United States Court of Appeals
For the First Circuit
No. 11-1646
UNITED STATES OF AMERICA,
Appellee,
v.
STEVEN SOTO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Howard, Circuit Judge,
Souter,* Associate Justice,
and Torresen,** District Judge.
Robert C. Andrews for appellant.
Mark T. Quinlivan, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.
June 24, 2013
*
Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
**
Of the District of Maine, sitting by designation.
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.1 On appeal, Soto argues that the trial
court violated his Sixth Amendment right to confront the witnesses
against him by admitting testimony of a forensic examiner about
another examiner’s prior examination. Soto also challenges the
sufficiency of the government’s evidence for his aggravated
identity theft convictions. For the following reasons, we uphold
Soto’s convictions on all counts.
I. Sufficiency of the Evidence on the Aggravated Identity Theft
Counts
A. Factual Background
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).
1
Counts one through four charged mail fraud in violation of
18 U.S.C. § 1341; counts five through seven charged wire fraud in
violation of 18 U.S.C. § 1343; counts eight and nine charged bank
fraud in violation of 18 U.S.C. § 1344; and counts ten through
seventeen charged aggravated identity theft in violation of 18
U.S.C. § 1028A.
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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
affidavits2 to the RMV, transferring the titles to the motorcycles
2
In order to create the counterfeit affidavits, Soto used
the identity of Milagros Espinal, an actual notary public who had
notarized documents for Soto in the past.
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to either his uncle, Salvador Shower, or his friend, Abraham
Dominguez. Soto intercepted the “clean” titles issued by the RMV
from the mail of Shower and Dominguez. Once Soto had the titles,
another friend posed as either Shower or Dominguez and sold the
motorcycles to innocent third parties.
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 the close of the evidence, and the
district court again denied the motion.
B. Standard of Review and Relevant Law
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
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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:
Whoever, during and in relation to any felony
violation enumerated in subsection (c), knowingly
transfers, possesses, or uses, without lawful
authority, a means of identification of another
person shall, in addition to the punishment
provided for such felony, be sentenced to a term of
imprisonment of 2 years.
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 (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
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“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
left-hand 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
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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 titles to his uncle and his friend; he purchased
automobiles using his friend Gregory Bradley’s identity. The jury
could have reasonably inferred that Soto’s modus operandi was to
involve people whom he knew to be real.
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.
II. The Crawford Challenge
A. Procedural Background
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
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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,3
and he testified:
PROSECUTOR: After you made an image of the hard
drive from Exhibit 30, the laptop computer, were
you able to print out certain documents that appear
on the hard drive?
AGENT PICKETT: I did not make a hard copy printout;
however, I used the forensic program called EnCase
to find this document, and it was contained in the
same folder that John Murphy had said that he had
found it in.
PROSECUTOR: So am I correct in understanding that
each of the pieces of paper in Exhibit 20 are hard
3
The documents were: (1) a welcome email from Expedia.com to
biznsmen@hotmail.com with login information for member ID
SSoto2006, (2) a 2005 W-2 and earnings summary for Carmen L. Soto,
(3) a 2005 W-2 and earnings summary for Gregory Bradley, (4) a
Comcast past due balance notice addressed to Gregory Bradley, (5)
a W-2 wage and tax statement from CMJ Management Co. for Gregory
Bradley, (6) a Paradise Real Estate pay stub for Gregory Bradley,
and (7) a Paradise Real Estate pay stub for Manuel Shower.
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copies of stuff you confirmed were in the hard
drive that was in Exhibit 30?
AGENT PICKETT: Yes. I saw this document, this
file, looking in EnCase and confirmed that it was
on the image of the hard drive that I made.
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:
COUNSEL: Just so we’re clear, you were the second
Secret Service agent to perform forensic work on
the laptop, correct?
AGENT PICKETT: That is correct. John Murphy was
the original examiner, and then I re-examined it.
COUNSEL: Why did you re-examine it?
AGENT PICKETT: I was asked to.
COUNSEL: By whom were you asked to?
AGENT PICKETT: By Attorney Capin.
COUNSEL: And what was the reason why you were asked
to?
AGENT PICKETT: To confirm that everything on John
Murphy’s report was exactly the way he said it was.
At the end of his testimony, Agent Pickett
testified:
PROSECUTOR: And just one last question. You were
asked a number of questions about the original
agent, I think Murphy, who analyzed this. Do you
know why Murphy isn’t here today?
AGENT PICKETT: That is correct. John Murphy has,
as part of our normal career transition, has gone
on to Washington, D.C. He’s now part of what’s
called our technical security division. He’s in
charge of the alarms and electronic security at the
White House.
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B. Standard of Review
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).4 Thus, on appeal Soto
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). 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).
United States v. Acevedo-Maldonado, 696 F.3d 150, 156 (1st Cir.
2012) (other internal quotations omitted).
C. Relevant Law
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 (2004),
4
Soto argues on appeal that we should review his Sixth
Amendment challenge de novo because Soto’s counsel made a general
objection during Agent Pickett’s testimony to the authenticity of
the Exhibit 20 documents. At trial, Soto’s counsel objected to the
admission of the documents found on the hard drive “pursuant to a
previous motion I made to the Court.” This objection must refer to
counsel’s pre-trial motion to suppress the laptop as the fruit of
an unreasonable search. Because Soto did not make a
contemporaneous Confrontation Clause or even a hearsay objection,
we review for plain error.
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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
is the phrase “testimonial statements.” Only
statements of this sort cause the defendant to be a
“witness” within the meaning of the Confrontation
Clause. It is the testimonial character of the
statement that separates it from other hearsay
that, while subject to traditional limitations upon
hearsay evidence, is not subject to the
Confrontation Clause.
Davis v. Washington, 547 U.S. 813, 821 (2006) (internal citation
omitted). As we have previously explained:
Thus far, the Supreme Court has declined to supply
“a comprehensive definition of testimonial.”
Crawford, 541 U.S. at 68; see also Davis, 547 U.S.
at 822. The Court has, however, provided an
illustrative list of the “core class of
‘testimonial’ statements.” Crawford, 541 U.S. at
51. It includes (1) “ex parte in-court testimony or
its functional equivalent — that is, material such
as affidavits, custodial examinations, prior
testimony that the defendant was unable to cross-
examine, or similar pretrial statements that
declarants would reasonably expect to be used
prosecutorially,” (2) “extrajudicial statements
. . . contained in formalized testimonial
materials, such as affidavits, depositions, prior
testimony, or confessions,” and (3) “statements
that were made under circumstances which would lead
an objective witness reasonably to believe that the
statement would be available for use at a later
trial.” Id. at 51-52 (internal quotation marks and
citation omitted). . . . Mindful of Crawford’s
bottom line, this court, in determining whether a
statement is “testimonial,” inquires whether “an
objectively reasonable person in the declarant’s
shoes would understand that the statement would be
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used in prosecuting the defendant at trial.”
United States v. Earle, 488 F.3d 537, 543 (1st Cir.
2007).
United States v. Phoeun Lang, 672 F.3d 17, 22 (1st Cir. 2012).
In Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309-11
(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, 131 S. Ct. 2705, 2713 (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.
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Finally, in Williams v. Illinois, 132 S. Ct. 2221 (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 the testifying
expert based her opinion. Id. at 2235-40. In dissent, Justices
Kagan, Scalia, Ginsburg, and Sotomayor concluded that the non-
testifying expert’s statements were being offered for their truth
and were testimonial, and thus found a Confrontation Clause
violation. Id. at 2268-72 (Kagan, J., dissenting). In a
concurring opinion, Justice Thomas agreed that the non-testifying
expert’s statements were offered for their truth but concluded that
they “lacked the requisite ‘formality and solemnity’ to be
considered ‘testimonial’ for purposes of the Confrontation Clause.”
Id. at 2255 (Thomas, J., concurring).,
D. Analysis
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
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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 2716.5
5
In part IV of the Supreme Court’s Bullcoming opinion,
joined only by Justice Scalia, Justice Ginsburg observed that the
state could have avoided a Sixth Amendment violation when it
realized that the original scientist was unavailable to testify “by
asking [the testifying analyst] to retest the sample, and then
testify to the results of his retest rather than to the results of
a test he did not conduct or observe.” Id. at 2718. Justice
Kennedy, with Chief Justice Roberts, Justice Breyer, and Justice
Alito, in dissent, concluded that testimony from a knowledgeable
lab representative is sufficient under the Sixth Amendment. Id. at
2723 (Kennedy, J., dissenting). Thus, it appears that six justices
would find no Sixth Amendment violation when a second analyst
retests evidence and testifies at trial about her conclusions about
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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 independent examination and testifies to his own
results.
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
her independent examination.
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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
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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.
Conclusion
For the reasons discussed above, we affirm Soto’s
convictions on all counts.
Affirmed.
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