for the record I have to object pursuant to a previous motion I made to the Court, but I do that only for the record." The court admitted Exhibit 20 into evidence.
On cross-examination, Agent Pickett testified:
At the end of his testimony, Agent Pickett testified:
Because Soto did not raise a contemporaneous Sixth Amendment objection to Agent Pickett's testimony, we review the district court's admission of Agent Pickett's testimony for plain error. See Fed.R.Crim.P. 51(b), 52(b); United States v. Mercado, 412 F.3d 243, 247 (1st Cir. 2005).
United States v. Acevedo-Maldonado, 696 F.3d 150, 156 (1st Cir.2012) (other internal quotations omitted).
The Sixth Amendment states: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him...." U.S. Const. amend. VI. In Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court held that the Sixth Amendment bars the "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify and the declarant had had a prior opportunity for cross-examination."
A critical part of the Crawford holding
Davis v. Washington, 547 U.S. 813, 821, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) (internal citation omitted). As we have previously explained:
United States v. Phoeun Lang, 672 F.3d 17, 22 (1st Cir.2012).
In Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309-11, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), the Supreme Court held that an affidavit reporting the results of the state's drug analysis falls within the "core class of testimonial statements," and the defendant must be afforded his constitutional right to confront the analysts. In Bullcoming v. New Mexico, ___ U.S. ___, 131 S.Ct. 2705, 2713, 180 L.Ed.2d 610 (2011), the Court held that a certified blood alcohol content report can be used against the defendant only if the defendant has the opportunity to confront at trial the analyst who performed, observed, or supervised the forensic examination. The Court explained: "In short, when the State elected to introduce [the analyst's] certification, [the analyst] became a witness Bullcoming had the right to confront." Id. at 2716. The Sixth Amendment was not satisfied by a "surrogate" witness who was familiar with the lab's practices but who had formed no independent opinion concerning the forensic examination results. Id. at 2715-16; see also United States v. Ramos-González, 664 F.3d 1, 5-6 (1st Cir.2011). "Accordingly, the analysts who write reports that the prosecution introduces must be made available for confrontation...." Bullcoming, 131 S.Ct. at 2715.
Finally, in Williams v. Illinois, ___ U.S. ___, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012), the Supreme Court tackled the constitutionality of allowing an expert witness to discuss a non-testifying expert's statements when the non-testifying expert's statements are not admitted in evidence. Justice Alito, Chief Justice Roberts, Justice Kennedy, and Justice Breyer reasoned that the non-testifying expert's statements could be discussed by the testifying expert because the non-testifying expert's statements were not offered for their truth, but only to explain the assumption on which
Soto's argument on appeal is that Agent Pickett testified as a surrogate witness and a conduit for Agent Murphy's report in violation of the Confrontation Clause. He also argues that allowing Agent Pickett to testify about Agent Murphy's conclusions subverted his right to confront Agent Murphy and unfairly bolstered the Government's evidence by indicating that the forensic results were verified by two agents.
Agent Pickett did not testify as a surrogate witness for Agent Murphy. Bullcoming provides guidance. Bullcoming was pulled over and arrested for driving while intoxicated. At trial, the government introduced into evidence a laboratory report certifying that Bullcoming's blood alcohol content was above the legal limit. The report was authenticated at trial by an analyst who was familiar with the laboratory's testing procedures but otherwise had nothing to do with the test. Bullcoming, 131 S.Ct. at 2709. The Court explained that the testifying analyst provided impermissible "surrogate testimony" because the testifying analyst had no knowledge about the test of Bullcoming's blood alcohol content or the analyst who performed the test. Id. at 2715. "Nor did the State assert that [the testifying analyst] had any `independent opinion' concerning Bullcoming's BAC." Id. at 2716.
Unlike in Bullcoming, Agent Murphy's forensic report was not introduced into evidence through Agent Pickett. Agent Pickett testified about a conclusion he drew from his own independent examination of the hard drive. The government did not need to get Agent Murphy's report into evidence through Agent Pickett. Cf. Bullcoming, 131 S.Ct. at 2716; Ramos-González, 664 F.3d at 6 (finding Sixth Amendment violation where testifying expert recited non-testifying analyst's conclusion that substance contained cocaine and provided no independent opinion about nature of substance). We do not interpret Bullcoming to mean that the agent who testifies against the defendant cannot know about another agent's prior examination or that agent's results when he conducts his examination. The government may ask an agent to replicate a forensic examination if the agent who did the initial examination is unable to testify at trial, so long as the agent who testifies conducts an
Soto's argument that Agent Murphy's report bolstered Agent Pickett's testimony hits closer to the mark. At trial, Agent Pickett testified that the incriminating documents in Exhibit 20 were found on a laptop that was seized from Soto's car. Although Agent Pickett had independent knowledge of that fact, he testified that "everything that was in John Murphy's report was exactly the way he said it was," and that Exhibit 20 "was contained in the same folder that John Murphy had said that he had found it in." "[I]f what the jury hears is, in substance, an untested, out-of-court accusation against the defendant ... the defendant's Sixth Amendment right to confront the declarant is triggered." United States v. Meises, 645 F.3d 5, 21 (1st Cir.2011). These two out-of-court statements attributed to Agent Murphy were arguably testimonial and offered for their truth. Agent Pickett testified about the substance of Agent Murphy's report which Agent Murphy prepared for use in Soto's trial. Agent Murphy's conclusion in his report, which Agent Pickett repeated, was offered to show that the Exhibit 20 documents were located on the hard drive of the laptop seized from Soto's vehicle. Agent Pickett's testimony about Agent Murphy's prior examination of the hard drive bolstered Agent Pickett's independent conclusion that the Exhibit 20 documents were found on Soto's hard drive.
But this Confrontation Clause violation was not plain error. Had counsel for Soto made a contemporaneous Sixth Amendment objection or objected to Agent Murphy's absence, the trial court could have given a curative instruction, or the government could have produced Agent Murphy to testify. See Ramos-González, 664 F.3d at 4 (objection to absence of chemist who performed drug analysis sufficient to raise Confrontation Clause issue). Furthermore, Agent Murphy's out-of-court testimonial statements linking Soto to the Exhibit 20 documents were entirely cumulative of Agent Pickett's in-court testimony regarding his own independent examination. The admission of Agent Pickett's statements about the conclusions in Agent Murphy's report did not affect Soto's substantial rights. We conclude that there was no plain error.
For the reasons discussed above, we affirm Soto's convictions on all counts.
