LIPEZ, Circuit Judge.
Zairo Ramos and three co-defendants were recorded on video engaging in sex acts with a fourteen-year-old girl. In defending at trial against a charge of aiding and abetting the production of child pornography, Ramos claimed unsuccessfully that he did not know the acts were being recorded. Invoking the insufficiency of the evidence, he presses that same argument on appeal, along with a claim that the trial judge deprived him of his right to call a key witness.
With respect to sentencing, Ramos contests the length of, and justification for, his prison term, and challenges supervised release conditions that generally forbid him from using a computer or the internet without permission from his probation officer or the court, and another supervised release condition that bars him from having any "pornographic material."
After carefully considering the record, we affirm the conviction and reject Ramos's challenges to his prison sentence. However, we agree with Ramos that United States v. Perazza-Mercado, 553 F.3d 65 (1st Cir.2009), requires us to vacate the internet, computer, and pornography supervised release conditions. Under Perazza-Mercado, these conditions are not reasonably related to Ramos's characteristics and history, and thus deprive him of more liberty than reasonably necessary to achieve the goals of sentencing. There remain several narrower computer and internet restrictions that Ramos did not challenge on appeal.
In 2010, KMV,
Among the recordings turned over to police were three videos, shot from different angles, of an incident in May or June of 2010.
At trial, Ramos conceded that he was depicted engaging in sexual acts with KMV, such as receiving oral sex, but contended that he did not know he was being filmed, and thus he could not have aided and abetted the crime of producing child pornography. The jury instructions, which are not challenged on appeal, told jurors to consider whether "the defendant was aware that recording, video recording, photographing, was taking place during the sexual conduct."
At the close of the prosecution's case, Ramos moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29. The district court denied the motion, noting in its ruling from the bench that there was a video camera visible in one of the still images from the videos, and that it was "patently clear, it's beyond any reasonable doubt, that everybody in that room knew that they were being recorded, and that cameras were being used to record."
We review de novo Ramos's preserved claim that there was insufficient evidence that he knew the sexual conduct with KMV was being recorded.
Ramos's argument at trial and on appeal is largely the same: he protested twice in the videos when it appeared someone was recording or photographing him, and it "defies logic" that someone who so strenuously objected knew there was a camera recording. He characterizes the government's case as a mere "patchwork of surmises and guesses" about the video recordings. His argument fails.
Three overlapping videos, capturing about forty-six-and-a-half minutes of relevant content, were introduced at trial. The first video, referred to at trial as Video A, was thirty-three-and-a-half minutes. Ramos first appeared in that video after about two minutes of recording. Video B, the second recording, was shot from a different angle in the room. It overlapped with most of the content of Video A, and continued recording after the camera filming Video A was turned off.
The final recording, Video C, was thirty seconds long. It was recorded at the end of the forty-six minutes of content shown at trial, and showed Ramos at the end of the bed, dressing KMV. The video zoomed in and out on KMV's breasts. Investigator Robles, who was familiar with the layout of the apartment, testified that from the angle of the camera it appeared that the person holding it was on the bed, within a few feet of Ramos and KMV. There is no indication in Video C that Ramos said anything in response to being recorded.
About twenty-nine minutes into the recorded content, Vilanova could be seen taking still photographs of a naked KMV. About a minute later, KMV grabbed a camera and began to use it to take photos of the men. When she attempted to take Ramos's photo, he said "no, not me" in Spanish. Ramos also commented in response to being recorded a few minutes later, when Vilanova took the video camera recording Video A and used it to scan around the room. When he did so, he zoomed in on KMV's vagina, then focused on Ramos. Someone in the video commented that Ramos was covering himself up in response to the camera, to which Ramos replied in Spanish that he was not covering himself, "it's that this motherfucker is recording." Video A then stopped recording. Video B continued, capturing Ramos, Rodríguez-Acevedo, and KMV as they later danced together on the bed naked. Seeing these videos, the jurors could easily have concluded that Ramos's purported protests showed simply that he did not want to be the focus of attention in a video that showed him committing a federal crime.
KMV's testimony provides further support for the jury verdict. She testified that she did not realize she was being recorded on video until "almost at the end," when Vilanova grabbed the video camera for Video A and tried to record Ramos, prompting Ramos to swear. While Ramos argues that "the cameras could not be so obvious to everyone — otherwise the victim herself would have seen them," there is ample evidence from which a jury could conclude that the defendants knew more about the cameras than KMV did. For example, KMV testified that, before the sexual contact, Ramos and others "would go to one side to talk among themselves," and "would start signaling themselves," indicating that the subsequent recording was part of a plan.
As the district court noted, there were gestures from Ramos and others in the video that, according to the government, revealed an awareness that cameras were on. For example, the government contended that in one series of gestures, Ramos was checking with Vilanova that the cameras were recording, and Vilanova confirmed and looked briefly at the camera recording Video A. The government asked the jury, as the factfinder, to interpret Ramos "pointing to the camera and laughing" during the exchange as circumstantial proof of knowledge. Ramos's counterargument — that Ramos was actually pointing at Vilanova and laughing — is simply an argument that the jury could consider and reject. It is not a reason to hold that no reasonable jury could have found Ramos guilty.
Ramos contends that the district court abrogated his Sixth Amendment right to call and cross-examine witnesses when it allowed Vilanova to invoke his Fifth Amendment privilege against self-incrimination. He thus "sets in tension two cardinal precepts: that a criminal defendant should have full opportunity to secure evidence in his own defense, and that a witness should be protected against being compelled to provide testimony that may incriminate him." United States v. De La Cruz, 996 F.2d 1307, 1312 (1st Cir.1993). A defendant's right "`to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense,'" and such a right is "`a fundamental element of due process of law.'" United States v. Gary, 74 F.3d 304, 308 (1st Cir.1996) (quoting Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967)). But the Sixth Amendment does not provide "an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence." Id. at 308-09 (quoting Taylor v. Illinois, 484 U.S. 400, 410, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988)) (internal quotation marks omitted). Thus we have held that a witness may invoke the Fifth Amendment if testifying might incriminate him on direct or cross-examination, despite a defendant's Sixth Amendment interests in presenting that testimony. See, e.g., Gary, 74 F.3d at 309; De La Cruz, 996 F.2d at 1312-13; United States v. Zirpolo, 704 F.2d 23, 25 (1st Cir.1983). An appellate court reviews favorable rulings on this invocation of the Fifth Amendment privilege for abuse of discretion. See Gary, 74 F.3d at 310.
After the close of the prosecution's case, Ramos sought to conduct a voir dire, without the jury present, to ask Vilanova whether he had told Ramos he was recording. Vilanova had been subpoenaed as a witness for the trial, and his attorney had argued in pretrial filings that he faced a danger of self-incrimination if he were to testify. Vilanova's attorney renewed this argument when Ramos sought the voir dire, highlighting the fact that Vilanova had entered a plea agreement to one count of aiding and abetting production of child pornography with respect to KMV, and one count of production of child pornography involving another minor. Awaiting sentencing by Judge Fusté, Vilanova contended that his answers on the witness stand, and potential cross-examination, could lead the court to choose a sentence longer than the seventeen years recommended in the parties' non-binding plea agreement. Vilanova also anticipated that the government might inquire about other acts on cross-examination, depending on his testimony about what he told Ramos about the recording. Vilanova's counsel pressed one additional concern, a pending "lascivious acts" case in Puerto Rico's local courts.
There was good reason for Vilanova's attorney to worry about the consequences for her client if he testified at Ramos's trial. The plea agreement's factual recitation indicated there were other times in which Vilanova participated in sex acts recorded with KMV ("[He] also admitted
Vilanova had also turned over computer hard drives during the investigation with what a forensic analyst testified was about one hundred thousand videos that Vilanova recorded.
In the district court's inquiry into Vilanova's invocation of the Fifth Amendment privilege, the prosecutor provided a specific example of a potential subject of impeachment. If Vilanova testified that he did not tell Ramos he was recording and that he thought Ramos did not know about the cameras, the prosecutor stated that he would then pursue a cross-examination based on the obvious signs that cameras were recording. Vilanova's attorney characterized this hypothetical as deeply harmful for her client at sentencing:
After further probing by the court, it thought that this concern had merit: "The more I think about it, there is a good possibility ... that Rey Vilanova, out of ignorance, out of loyalty ... to the defendant on trial, out of fear, out of whatever reason, may screw up badly if he testifies." If this were to happen, the court noted, "I may give him an adjustment [at his sentencing] for obstruction of justice." The court added that there was also a risk "that transcends this case into local cases without a doubt," and that there was further risk of information that could change the sentence on the non-binding plea deal "because of other conduct that I am not aware of."
"[T]he convicted but unsentenced defendant retains a legitimate protectable Fifth Amendment interest as to matters that could affect his sentence." De La Cruz, 996 F.2d at 1312 (internal quotation marks omitted). Here, nothing in Vilanova's plea agreement with the government would prevent the court from using Vilanova's possible answers against him at sentencing, and there is ample evidence that testimony from Vilanova — particularly on a cross-examination that might inquire about video-recording sexual acts — had a risk of linking him to other sex-related crimes.
Ramos's counterarguments are unconvincing. He contends that the court's failure to do a question-and-answer voir dire of Vilanova is reversible error. Ramos casts the district court's actions as allowing Vilanova to invoke "the Fifth Amendment on a wholesale scale," and "fail[ing] to either make a particularized finding as to the applicability of the privilege or set forth its rationale." For support, Ramos cites United States v. Castro, 129 F.3d 226 (1st Cir.1997), in which the panel wrote that the trial court "prudently required the parties to proceed in a question-and-answer format," id. at 228, and that the trial court "should make a particularized finding as to the applicability vel non of the privilege and should elucidate its rationale," id. at 230.
A district court inquires into the reasons a witness is claiming the Fifth Amendment privilege to verify that the witness is not invoking the privilege "on a blanket basis," id. at 229, and does in fact face "substantial and `real,' and not merely trifling or imaginary, hazards of incrimination." Marchetti v. United States, 390 U.S. 39, 53, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968) (quoting Rogers v. United States, 340 U.S. 367, 374, 71 S.Ct. 438, 95 L.Ed. 344 (1951)). "To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result." Hoffman v. United States, 341 U.S. 479, 486-87, 71 S.Ct. 814, 95 L.Ed. 1118 (1951). Assessing the danger that a witness faces "is a determination for the court, not the witness, to make, and [it] is subject to the discretion of the district court." United States v. Pratt, 913 F.2d 982, 990 (1st Cir.1990). In this inquiry, the court "must be governed as much by ... personal perception of the peculiarities of the case as by the facts actually in evidence." Hoffman, 341 U.S. at 487, 71 S.Ct. 814 (internal quotation marks omitted).
Thus it is crucial for a district court to inform its discretion through appropriate inquiries, particularly when the defendant's right to put on a defense is in tension with the Fifth Amendment privilege. There are various ways for a district court to properly inform itself of the nature of the Fifth Amendment claim. See Pratt, 913 F.2d at 990 (noting that the need for a particularized inquiry is "only a general rule"). Ramos's argument that a question-and-answer format is legally required elevates the form of the inquiry over its substance. Here it is clear that the district court carefully assessed the Fifth Amendment claim and informed its discretion appropriately.
Ramos next contends that if Vilanova's pending sentencing kept alive his Fifth Amendment interest, the trial court "could have simply and easily ordered a brief adjournment," sentenced Vilanova, "and then reconvened Ramos's trial." Ramos never asked the court to take this step, and his argument ignores the practical difficulties of such an approach.
At the time Ramos sought to call Vilanova as a witness, Vilanova's sentencing was about two-and-a-half months away. Vilanova had reached a plea agreement that left certain important details subject to further investigation, such as the calculation of his criminal history. It would thus have been impractical for the court to interrupt the trial and sentence Vilanova without the benefit of a presentence report.
Ramos claims that the district court did not adequately explain the reasons for its sentence, see 18 U.S.C. § 3553(c), and that it should have chosen a lower sentence given Ramos's "limited role in the offense" and his difficult upbringing. He asserts that the 188-month sentence was "both unreasonable and even draconian."
We review the imposed sentence in a two-step process, examining it first for procedural errors, and then for substantive unreasonableness. United States v. Politano, 522 F.3d 69, 72 (1st Cir.2008).
Ramos claims two forms of procedural error: failing to explain the reasons for the sentence, and failing to adequately consider the factors in 18 U.S.C. § 3553. Because these arguments are raised for the first time on appeal, our review is for plain error. See United States v. Rivera-Gonzalez, 626 F.3d 639, 646 (1st Cir.2010).
Section 3553(c) requires the district court to "state in open court the reasons for its imposition of [a] particular sentence." Here the court's sentencing guidelines calculation — a total offense level of thirty-six, and a criminal history category
Here, we can compare the presentence investigation report and the sentencing transcript to understand the district court's reasoning behind its sentence. The presentence report contained this paragraph explaining that the characteristics of the offense, and particularly the vulnerability of the victim, could justify a higher sentence:
The next paragraph outlined mitigating factors with respect to Ramos's troubled upbringing that "might have negatively impact[ed] him and his judgment."
After that exchange, the court stated that it would "do what we did with the other two [co-defendants]" and "use the lower end of the guidelines." At the time, co-defendants Rodríguez-Acevedo and Vilanova had been sentenced to 210 and 180 months respectively, while Gonzáles-Morales, the fourth co-defendant appearing in
The court's comments, in the context of the parties's arguments and the presentence report, offer several reasons for the chosen sentence. The court considered the nature and seriousness of the offense by highlighting various ways that the victim was vulnerable, see 18 U.S.C. § 3553(a)(1) & (2), it acknowledged the defendant's claim of his own troubled upbringing, see id. at (a)(1), and it returned to a fundamental distinction between offender and victim — "He's an adult" — to justify a sentence at the low end of the recommended range.
Ramos also attacks the substantive reasonableness of the sentence, arguing that he had a "difficult background and limited role in the offense," and the court never considered "a sentence that was sufficient, but not greater than necessary," 18 U.S.C. § 3553(a). He reiterates that he did not know he was being recorded, that there was no evidence he sought to retain or distribute the recordings, and that, unlike Vilanova, he did not possess any child pornography.
A district court has wide discretion in its sentencing decisions. The "linchpin of a reasonable sentence is a plausible sentencing rationale and a defensible result." United States v. Martin, 520 F.3d 87, 96 (1st Cir.2008). Here, Ramos's argument about his lack of knowledge of the recording is at odds with what we have already held was a sufficiently supported jury verdict. His arguments for leniency based on his background, and on his lesser involvement when compared to Vilanova, "may be well-founded, but they are ultimately unavailing" because district courts have the latitude to "emphasize the nature of the crime over the mitigating factors," and such a "choice of emphasis ... is not a basis for a founded claim of sentencing error." United States v. Zapata, 589 F.3d 475, 488 (1st Cir.2009) (internal quotation marks omitted).
Ramos objected at sentencing to limitations on his use of a computer and his use of the internet during the ten-year term of supervised release that would follow his prison term of fifteen years and eight months. Because he preserved the issue, we review his arguments on appeal for abuse of discretion. Perazza-Mercado, 553 F.3d at 69.
Ramos also raises on appeal a new argument that the court's prohibition on
Ramos's presentence report recommended that he "not have access" to the internet "at his place of residence, unless approved" by probation. This condition appears to have been redundant in light of a second, broader condition proposed in the report that Ramos "shall not possess or use a computer, cellular telephone, or any other device with internet accessing capability, at any time or place without prior approval from the probation officer."
At sentencing, the district court imposed the proposed ban on possessing or using a computer, cell phone, or other device that can access the internet without prior approval from the probation officer, thereby covering the presentence report's proposed general ban on internet access at home. The court also added two conditions that ban using or possessing computers without court approval, thereby suggesting that approval of such uses could come either from a probation officer or the court.
The court gave its only justification for the computer and internet conditions after Ramos's counsel objected to them. Ramos's counsel contended that "the evidence at trial did not show [he was] either using a computer or using the internet or using any sort of device like that." The court replied:
The court also added a further condition, not mentioned in the presentence report, that Ramos "will not possess any pornographic material unless approved by the probation officer, which of course they won't." Ramos's attorney did not object to
The purposes of supervised release mirror the purposes of sentencing generally: "to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense," 18 U.S.C. § 3553(a)(2)(A); "to afford adequate deterrence to criminal conduct," id. § 3553(a)(2)(B); "to protect the public from further crimes of the defendant," id. § 3553(a)(2)(C); and the need "to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner," id. § 3553(a)(2)(D).
A court applies 18 U.S.C. § 3583(d) and U.S.S.G § 5D1.3(b) to review special conditions. This statute and section of the sentencing guidelines require "that special conditions cause `no greater deprivation of liberty than is reasonably necessary' to achieve the goals of supervised release," and "that the conditions be `reasonably related' both to these goals and to the `nature and circumstances of the offense and the history and characteristics of the defendant,'" Perazza-Mercado, 553 F.3d at 69 (quoting 18 U.S.C. § 3583(d)(1)-(2)). See also 18 U.S.C. § 3553(a)(1).
In Perazza-Mercado, we reviewed a special condition that barred the defendant from using the internet at home during his fifteen years of supervised release. The defendant, convicted of unlawful sexual contact with a minor, had no history of using the internet to view child pornography or contact minors inappropriately, and did not use the internet in committing his crime. He thus contended that such a ban would not advance the sentencing goals of deterrence or protecting the public, and instead would unnecessarily harm his ability to use the internet for purposes related to rehabilitation. 553 F.3d at 70.
In our analysis, we noted that "an undue restriction on internet use renders modern life — in which, for example, the government strongly encourages taxpayers to file their returns electronically, where more and more commerce is conducted on-line, and where vast amounts of government information are communicated via website — exceptionally difficult." Id. at 72 (internal quotation marks omitted). A total ban on internet use at home was thus inconsistent with the vocation and education goals of supervised release. It prevented, for example, such vital tasks as looking for job postings when at home. We were also mindful that a defendant's supervised release conditions only take effect after completion of the prison sentence. Id. at 73. There is ample reason to believe that it will become harder and harder in the future for an offender to rebuild his life when disconnected from the internet at home.
Our opinion in Perazza-Mercado further relied on the availability of narrowly tailored tools for reaching the appropriate balance between monitoring an offender in order to protect the public, while still allowing him some reasonable internet access. Just as conditions forbid a defendant from working with children as part of his job, or living or loitering near areas whether children gather, "modern technology permits[] an internet prohibition which would essentially replicate these real-world limitations." Id. at 74. Modern monitoring techniques include software installed on a computer to track usage, as well as relying on data from a user's internet service provider. These are important tools for a court to consider for an offender who, as we noted repeatedly in Perazza-Mercado, did not use the internet for his crime, and has not used
Ramos's case raises two variations from the facts of Perazza-Mercado.
This authority of probation or a future court to modify a sweeping ban on computer or internet use does not immunize the ban from an inquiry that evaluates the justification for the ban in the first instance. Otherwise, in the guise of delegation to a future decision-maker, sentencing courts could abdicate their responsibility to assess the compatibility of supervised release conditions with the goals of sentencing. To approve problematic conditions because a judge or a probation officer might, in her or his discretion, relax them in the future, undermines the command to sentencing courts to not deprive offenders of more liberty than is necessary to carry out the goals of supervised release.
The district court did not cite evidence in the record that Ramos used a computer or the internet in any way in connection with the offense, nor did it identify past impermissible uses that justified generally barring him from using a computer or the internet for ten years.
Of course, access to a computer and the internet can facilitate such crimes. But the fact "[t]hat an offense is sometimes committed with the help of a computer does not mean that the district court can restrict the Internet access of anyone
We note that cases in other circuits are in general accord: where a defendant's offense did not involve the use of the internet or a computer, and he did not have a history of impermissible internet or computer use, courts have vacated broad internet and computer bans regardless of probation's leeway in being able to grant exceptions. Compare, e.g., United States v. Crume, 422 F.3d 728, 733 (8th Cir.2005) (vacating ban on computer and internet access where the offender did not use a computer or the internet in his offense but the probation officer did have discretion to relax the ban); United States v. Freeman, 316 F.3d 386, 391-92 (3d Cir.2003) (same), with United States v. Love, 593 F.3d 1, 12 (D.C.Cir.2010) (affirming ban on internet access, where offender sent child pornography online and where probation officer would have discretion to relax the ban); United States v. Ristine, 335 F.3d 692, 696 (8th Cir.2003) (same); United States v. Rearden, 349 F.3d 608, 621 (9th Cir.2003) (same); United States v. Miller, 665 F.3d 114, 117, 133-34 (5th Cir.2011) (same, where offender received child pornography online). The district court's reasoning would impermissibly create a categorical rule allowing broad limitations on computer and internet use simply because the offense of conviction involved child pornography. See Perazza-Mercado, 553 F.3d at 77 ("The Sentencing Commission creates such generally applicable conditions of supervised release, not appellate judges.").
The government labors to fill the void of justification for the computer and internet restrictions. For example, it notes that Ramos admitted to looking at adult pornography, has some familiarity with computers, and did computer repair work in his housing project. "It is significant that other co-defendants possessed child pornography in their personal computers,"
These arguments ignore the absence of evidence of Ramos using a computer or the internet in the commission of his crime, and the lack of any indication that Ramos had used a computer or the internet for illegal purposes, such as viewing child pornography, or improperly contacting minors. The prosecutor released Ramos's computer to his family because there was no child pornography found on it, and there is no indication in the record that his tablet contained child pornography, or that he likely repaired or had access to the computers of the co-defendants in this case. In short, the government's contentions
Importantly, the computer and internet conditions that Ramos did not challenge on appeal include monitoring and filtering systems, searches of any computer equipment, and searches of other electronic or data-storage devices upon reasonable suspicion. These conditions are narrowly tailored tools that further undercut the argument for any broader internet and computer ban in this case.
At sentencing, the district court added a special condition, not sought by the government, that Ramos "will not possess any pornographic material unless approved by the probation officer, which of course they won't." The court did not separately explain the reason for that condition, and the defendant did not ask for an explanation. We think it reasonable to infer, however, that the court saw some unstated connection between viewing adult pornography and the child pornography offenses here. In that sense, the court probably drew on the justification it offered for the sweeping ban on internet and computer use — "when you commit this kind of offense and the offense involves minors ... there may be a connection between that kind of conduct and the use of the internet for other purposes which are also sexually oriented or in that sense relate to the offense." Again, the court cited no evidence specific to this case or in behavioral studies supporting the connection that the court suggests "may" exist between watching adult pornography and the production of child pornography.
For the reasons stated, we
About two months later, co-defendants Encarnación-Ruiz and Gonzáles-Morales were sentenced. Neither one had conditions imposed that banned using the internet or computers without probation approval, despite presentence reports that had recommended such conditions. In Encarnación-Ruiz's case, he filed written objections to the initial presentence report. He contended, as Ramos did, that the internet and computer bans were not reasonably related to his offense or characteristics. It appears the probation officer agreed with Encarnación-Ruiz's objections because the challenged conditions did not appear in the final presentence report submitted to the court. For Gonzáles-Morales, his presentence report stated that a digital storage card that he owned had two videos of child pornography. The record does not show that he ever objected to the presentence report's recommended ban on using any computer or devices with internet capability. Yet no such condition appears in his judgment of conviction.
These inconsistencies in the imposed sentencing conditions for the co-defendants further undermine the government's rationale for imposing on Ramos the sweeping bans on computer and internet use.