United States v. Vazquez-Soto

United States Court of Appeals
For the First Circuit

No. 17-1879

UNITED STATES OF AMERICA,

Appellee,

v.

RODOLFO VÁZQUEZ-SOTO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Gustavo A. Gelpí, Chief U.S. District Judge]

Before

Torruella, Lipez, and Thompson,
Circuit Judges.

Jessica E. Earl, Research and Writing Specialist, with whom
Eric Alexander Vos, Federal Public Defender, and Vivianne M.
Marrero, Assistant Federal Public Defender, Supervisor, Appeals
Section, were on brief, for appellant.
Francisco A. Besosa-Martínez, 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.

October 1, 2019
 LIPEZ, Circuit Judge. After a six-day trial and four

days of deliberation, a jury convicted appellant Rodolfo

Vázquez-Soto on two counts of making false statements and one count

of theft of government property. See 18 U.S.C. §§ 1001, 641, 2.

The district court sentenced him to five years' probation and

ordered him to pay restitution in the amount of $19,340.79.

Vázquez-Soto appeals his convictions on all counts, arguing that

the district court (1) erred in denying his motion for a judgment

of acquittal because the evidence was insufficient to sustain his

convictions; (2) abused its discretion in admitting into evidence

photographs taken from a Facebook page under the name of his ex-

wife; and (3) further abused its discretion when it declined to

provide the jury with the transcript of certain witness testimony

and did not inform the jury that it could request a readback of the

testimony. We conclude that sufficient evidence supported Vázquez-

Soto's convictions, and that the district court did not abuse its

discretion in allowing admission of the challenged Facebook photos

despite an authentication objection or in its response to the jury's

request for a transcript. Accordingly, we affirm.

I.

A. Factual Background

"Because this appeal pertains, in part, to the

Defendant['s] motion[] for acquittal before the district court, we

recount the facts here in the light most favorable to the

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government." United States v. Fernández-Jorge, 894 F.3d 36, 41

(1st Cir. 2018) (internal quotation marks omitted). Vázquez-Soto

was a mail carrier for the United States Postal Service ("USPS")

with a long history, supposedly, of back problems for which he

received substantial disability benefit payments for many years.

His problems began in 1989 when he suffered a back injury while

lifting a heavy tray at work. He filed a claim with the Department

of Labor's Office of Workers' Compensation Programs ("OWC"),

supported by medical documentation of the injury and a

recommendation of physical therapy. The OWC accepted the claim and

granted him forty-five days of paid leave.

Following his return to work, Vázquez-Soto was granted

limited work duty and accommodations for his back pain. For the

next nine years, Vázquez-Soto worked for the USPS with limited duty

assignments. He was annually examined by a physician, Luis Faura-

Clavell ("Dr. Faura"), and, each year, he submitted the requisite

OWC paperwork documenting his continuing need for a limited duty

assignment.1 Then, in 1998, he filed a recurrence claim, asserting

that his original condition had worsened. He was evaluated by two

1 To receive disability benefits, an injured government
employee must "submit to examination by a medical officer of the
United States . . . after the injury and as frequently and at the
times and places as may be reasonably required." 5 U.S.C.
§ 8123(a).

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doctors, selected by the OWC, and each recommended that he could

continue working with a reduced schedule and accommodations.

The next year, Vázquez-Soto filed another recurrence

claim, again asserting that his condition had worsened. In April

1999, he was examined by Dr. Faura, who reported him as totally

disabled and incapable of even limited duty work. Dr. Faura

submitted the requisite OWC paperwork stating that Vázquez-Soto was

totally disabled and recommending retirement. Although the OWC

initially rejected Vázquez-Soto's claim of total disability, it

reversed its position in 2001, and accepted the claim retroactively

to April 1999. Accordingly, it paid Vázquez-Soto total disability

payments from the date of Dr. Faura's April 1999 letter, and

determined that he would be paid full disability benefits going

forward.

For over a decade, Vázquez-Soto filed annual claims of

total disability, Dr. Faura submitted supporting documentation, and

Vázquez-Soto collected disability payments. In 2012, the USPS

Office of Inspector General began investigating those claims for

possible fraud. As part of the investigation, the OWC instructed

Vázquez-Soto to report to a new doctor, Fernando Rojas-Díaz ("Dr.

Rojas"), for a second medical opinion. After examining Vázquez-

Soto in February 2013, Dr. Rojas reported inconsistencies between

Vázquez-Soto's apparent physical condition and his clinical

complaints. The doctor concluded that, although Vázquez-Soto was

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disabled, he was capable of returning to his "date-of-injury [] job

but with restrictions."

The investigating agent assigned to Vázquez-Soto's case

also examined his compensation history and found that, although

Vázquez-Soto had received $448,000 in benefits, his medical

expenses only totaled $8,000. The agent then coordinated video

surveillance of Vázquez-Soto to be conducted by FBI agents and

local agents at Vázquez-Soto's home and other locations. The

surveillance team captured video footage of Vázquez-Soto carrying

a large picture frame from his car into a building, riding a

motorcycle while wearing a heavy helmet and carrying a satchel,

driving a car, and walking and maneuvering his neck, arms, and

shoulders with ease.

Additionally, an undercover special agent, Cassandra

Cline, posed as an OWC representative and summoned Vázquez-Soto for

a "Current Capacity Evaluation," also called a "rehab interview."

During the interview, Vázquez-Soto attested to his inability to

work or drive a car for more than an hour, and his total disability.

Following the investigation, Vázquez-Soto was charged

with four counts of making false statements in violation of

18 U.S.C. § 1001 (Counts I to IV) and one count of theft of

government property in violation of 18 U.S.C. §§ 641 and 2 (Count

V). Counts II and III were subsequently dismissed by the

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government, and Vázquez-Soto proceeded to trial on Counts I, IV,

and V.

B. The Trial

At trial, the government called a series of law

enforcement agents and OWC representatives to testify about the

fraud investigation. The government also produced as evidence

surveillance videos, video of the undercover rehab interview, and

government documents, spanning many years, signed by Vázquez-Soto

and attesting to his inability to work.

One of the investigating agents, José Morales, testified

about digital photographs that he downloaded from a Facebook page

bearing the name of Vázquez-Soto's ex-wife, Carmen Rosa Janica.

Morales explained that he found the photographs when he conducted

an online "inquiry" concerning Vázquez-Soto. In conducting that

inquiry, the agent searched for Janica on social media websites,

including Facebook, and found a Facebook page under her name. On

that page, Morales discovered a series of digital photograph

albums, uploaded in 2010, that depicted Vázquez-Soto traveling in

Colombia. When he looked through these albums, he recognized

Vázquez-Soto2 and downloaded the photographs, which he kept on his

computer until the trial.

2 Morales correctly identified Vázquez-Soto at trial.

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 Though the photographs were uploaded to Facebook in 2010,

one had a 2008 date stamp. The others were not dated. The

photographs show, inter alia: (1) Vázquez-Soto and a woman dressed

in motorcycle club T-shirts standing in front of a group of

motorcycles; (2) Vázquez-Soto standing among a large group of

people dressed in motorcycle club T-shirts (with a date stamp of

12/21/08 on the photograph); (3) Vázquez-Soto among a group of

people, each wearing a motorcycle helmet and standing next to a

motorcycle; (4) Vázquez-Soto and another person on a motorcycle,

each wearing a helmet; (5) Vázquez-Soto seated on a motorcycle in

front of a large body of water; (6) Vázquez-Soto wearing a life-

jacket standing in front of palm trees and what looks like a river;

(7) Vázquez-Soto entering a paddle boat; (8) Vázquez-Soto standing

in front of a waterfall; (9) Vázquez-Soto and a woman doing what

appears to be dancing; and (10) Vázquez-Soto standing behind a

motorcycle. Defense counsel objected to the introduction of these

photographs as irrelevant, prejudicial, and not properly

authenticated. The court noted the objection but admitted the

photographs into evidence.

The government also called as witnesses Dr. Faura and

Dr. Rojas, who each testified about his prior examination of

Vázquez-Soto and whether his disability findings were consistent

with the abilities demonstrated by Vázquez-Soto in the surveillance

videos and in the photographs. Dr. Faura testified that "[i]f this

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patient is driving a motorcycle, is wearing a helmet, is holding

the motorcycle which is 400 pounds with his legs . . . he cannot

be disabled." Dr. Rojas -- when asked by the government, "how do

you explain . . . [your finding that the defendant] had those

disabilities and [] restrictions, [and] the videos that you're

looking at and the pictures?" -- testified, "I was fooled."

The defense called, as its sole witness, Dr. Rafael E.

Sein-Sierra ("Dr. Sein"). Dr. Sein testified that Vázquez-Soto has

"limited functional physical capabilities" and that the

surveillance videos did not change his assessment. He based his

testimony on a medical report, admitted into evidence, that he

authored about Vázquez-Soto's medical condition. Dr. Sein

explained that he concluded in his report that Vázquez-Soto's

condition is permanent and likely to worsen over time. Dr. Sein's

testimony lasted more than an hour and was followed by cross-,

redirect-, and re-cross-examination. After the re-cross, Vázquez-

Soto moved for a judgment of acquittal under Rule 29 of the Federal

Rules of Criminal Procedure, which the court denied.

The jury deliberated for four days. At the end of the

first day of deliberations, the jury requested a transcript of the

testimony of Dr. Sein. The district court denied the request, over

defense counsel's objection. The court also denied defense

counsel's request for a "readback" of Dr. Sein's testimony and

counsel's request that the jury be informed that it could request

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such a readback. Instead, the court instructed the jurors to rely

on their memory, notes, and Dr. Sein's report.3 On the fourth day

of deliberations, the jury returned a verdict of guilty on all

three counts. Vázquez-Soto then renewed his Rule 29 motion and

moved for a new trial under Rule 33, see Fed. R. Crim. P. 29(c),

33, which the court denied. This appeal followed.

On appeal, Vázquez-Soto argues that (1) the evidence

introduced at trial was insufficient to support his convictions,

(2) the Facebook photos should not have been admitted into

evidence, and (3) the district court should have provided the jury

with a transcript or readback of Dr. Sein's testimony, or, in the

alternative, informed the jury that it could request a readback.

We consider each argument in turn.

II.

We review a challenge to the sufficiency of the evidence

de novo, taking the evidence in the light most favorable to the

jury's verdict. United States v. Santos-Soto, 799 F.3d 49, 56-57

(1st Cir. 2015). "The verdict must stand unless the evidence is

so scant that a rational factfinder could not conclude that the

government proved all the essential elements of the charged crime

3 The sequence of events concerning the request for a
transcript or readback is described in more detail in our analysis.
See infra Section IV.

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beyond a reasonable doubt." United States v. Rodríguez-Vélez, 597

F.3d 32, 39 (1st Cir. 2010).

A. False Statements

To sustain a conviction for making false statements, the

government must prove that the defendant (1) made a material, false

statement (2) in a matter within the jurisdiction of the government

(3) knowing that the statement was false. See 18 U.S.C. § 1001;

United States v. Notarantonio, 758 F.2d 777, 785 (1st Cir. 1985).

Vázquez-Soto argues that his convictions on Counts I and IV,

charging false statements in his 2013 disability benefits paperwork

and in the rehab interview, respectively, must be vacated because

the government failed to introduce enough evidence for a reasonable

juror to conclude, beyond a reasonable doubt, that he knew that his

statements of total disability were false.4 He argues that the

evidence at trial showed that he "believed his doctors" and simply

repeated their assessments in his paperwork and rehab interview.

Evidence of a defendant's culpable state of mind may be

"gleaned from . . . circumstantial evidence presented at trial."

United States v. Troisi, 849 F.3d 490, 494 (1st Cir. 2017)

(internal quotation marks omitted). Here, the jury saw video

evidence of Vázquez-Soto engaged in strenuous activity, such as

4 Vázquez-Soto does not challenge the sufficiency of the
evidence as to any element of the false statements crimes other
than knowledge.

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carrying a large picture frame and riding a motorcycle, within days

of his statements of total disability. The jury heard testimony

from Vázquez-Soto's examining doctors that the video footage of

Vázquez-Soto and the Facebook photographs were inconsistent with

Vázquez-Soto's reports of debilitating pain. In addition, the jury

heard the testimony of Agent Cline, who conducted the rehab

interview. She testified that, during the interview, Vázquez-Soto

conveyed "the impression . . . that he cannot move his neck," and

stated that his daily activities were hampered by "muscle spasms."

The jury could compare this testimony to the video footage, taken

only days prior, which showed Vázquez-Soto wearing a heavy helmet

and maneuvering his car and motorcycle with ease. From this

evidence, the jury easily could have drawn the plausible inferences

that Vázquez-Soto was exaggerating his experience of pain -- rather

than merely repeating the diagnoses of his doctors -- and that,

when he claimed to be totally disabled in his 2013 paperwork and

rehab interview, he knew that his statements were false.

B. Theft of Government Property

Vázquez-Soto's challenge to the sufficiency of the

evidence as to Count V, charging theft of government property,

fails for the same reasons. He again attacks the adequacy of the

government's evidence as to knowledge, arguing that the government

introduced no evidence from which a reasonable factfinder could

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conclude that he knowingly accepted government benefits to which

he was not entitled. See 18 U.S.C. § 641 (requiring knowledge).

The same evidence supporting a reasonable inference that

he knew that his claims of total disability were false also supports

a reasonable inference that he knew that he was not entitled to the

government benefits that he accepted. As noted, the jury heard

Dr. Rojas's testimony that Vázquez-Soto had "fooled" him, and

Dr. Faura's testimony that Vázquez-Soto "[could not] be disabled"

and ride a motorcycle with a heavy helmet. "The jury was entitled

to credit [the doctors'] testimony" and "to rely on [the] plausible

inferences drawn from the combination of that testimony and the

government's other evidence," including the discrepancy between the

amount of money that Vázquez-Soto accepted and the amount that he

spent on medical care, and the photographs and video of him engaged

in strenuous physical activity. United States v. Domínguez-

Figueroa, 866 F.3d 481, 485 (1st Cir. 2017) (internal quotation

marks omitted). Viewed in its totality, the government's evidence

justified an inference that Vázquez-Soto intentionally overstated

his impairment to his doctors and in his OWC paperwork to receive

payments to which he knew he was not entitled.

III.

Vázquez-Soto argues that the district court erred by

admitting the Facebook photographs. Because the government

introduced no evidence that the Facebook page actually belonged to

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Vázquez-Soto's ex-wife, and because it knew only when the

photographs were uploaded to the Facebook page (2010), but not

exactly when the photographs were taken, he asserts that the

photographs were unauthenticated. See Fed. R. Evid. 901. He also

contends that the photographs were irrelevant, see Fed. R. Evid.

401, 402, and unfairly prejudicial, see Fed. R. Evid. 403. We

review these claims of evidentiary error for abuse of discretion.

United States v. Pérez-González, 445 F.3d 39, 47 (1st Cir. 2006).

A. Authentication

"The test of authenticity is straightforward." United

States v. Holmquist, 36 F.3d 154, 167 (1st Cir. 1994). "The

standard the district court must apply in evaluating a[n] [item]'s

authenticity is whether there is enough support in the record to

warrant a reasonable person in determining that the evidence is

what it purports to be." United States v. Blanchard, 867 F.3d 1,

6 (1st Cir. 2017) (internal quotation marks omitted); Fed. R. Evid.

901(a). This requirement may be met with various forms of evidence,

including "[t]estimony that an item is what it is claimed to be"

or evidence of "[t]he appearance, contents, substance, internal

patterns, or other distinctive characteristics of the item, taken

together with all the circumstances." Fed. R. Evid. 901(b)(1),(4).

1. Social Media

Vázquez-Soto argues that, because the photographs were

found on a Facebook page, we must address the evidentiary rules for

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"authenticating social media data," and that, under these rules, a

proponent of social media evidence "must present a prima facie case

. . . that [the social media evidence] is in fact a posting on a

person's Facebook page," in this case the page of Janica, Vázquez-

Soto's ex-wife. Without Janica's testimony that the photographs

came from her Facebook page, or other evidence akin to it, Vázquez-

Soto argues that the government failed to meet this requirement.

We disagree with the premise of Vázquez-Soto's argument.

The authenticity of Janica's social media account is not at issue

in this case -- that is, the account's ownership is not relevant.

The photographs were introduced as images of Vázquez-Soto on a

motorcycle trip, not as part of a social media statement by Janica.

Thus, what is at issue is only the authenticity of the photographs,

not the Facebook page.5 And, as the Sixth Circuit has observed,

5 Of course, there are cases in which ownership of a social
media account would be relevant. For instance, if a Facebook user
under the name Sally Smith posted a photograph of an empty vault
with the caption "I robbed a bank," and the government sought to
introduce a copy of that photograph and caption into evidence at
Sally Smith's trial for bank robbery, the account's authenticity
would be at issue because the Facebook post would only be a relevant
admission if the account were actually Sally's. Cf. United States
v. Vayner, 769 F.3d 125, 131 (2d Cir. 2014) (finding inadmissible
a printout from a Facebook page under the name of the defendant,
where the government presented the printout as evidence of the
defendant's statements but "did not provide a sufficient basis on
which to conclude that the proffered printout was what the
government claimed it to be -- [the defendant's] profile page").
Indeed, if a proponent of social media evidence seeks to
introduce the evidence to show that "the [social media] page or a
post is that of a particular person, authenticity standards are not
automatically satisfied by the fact that the post or the page is

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"it is not at all clear . . . why our rules of evidence would treat

electronic photos that police stumble across on Facebook one way

and physical photos that police stumble across lying on a sidewalk

a different way." United States v. Farrad, 895 F.3d 859, 879-80

(6th Cir. 2018). Accordingly, the ordinary rules of authentication

apply, and the question we must ask in assessing the district

court's ruling is whether there was sufficient evidence for a

reasonable factfinder to conclude that the photographs were what

the government represented they were -- photographs of Vázquez-

Soto.

2. The Identification of Vázquez-Soto

"A photograph's contents, buttressed by indirect or

circumstantial evidence, can form a sufficient basis for

authentication even without the testimony of the photographer or

some other person who was present at the time it was taken."

Holmquist, 36 F.3d at 169; see also id. ("A witness qualifying a

photograph need not be the photographer or see the picture taken;

it is sufficient if he recognizes and identifies the object depicted

and testifies that the photograph fairly and correctly represents

it." (quoting United States v. Clayton, 643 F.2d 1071, 1074 (5th

in that person's name . . . because someone can create a . . .
social media page in someone else's name." Hon. Paul W. Grimm et
al., Authenticating Digital Evidence, 69 Baylor L. Rev. 1, 31–32
(2017).

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Cir. 1981)). The government offered the testimony of agent Morales

that he downloaded the photographs because he recognized Vázquez-

Soto. Morales identified Vázquez-Soto in the courtroom. He then

pointed out Vázquez-Soto in each photograph and described his

behavior (e.g., "I see [Vázquez-Soto] . . . . He's wearing the

jacket and a helmet . . . . [T]he back of the helmet is a motorcycle

logo, reddish. It's the same tag number as [that] of the motorcycle

you're going to see."). In determining whether the photographs

were authentic, the jurors could examine the photographs and rely

on their own observations of Vázquez-Soto in the courtroom. Under

these circumstances, a reasonable factfinder could conclude that

the photographs depicted Vázquez-Soto. See Holmquist, 36 F.3d at

168-69.

B. Relevance

Vázquez-Soto makes two relevance arguments. First, he

contends that the photographs are irrelevant because he was charged

with making false statements in 2013, "not . . . in either 2008 or

2010." (As noted, most of the photographs were undated, while one

had a 2008 date stamp, and all were uploaded to Facebook in 2010.)

Vázquez-Soto misses the point of this evidence. Although he was

charged only with 2013 crimes, his injury occurred well before

2008, and by then he had been claiming disability benefits for

years. Vázquez-Soto's engagement in strenuous physical activity

during a time when he claimed to be totally disabled made it more

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likely that he knew that the statements he made on his 2013

disability paperwork and in the rehab interview were false.6

Second, and more broadly, Vázquez-Soto argues that the

government failed to prove that the photographs were taken during

the period when he was accepting disability benefits, as required

to establish their relevance. When the relevancy of evidence

"depends on whether a fact exists, proof must be introduced

sufficient to support a finding that the fact does exist." Fed.

R. Evid. 104(b). The necessary "conditional fact" -- here, that

the photographs were taken during the relevant time period -- needed

to be proven only by a preponderance of the evidence. United

States v. Balthazard, 360 F.3d 309, 313 (1st Cir. 2004). To meet

that standard, the government was not required to produce

conclusive evidence that the photographs were taken after Vázquez-

Soto claimed to be disabled. Rather, the question is whether the

evidence permitted such an inference. See Domínguez-Figueroa, 866

F.3d at 485.

The government's showing met the required threshold. The

photographs were uploaded in 2010, and one bore a 2008 date stamp.

Although Vázquez-Soto questions whether those dates accurately

6
Evidence is relevant under the Federal Rules of Evidence if
"(a) it has any tendency to make a fact more or less probable than
it would be without the evidence; and (b) the fact is of consequence
in determining the action." Fed. R. Evid. 401 (emphasis added).

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depict when the photographs were taken, it was up to the jury to

evaluate the evidence of timing.7 See id. at 486 (noting that

"[t]he fact that the government could not provide an exact date for

[] photos [introduced into evidence]" did not affect admissibility

but "was for the jury to weigh"). The photographs that were not

date-stamped included similar features to the stamped photograph

(e.g., the same individuals in the same clothing). In addition,

the jury could judge for itself from the photographs and Vázquez-

Soto's appearance in the courtroom approximately how much time had

passed between when the photographs were taken and the time of the

trial. Under these circumstances, a reasonable factfinder could

conclude that it was more likely than not that the photographs were

taken during the relevant time period.

C. Prejudice

Under Rule 403 of the Federal Rules of Evidence, relevant

evidence may be excluded "if its probative value is substantially

outweighed by a danger of . . . unfair prejudice." Fed. R. Evid.

403 (emphasis added). Here, although the photographs were

prejudicial "in the sense that they were damaging [to the

defendant]," Pérez-González, 445 F.3d at 47, Rule 403 concerns only

unfair prejudice -- that is, "an undue tendency to suggest decision

7Vázquez-Soto did not object to the date stamp on hearsay
grounds at trial and does not raise the issue on appeal. We
therefore do not address the viability of such an argument.

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on an improper basis, commonly, though not necessarily, an

emotional one," Old Chief v. United States, 519 U.S. 172, 180 (1997)

(quoting Advisory Committee's Notes on Federal Rule of Evidence

403, 28 U.S.C. App., p. 860). The photographs are not the sort of

"shocking or heinous" evidence that was "likely to inflame the

jury" to decide the case on an improper basis, such as an emotional

ground. United States v. Moccia, 681 F.2d 61, 64 (1st Cir. 1982).

Moreover, the jury saw surveillance video evidence of Vázquez-Soto

engaged in similar conduct as that in the photographs, e.g., riding

his motorcycle with a heavy helmet. In terms of subject matter,

the photographs were just more of the same.

IV.

Vázquez-Soto argues that the district court erred when

it denied the jury's request for a transcript of the testimony of

Dr. Sein and declined to inform the jury that it could request a

readback of the testimony. Our review is for abuse of discretion.

See United States v. Rodríguez, 457 F.3d 109, 119-120 (1st Cir.

2006) (concerning request for transcript); United States v.

Boulerice, 325 F.3d 75, 85 (1st Cir. 2003) (concerning request for

readback).

A. Background

The jury requested the transcript of Dr. Sein's testimony

at the end of the first day of its deliberations in a note submitted

to the court. The court consulted with counsel (outside the jury's

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presence) and indicated its inclination to deny the request,

explaining that "there [was] no official transcript yet" and it

would take time "to formally prepare" -- possibly "a day or two or

three." It proposed telling the jurors to rely on their memory of

the testimony, which had been given just the day before. The court

noted that "[t]his is not a seven-month trial or a very lengthy

testimony," and it indicated concern about an unnecessary delay in

the proceedings. The government agreed that the jurors should be

told to rely on their notes and memory, and defense counsel urged

the court to provide a transcript because of the technical nature

of Dr. Sein's testimony.

The court and parties then discussed whether the jurors

had in fact been seeking a readback of the testimony rather than a

physical transcript, as well as whether they wanted to review all

of Dr. Sein's testimony or only a portion of it. The court observed

that providing either a transcript or readback would extend the

trial into the next week because of his schedule and because, "even

before a readback[,] the parties have to have an opportunity to

review [the] transcript," which would probably take at least

twenty-four hours.8 Ultimately, the court decided to "inform the

8 Neither party disagreed with the court's statement that even
a readback would require a delay of at least a day. The court
reporter described the necessary preparation as follows:
What happens is that I provide, as [defense
counsel] is saying, a rough draft of the
transcript with the entire testimony minus the

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[jurors] that they're not entitled to see the transcript itself,

that they do have the report [of Dr. Sein], that they have their

notes . . . . And if they say [that] [i]f we cannot [have] the

transcript then we would ask for a readback or something, then I

will review that."

The court thus instructed the jurors as follows:
Let me inform you that [the] transcript
[of Dr. Sein's testimony] is not available
at this time, and transcripts are not
provided to the jury and what you want to
see is the transcript. What you do have is
the report of Dr. [Sein] which you can
review. And you also have your jury notes
of his testimony, as well as your memory of
what he testified. So, there is no
transcript. I cannot provide a transcript
at this time, so that's what I have to say
about that matter.
So, continue your deliberations. What
I would ask is that before you leave now,
. . . if there's anything else you wish me
to clarify or request, go back to the jury
room and within the next five minutes send
me another note. I will excuse you after
that. And if you don't have anything else
to add, just send me a note just telling me,
Judge, we're done for the day, we'll be back
tomorrow. And if you do have a note, I'll

objections and colloquy. You'd review it, and
once you all approve it that is what I read to
them.

Although the parties did not suggest a different process to the
district court, a readback of testimony may not require preparation
of a transcript in every instance. It may be possible, for example,
for a court reporter to "accurately read[] back from her
stenographic notes." Boulerice, 325 F.3d at 85; see also id. at
84 (describing defense counsel's account that such a procedure is
used in some courts).

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 respond very, very quickly so you can all
leave.

The jury subsequently sent a note stating that it was ready

to recess until the following morning.

Late the next afternoon, while the jury continued to

deliberate, the court and counsel reconvened to discuss whether,

and when, the court should give "the modified Allen charge" --

i.e., an instruction addressing the possibility that the jury was

deadlocked. See Allen v. United States, 164 U.S. 492, 501 (1896);

United States v. Vanvliet, 542 F.3d 259, 263 (1st Cir. 2008). After

discussing the logistics if the deliberations continued into the

next day -- when the trial judge would be unavailable9 -- all agreed

that the Allen charge should wait until the end of the day, when

the jurors were expected to either reach a decision or report that

they had been unable to agree.

Defense counsel then returned to the issue of a readback,

noting that "[t]he only issue I think might be loose is whether

there should be a readback . . . based on their questions." A

colloquy followed in which the court stated that "[t]hey have to

request a readback because I told them jurors don't take transcripts

to the jury room." After defense counsel observed that "nobody has

9 The presiding trial judge had arranged for a colleague to
take the jury's verdict and deal with routine jury issues, if
necessary, but he explained that, "if it's something that is crucial
that I make the determination, it will have to wait or I will have
to address that with [my colleague]."

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told them that they have a right or the ability to request a

readback," the court responded: "I don't give them that

instruction, but if they want they're free to ask whatever, the

sky's the limit, and they're aware of it. They've asked -- and

this jury has been pretty active."

Defense counsel then "formally" requested that the jury

be notified of its right to request a readback. The court refused,

stating it had "already ruled on that." It continued:

If at some point they ask for anything
pertaining to the transcript or any
clarification or anything then I will alert
them that if what they're asking is a readback
they have to tell me exactly that, that they
want a readback. But from my explanation I
say, if you need anything else, just let me
know. . . . [T]hey haven't inquired as to
that. That was early on and they've
continue[d] to deliberate for over a day. So,
let's see what happens[.]

At 9:48 PM, the jurors alerted the court that they had

been unable to reach a verdict. The court and counsel again

conferred; they considered whether the court should give the

modified Allen charge or whether the jury should be considered

hung. Defense counsel asked that the jurors be given the Allen

charge the next morning and that the court also provide a readback

of Dr. Sein's testimony. He noted that the jurors "are looking for

something they have not found, and that request was never complied

with." Defense counsel "urg[ed] the Court to consider the readback

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because if they don't know to ask for it, how would they know to

ask for it."

The court decided to read the modified Allen charge

immediately and to let the jurors choose whether to continue

deliberating, recess for the night, or advise the court that they

cannot reach a verdict. It gave that instruction, noting "one last

thing": "When you send me a note if you need me to clarify anything

else or have any further request please do not hesitate to ask

me[.]" The jurors chose to resume deliberations the following

morning, and they reached a verdict two days later.

B. Discussion

We begin with Vázquez-Soto's contention that the district

court erred by declining to instruct the jury that it could request

a readback. We rejected a similar claim in United States v. Aubin,

961 F.2d 980 (1st Cir. 1992), where we noted that the jury "does

not have the right to a rereading," id. at 983, and that "rereading

testimony during jury deliberations rests in the presider's sound

discretion," id. (omitting alteration) (quoting United States v.

Akitoye, 923 F.2d 221, 226 (1st Cir. 1991)). Even if the jury had

"asked for a portion of the testimony to be read back," we observed,

"the judge would have been within his discretion to refuse the

request." Id. at 984. Accordingly, we held that "the judge's

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refusal to advise the jury that it could have the testimony reread

was not error." Id.

We likewise find no abuse of discretion in the district

court's decision here not to explicitly offer the jurors a readback.

The court advised the jurors that they should "not hesitate to ask"

if they needed him "to clarify anything else or have any further

request," and, in explaining to counsel why he would not make an

explicit readback offer, the court noted that the jury had been

"pretty active" and that they were aware that "they're free to ask

whatever." In other words, the court left open a door for further

requests that it evidently deemed wide enough for this jury. Cf.

Akitoye, 923 F.2d at 227 (noting as "most important" in upholding

a judge's refusal to read back testimony that the "refusal was not

unconditional, but left the door open to renewal of the request").10

Moreover, it is apparent that the court viewed a

readback, on balance, as unnecessary and impractical in the

circumstances before it. As described above, the court noted that

neither the trial nor Dr. Sein's testimony was lengthy, that the

10There is considerable logic in defense counsel's position
that the jurors would be unlikely to request a readback if they
were not told they could do so. Nonetheless, our caselaw leaves
to the discretion of the trial judge how to handle requests for
transcripts and whether to offer the alternative of a readback.
However, "in some jurisdictions a readback may be required by
statute or as an inherent right of the jury." Thomas Lundy, Jury
Instruction Corner: Responding to the Jury's 'Inconvenient Request'
to Rehear Testimony, 32-MAR Champion 58, 58 (2008) (footnote
omitted) (citing cases).

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testimony was given on the day before deliberations began, and that

the jurors had available both their notes and Dr. Sein's written

report.11 Among the factors we have considered significant in

upholding a trial judge's refusal to reread testimony is the court's

ongoing consultation with counsel and "that the trial had been

brief so that the testimony [requested] was fresh in the minds of

the jurors." Aubin, 961 F.2d at 983. We also have recognized that

the time involved in reading back testimony is "highly relevant."

United States v. Argentine, 814 F.2d 783, 787 n.4 (1st Cir. 1987);

see also Akitoye, 923 F.2d at 226 (stating that "[t]he factors the

judge should consider in responding to a jury's expressed desire

to rehear testimony include whether the request is 'reasonably

well-focused,' whether there is any 'physical or logistical

impairment to reading' the testimony back, and the amount of time

the procedure would probably consume" (quoting Argentine, 814 F.2d

at 787)).

The rationales we have previously identified as

appropriate make manifest not only that the court would not have

abused its discretion if it denied a jury request for a readback,

but also that the court did not err in rejecting the requests from

11 Dr. Sein's thirteen-page report propounded the same
conclusion he gave at trial: that Vázquez-Soto's neck and lower-
back injuries made him unable to return to work. The report also
detailed the medical history and physical exams on which Dr. Sein
relied. Vázquez-Soto does not contend that Dr. Sein's testimony
added any new information.

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counsel for a readback or physical transcript. The court consulted

with counsel and weighed their arguments, and it made a supportable

judgment call based on both the logistics -- i.e., the delay that

would result -- and the jury's ability to evaluate Dr. Sein's

testimony without rereading it or hearing it reread.12

Whether the court might have made a different

determination if the jury had expressly requested a readback is not

the question before us. The court properly exercised its authority

not to offer that option, and we find no abuse of discretion in its

decision to instruct the jurors to rely on their memory, notes, and

Dr. Sein's report in lieu of a transcript or readback.

V.

Sufficient evidence supported the convictions of Vázquez-Soto

for making false statements and theft of government property. The

district court did not abuse its discretion in admitting the

Facebook photographs. Nor did the court abuse its discretion by

declining to provide a transcript or readback of Dr. Sein's

testimony or to inform the jury that it could request a readback

of the testimony. We therefore affirm.

So ordered.

12We note that different factors can come into play depending
on whether the jury requests a transcript or readback; for example,
a readback may be available without the delay required to prepare
a transcript. See supra note 8. On appeal, Vázquez-Soto does not
present separate arguments on the two options, and we likewise
treat the court's articulated rationales as applicable to both.

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