United States v. Ortiz-Colon

• Court: Court of Appeals for the First Circuit
• Decided: May 6, 2026
• Docket: 23-1504
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 23-1504

UNITED STATES OF AMERICA,

Appellee,

v.

FRANCISCO XAVIER ORTIZ-COLÓN,

Defendant, Appellant.

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

[Hon. Raúl M. Arias-Marxuach, U.S. District Judge]

Before

Barron, Chief Judge, Thompson and Gelpí, Circuit Judges.

Linda Backiel for appellant.

Julia M. Meconiates, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, were on brief, for appellee.

May 6, 2026 THOMPSON, Circuit Judge. On November 9, 2022, a jury

for the United States District Court of Puerto Rico concluded its

deliberations, re-entered the courtroom where it had spent the

last six days, and returned nineteen guilty verdicts against

appellant-defendant Francisco Xavier Ortiz-Colón ("Ortiz").1

Ortiz now appeals his convictions for producing, possessing, and

receiving child pornography, and for coercing and enticing a minor,

along with the substantive reasonableness of his 360-month

sentence.

Ortiz claims the district court committed a plethora of

plain errors throughout his trial as follows: while empaneling the

jury, excusing jurors during trial, allowing overview testimony

from government witnesses, responding to juror notes, and allowing

multiple convictions based on the same alleged conduct. And Ortiz

claims that, after the jury returned its findings, the district

court abused its discretion by not varying downward even more than

it did when issuing his sentence. After careful scrutiny of the

trial record and due consideration of the arguments presented, we

affirm in part and remand for further proceedings.

1 AlthoughOrtiz's appellate briefing spells his name "Ortíz," his district court filings and the rules of the Royal Academy of the Spanish Language (Real Academia de la Lengua Española) suggest Ortiz is correctly spelled without an accent. Therefore, we proceed without the accent.

- 2 - I.

We begin with a brief rundown of the relevant facts as

the jury might favorably have found them, supported by the

appellate record. See United States v. Burgos-Montes, 786 F.3d

92, 99 (1st Cir. 2015); United States v. Bradshaw, 281 F.3d 278,

280 (1st Cir. 2002).2 As we present our exposition, we take a

big-picture approach and leave more acute details for our

forthcoming discussions of Ortiz's specific claims.

A.

In December 2019, a team from the Crimes Against Children

Task Force (based within Homeland Security Investigations)

launched an investigation after receiving a troubling complaint

from a school social worker in San Juan, Puerto Rico. The social

worker reported that an Instagram user under the account

"axilas_promocion"3 had contacted a twelve-year-old student, KMC,4

initially requesting photos of her underarms and, later,

requesting sexually explicit photos. Federal investigators

interviewed KMC and learned that her classmate, SMG, received

Because Ortiz challenges the substantive reasonableness of 2

his sentence, we will pull our background facts for that later discussion from the undisputed portions of the presentence investigation report and the transcript of his sentencing hearing. See United States v. Brown, 26 F.4th 48, 53 n.1 (1st Cir. 2022). 3 This account handle means "armpit promotion" in Spanish. Throughout this opinion, we use initials to protect the 4

identities of the minor victims involved.

- 3 - similar Instagram messages and provocative requests from the

axilas_promocion account.

The following month, authorities obtained a search

warrant for the axilas_promocion Instagram account that produced

subscriber information, a list of internet protocol ("IP")

addresses, photographs, videos, and messages associated with the

account. These recovered materials included messages between the

axilas_promocion user and KMC and SMG, along with sexually explicit

photos of KMC. Investigators reviewed the list of IP addresses

associated with the axilas_promocion account and ultimately

flagged one as repeatedly being used to log in and upload media.

Equipped with this IP address, authorities tracked it back to a

physical address in San Juan.

While this investigation was underway, authorities

received additional complaints matching the pattern of events

experienced by KMC and SMG. This time an Instagram account called

"axila_promociones"5 had contacted eleven-year-old APR,

fourteen-year-old ACM, and fourteen-year-old DAR. In each

instance, the axilas_promociones user first solicited underarm

photos from the minors before escalating to requests for sexually

explicit images. Another round of search warrants ensued and

produced a swath of records from Instagram including more

5 This second Instagram account listed in its bio a third linked account, axila_promociones_promociones.

- 4 - subscriber information, messages, photos, and videos associated

with the second axilas account. Further inspection of these

records revealed illicit messages with an additional four minor

victims and sexually explicit photographs of those victims, along

with one more.

On June 10, 2020, authorities executed a search warrant

at the San Juan residence located through the axilas_promocion

account's IP address. Through this search warrant, law enforcement

agents were authorized to seize any electronic device on the

premises that could have been used to access the axilas accounts.

When they arrived, authorities found Ortiz on site and ultimately

recovered several cell phones (including a black Samsung cell phone

seized from Ortiz's person that he said he was the sole user of),

a computer, and a tablet. A later review of Ortiz's Samsung cell

phone revealed sexually explicit photos of six of the minor victims

previously identified through the Instagram records. Other seized

electronics furnished additional depictions of child pornography

and further links between Ortiz and the axilas

accounts -- including phone numbers verified by Instagram and

email addresses used to register the accounts. Ortiz was arrested

on August 19, 2020.

B.

Based on the above-mentioned conduct, Ortiz was charged

with nine counts of production of child pornography (based on his

- 5 - nine minor victims) in violation of 18 U.S.C. § 2251(a), eight

counts of coercion and enticement of a minor in violation of 18

U.S.C. § 2422(b), one count of receipt of child pornography in

violation of 18 U.S.C. § 2252A(a)(2), and one count of possession

of child pornography in violation of 18 U.S.C.

§ 2252A(a)(5)(B) -- amounting to nineteen counts in total. Ortiz

opted to go to trial and, after six eventful days of evidence

production and one day of deliberating, the jury found Ortiz guilty

on all nineteen counts. Sentencing ensued thereafter, and the

district court issued Ortiz a downwardly variant sentence of 360

months' (i.e., thirty years') imprisonment.

II.

On appeal, Ortiz raises six claims of error. Four of

these claims pertain to the trial proceedings below, specifically

the empanelment of jurors, the excusing of empaneled jurors, the

scope of the government's witness testimony, and the fielding of

juror notes. Ortiz also argues that his convictions violate the

Fifth Amendment's Double Jeopardy Clause by effectively punishing

him twice for the same conduct. And Ortiz's final challenge claims

the district court's sentence was substantively unreasonable.

Before unpacking each of Ortiz's appellate

asseverations, we'll pause to articulate the standard of review

guiding our discussions. As Ortiz concedes, our plain-error

standard applies to most of his claims because he failed to lodge

- 6 - the appropriate objections (and thus to preserve his arguments)

during trial. See United States v. Casanova, 886 F.3d 55, 59 (1st

Cir. 2018). Under this demanding standard, Ortiz "must show that

(1) an error occurred, (2) the error was obvious, (3) the error

affected substantial rights, and (4) the error seriously impaired

the fairness, integrity, or public reputation of judicial

proceedings." Id. (quoting United States v. Espinal-Almeida, 699

F.3d 588, 600 (1st Cir. 2012)). As we've explained time and again,

appellants face an uphill charge in establishing these four

criteria. See, e.g., United States v. Galíndez, 999 F.3d 60, 64-65

(1st Cir. 2021) (contextualizing the four prongs of plain error

review).

With these criteria as our guideposts, we may proceed

to Ortiz's first claim of plain error.

A.Empaneling Jurors

Ortiz first argues that the district court failed to

pose more specific questions to prospective jurors, questions that

would have warned them about the disturbing nature of the offenses

charged. As a result, Ortiz contends the court's voir dire6

prevented him from intelligently using his peremptory juror

6"Voir dire" originates from the French phrase meaning "to speak the truth." It has been co-opted by the legal community to refer to the jury selection process, where telling the truth remains quintessential.

- 7 - challenges and inadequately protected his right to a fair trial

and an impartial jury.

To properly address Ortiz's arguments, we first need to

provide a bit more info about what happened below. Before Ortiz's

trial began, he submitted a list of proposed juror questions for

voir dire. The district court received his list and proceeded to

ask Ortiz's proposed questions practically verbatim. The court

informed potential jurors that Ortiz had been charged with "sex

offenses" and asked if anyone felt he was more likely to be guilty

as a result. The court next asked whether anyone felt "that

because of the nature of the case, it would be difficult for [them]

to try to issue a verdict fairly and impartial[ly] without any

prejudice or bias." Continuing, the court told the jury pool that

they "may be shown nude images of what the [g]overment alleges

constitutes child pornography" and that those images "may be

unpleasant to view." Due to this potential evidence, the court

asked whether seeing such images would prevent any jurors from

being impartial.

Several potential jurors heeded the court's warning and,

outside the earshot of the other potential jurors, expressed their

personal concerns based on these questions.7 The court probed each

7 For instance, one juror confided to the court, "[f]rom six years old to fifteen, I was a sexual abuse victim and I don't think I can handle this." That juror was subsequently excused for cause.

- 8 - concerned potential juror with more questions about their views of

child pornography and if they had any history of sexual abuse.

All the while, as prospective jurors approached and answered

questions related to the nature of the offenses for voir dire,

defense counsel for Ortiz was present and afforded the opportunity

to ask follow-up questions. After court and counsel concluded all

questioning, the court implored a final time whether the government

or defense counsel had any further questions for voir dire. Both

sides said no. Eventually eight jurors (six of whom expressed an

inability to be fair and impartial) were excused for cause.

Ortiz now asserts that the district court's limited

questioning and "bland euphemism[s]" constituted plain and obvious

error.8 We plainly disagree.

Trial courts have broad discretion in conducting voir

dire "subject only to the essential demands of fairness." United

States v. Delgado-Marrero, 744 F.3d 167, 201 (1st Cir. 2014)

(quoting United States v. Misla-Aldarondo, 478 F.3d 52, 60 (1st

Cir. 2007)). Accordingly, we do not ascribe a "hard-and-fast

formula" to the district court's decisions regarding the

"necessary depth or breadth of voir dire." Id. (quoting Skilling

8 The government claims Ortiz failed to develop this argument (and practically all others) according to the four plain-error prongs, which would mean Ortiz has waived this claim on appeal. See United States v. Pabon, 819 F.3d 26, 33 (1st Cir. 2016). We reject this casting of Ortiz's briefing and, unless stated otherwise, proceed to review his claims for plain error.

- 9 - v. United States, 561 U.S. 358, 386 (2010)). Here, "the court

asked a series of questions to identify potential biases and

inquired as to whether prospective jurors could be fair and

impartial in deciding the case." Id. Moreover, the court did not

refuse to ask any questions requested by Ortiz, and it gave defense

counsel ample opportunity to make further inquiries. Ortiz's

counsel declined that invitation, and Ortiz has failed to present

a specific error committed by the district court in conducting

voir dire. See id.; see also Galíndez, 999 F.3d at 64-65

(explaining the need for appellant to show "an irrefutable error

given binding precedent" under plain error review).

Before departing from this issue, we note that Ortiz

says that the district court also erred by: (1) failing to inform

prospective jurors that the government planned to call law

enforcement agents as witnesses; and (2) failing to account for

the "demographics" of the jury (specifically jurors' sex and their

relationships to children) when considering their impartiality.

Aside from a sparse summary of some events that occurred and some

additional details about the empaneled jurors, Ortiz has presented

these possible claims "unaccompanied by some effort at developed

argumentation." United States v. Zannino, 895 F.2d 1, 17 (1st

- 10 - Cir. 1990). Accordingly, as is our settled appellate rule, these

claims are waived. Id.9

B. Excusing Jurors

Ortiz next claims the district court erred by excusing

three jurors prior to deliberations. He concedes that no

objections were raised before the trial court, and thus we continue

to apply our plain error standard of review. See Galíndez, 999

F.3d at 64-65. The government disputes Ortiz's version of events

and says that only two jurors departed during trial. So, before

we can address Ortiz's claim of error, we need to set the record

straight.

On the second day of trial, proceedings abruptly stopped

when one juror bolted from the courtroom. This juror -- who was

simultaneously labeled juror thirteen and alternate juror

one -- eventually came back and explained that she made for the

exit because she was "coughing a lot." The court informed both

parties that it was inclined to excuse juror thirteen, in part due

to the availability of three more alternate jurors. Both counsel

9 Even if Ortiz had not waived his law enforcement-related claim, his briefing incorrectly accuses the district court of not asking potential jurors whether they would tend to credit law enforcement witnesses simply by virtue of their employment. The court asked that precise question, right after telling the jury pool that agents for the federal government were likely to testify. Furthermore, the court (while not saying so explicitly) asked the jury pool if anyone knew the law enforcement agents the government planned to call as witnesses and read their names on the record, contrary to Ortiz's appellate retelling.

- 11 - for the government and for Ortiz assented to excusing the juror

and continuing the trial. With everyone in agreement, the court

thanked juror thirteen for her service and excused her from duty.

That concludes the story of one excused juror.

Ortiz claims the court excused another alternate juror

that day. This time, Ortiz points to a note from an unnamed juror

("juror note nine") and the court's written response "Alternate

juror excused." The government has provided us with a certified

translation of juror note nine in its briefing. The note reads:

"May I go to the bathroom for a moment? I'm trying not to cough

loudly." The trial minutes docketed after the second day of trial

show us that the court received juror note nine and excused

alternate juror one (a.k.a. juror thirteen whom we've already

discussed) that day. Ortiz claims the unidentified author of juror

note nine was not alternate juror one, but rather a different juror

who the court excused off the record and without explanation.

Based on our reading of the record, the court excused

only one alternate juror on the second day of trial.

Unfortunately, the juror notes are not time-stamped. But the

content of juror note nine and alternate juror one's reference to

coughing, along with the court's record of only excusing one juror

that day, alleviate any concern.

Ortiz's arguments to the contrary fail to prove a second

alternate juror was ever excused. Ortiz speculates that the author

- 12 - of juror note nine must have been someone other than alternate

juror one because the contents of the note "reflect[ed] the

instruction given only after [alternate juror one] was dismissed."

Not so. On the first day of trial the court informed all jurors

multiple times that they could send a note if an issue arose and

merely repeated that instruction after alternate juror one's

dismissal. Thus, the official count remains at one excused juror.

The record shows (and the parties agree) that the court

excused another juror on the fifth day of trial. Right after

calling the case, the court informed opposing counsel that former

juror twelve had called the jury office in the night and had been

excused "for a personal matter that ha[d] nothing to do with the

case itself." The court stated that an alternate would be promoted

to the jury, and neither party objected.

Therefore, the final tally comes to two excused jurors,

and Ortiz incorrectly claims that the district court excused two

jurors ex parte. The court excused only two jurors total, one of

which (juror thirteen a.k.a. alternate juror one) was excused in

the presence of counsel without objection. Ortiz's remaining claim

is that the excusal of former juror twelve (who phoned in with a

personal matter) outside the courtroom and not in the presence of

- 13 - counsel violated Federal Rule of Criminal Procedure 43 and his

Sixth Amendment rights.10

We have previously determined that the right to be

present at all critical stages of a trial and a defendant's Sixth

Amendment rights are not necessarily violated when a judge excuses

a juror based on ex parte communications. See Olszewski v.

Spencer, 466 F.3d 47, 64 (1st Cir. 2006). In that prior instance,

a prospective juror initially asked to be excused because his wife

was ill, and he needed to care for her. Id. The court did not

excuse the juror, and he was empaneled. Id. That night, the

juror's son called the judge and reiterated his father's request

because his mother could not be left alone. Id. After contacting

the wife's physician, the court excused the juror on grounds of

hardship. Id. Counsel was informed of these events in court the

next day, and an alternate juror replaced the excused juror. Id.

10Federal Rule of Criminal Procedure 43 provides, in relevant part to Ortiz's claim, that a defendant must be present at "every trial stage." While Ortiz does not differentiate between the protections afforded by Rule 43 and the Sixth Amendment, we note the scope of Rule 43 may be broader in certain circumstances. See United States v. Ofray-Campos, 534 F.3d 1, 17 (1st Cir. 2008) (holding that "a judge's responding to a jury note outside the presence of counsel and defendant" violates Rule 43); see also United States v. Adekoya, No. 95-1123, 1996 WL 402049, at *3 n.6 (1st Cir. July 18, 1996) ("Defendant's right under Rule 43 to be present at trial proceedings is broader than the constitutional right alone."). Regardless, Ortiz's claim falls short under either standard as he has failed to demonstrate harm or prejudice. More on this point shortly.

- 14 - Upon hearing these facts, we found "no basis for

Olszewski's claim that the judge's action in excusing the juror

violated his Sixth Amendment rights." Olszewski, 466 F.3d at 64.

Nor did we find that the judge's ex parte communication amounted

to prejudicial error. Id. at 64-65. And much like in Olszewski,

the court here, in open court, informed counsel and the defendant

of its communications with the excused juror the next morning, and

when it did, counsel made no complaint of prejudice to Ortiz, nor

was there a request for any curative action from the court. See

id. at 64-65. Trial judges are in a better position than us to

decide whether a juror can continue to fulfill their duties, and

we decline Ortiz's invitation, in a situation like this one, to

second-guess that decision. See United States v. Doherty, 867

F.2d 47, 71 (1st Cir. 1989) (citing United States v. Molinares

Charris, 822 F.2d 1213, 1223 (1st Cir. 1987)). Therefore, Ortiz

has failed to show the district court judge committed an obvious

error. See Galíndez, 999 F.3d at 64-65.

To the extent Ortiz raises a challenge beyond the

procedural nature of the district court's decision, that claim is

rejected as Ortiz has not demonstrated that the ex parte

communication prejudiced him or deprived him of a fair trial.

"Unrecorded ex parte communications between a trial judge and a

juror are subject to harmless error review." Olszewski, 466 F.3d

at 64 (citing Rushen v. Spain, 464 U.S. 114, 119-120 (1983)); see

- 15 - also United States v. Adekoya, No. 95-1123, 1996 WL 402049, at *4

(1st Cir. July 18, 1996) (rejecting defendant's argument under

Rule 43 to be present during the sidebar questioning of prospective

jurors because there was no harm or prejudice to defendant). An

error in these circumstances is harmless where "the jury's

deliberations, as a whole, are not biased by the undisclosed

communication." Olszewski, 466 F.3d at 64 (citation modified).

Jury deliberations had not begun, meaning that the excusal could

not have influenced deliberations, and the judge's communication

with the excused juror occurred beyond earshot of those who

remained empaneled. See Doherty, 867 F.2d at 72. As such, we

discern neither error nor prejudice to Ortiz.

C. Overview Testimony

In the next segment of Ortiz's appeal, he claims that

three of the government's witnesses provided impermissible

"overview testimony." To Ortiz, these witnesses for the

prosecution testified to matters beyond the scope of their

expertise and advocated from the witness stand. We review these

unpreserved evidentiary challenges for plain error and will affirm

even in the presence of error if that error was harmless. United

States v. García-Sierra, 994 F.3d 17, 26 (1st Cir. 2021); United

States v. Rosado-Perez, 605 F.3d 48, 54 (1st Cir. 2010).

Before diving into the testimonial details, a quick word

on what we mean by impermissible overview testimony. "The

- 16 - prohibition on overly broad overview testimony arises from the

basic principle in the Federal Rules of Evidence that witnesses,

other than experts giving expert opinions, should testify from

personal knowledge." Rosado-Perez, 605 F.3d at 55. And

"[t]estimony by a law enforcement agent constitutes impermissible

'overview' testimony when it effectively opines that a defendant

is guilty 'based on the totality of information gathered' in the

agent's investigation, rather than relaying the agent's first-hand

experiences and observations." García-Sierra, 994 F.3d at 26

(quoting United States v. Meises, 645 F.3d 5, 15 (1st Cir. 2011)).

With these principles in mind, we will address each

witness and argument seriatim.

i. Agent Wilkins

On the second day of trial, the government called Agent

Richard James Wilkins, who was accepted as an expert in computer

forensics without objection. Agent Wilkins testified that he

extracted data from Ortiz's Samsung cell phone and sent that data

to investigating authorities in San Juan. Wilkins explained the

details of his extraction process and informed the jury that such

extractions produced user accounts, chats, messages, call logs,

images, videos, thumbnails, and internet search history from cell

phones. When asked a follow-up question about the role of internet

search history in child pornography investigations (which he had

done hundreds of), Wilkins said that it "shows what somebody is

- 17 - interested in, or what they are looking for, or what they are

trying to do." On redirect examination, Wilkins elaborated on his

process for connecting a specific user to a device based on

extracted data. He told the jury:

A phone, I'm not saying this phone, but many phones I analyze, what we will go and we will look for is email accounts, Facebook accounts, Instagram, and we find all of these accounts. Typically, they all come back to the same person. Maybe they have a different name on the account, but it comes back to the same subscriber ultimately.

That is the extent of Wilkins's testimony that Ortiz argues was

impermissibly overbroad "personal opinion."

Even assuming Agent Wilkins's testimony amounts to lay

opinion (rather than expert testimony of a computer forensics

expert), the court did not commit an evidentiary error because

Wilkins also testified to having years of experience and to having

done hundreds of phone extractions. See United States v. Belanger,

890 F.3d 13, 25 (1st Cir. 2018) (explaining that lay witnesses may

testify to expertise acquired through job experience). Wilkins's

statements were logically connected to his experience and his

personal involvement in extracting data from Ortiz's cell phone.

See id. at 26. Moreover, Wilkins's testimony aided the jury's

consideration of the extracted cell phone data that was later

entered into evidence. See id. And, if more were needed, Ortiz

has not argued (let alone proven) that Wilkins's testimony harmed

- 18 - him. See García-Sierra, 994 F.3d at 28. Therefore, sans error or

prejudice, Ortiz's challenge to Wilkins's testimony "falters on

the shoals of plain error review." Id. at 29.

ii. Agent Segarra

Ortiz next claims the government's witness, Agent Darien

Victor Segarra-Cardona ("Segarra"), "abandoned his expertise" and

"advocate[d] from the witness stand." Specifically, Ortiz argues

that Segarra skipped over the details of his expertise and told

the jury that he processed the seized cell phones "[t]o try to

find evidence." And when describing for the jury the evidence

that he found (particularly photos), Segarra used the words

"victims" and "child pornography."

At first glance, Segarra's testimony raises some

concerns. On direct examination, the government presented Segarra

with an evidence disk he had prepared and asked him to state the

names of the files therein. Segarra identified fourteen files on

the disk and rattled off the names he assigned to those files which

included "child pornography" and "victims," along with more

objective titles like "device photos" and "web history." The

government then asked Segarra whether those files were his personal

findings related to his analysis, and he answered yes.

The government probed further into the files Segarra

organized. For the file titled "child pornography," Segarra

testified the evidence consisted of "355 tags which contain images

- 19 - of child pornography." Then, in similar fashion, the government

asked Segarra to describe the "victims" file, and Segarra

unsurprisingly said that it contained "[i]mages of the identified

victims." Segarra further testified that he identified the photos

of victims with help from Agent De Jesús (whose testimony we will

be addressing shortly) and did so before the jury heard from Agent

De Jesús or the victims.

A few things need unpacking before we can evaluate

whether the court erred, let alone plainly erred, in admitting

Segarra's testimony as Ortiz claims. First, unlike common examples

of impermissible overview testimony, this is not an instance where

one law enforcement officer testifies about the entirety of an

investigation and evidence that had not been admitted. See United

States v. Flores-De-Jesus, 569 F.3d 8, 17-18 (1st Cir. 2009)

(discussing common examples of overview testimony). Agent

Segarra's testimony commented on already-admitted evidence that he

oversaw the extraction of and personally reviewed. Cf.

García-Sierra, 994 F.3d at 26 (explaining that overview testimony

is when a law enforcement agent "effectively opines that a

defendant is guilty based on the totality of information gathered

in the agent's investigation, rather than relaying the agent's

first-hand experiences and observations" (citation modified)).

Second (as we mentioned before), so long as proper

foundation is laid, "government witnesses may testify about

- 20 - matters within their personal knowledge and give lay . . . opinion

testimony." Rosado-Perez, 605 F.3d at 56. Segarra opened his

testimony by telling the jury about his experience working for the

Crimes Against Children Task Force as a computer forensics expert.

He went on to inform the jury that he has worked on hundreds of

cases involving child pornography and child exploitation, handled

hundreds of cell phone extractions, and received specialized

training to analyze extracted data in child pornography and child

exploitation cases. So, when Segarra later testified to placing

extracted cell phone data into files and titling one such file

"child pornography," sufficient foundation had been laid to both

his personal knowledge of how the data was produced and what he

found when personally reviewing that data.

Lastly, even if Segarra's opinions as to what the content

of the data revealed were problematic, Ortiz has failed to explain

why this testimony prejudiced him considering the overwhelming

evidence against him. See García-Sierra, 994 F.3d at 28 ("[O]n

plain error review [the defendant] bears the burden of persuading

us that the errors plaguing [the witness's] testimony harmed

him."). Agent De Jesús testified after Segarra and identified the

minor victims DAR, ARR, ACM, CAR, VOM, and ASR in the photos from

the folder titled "victims." Furthermore, three of the six victims

depicted in the "victims" file testified at trial and identified

sexually explicit photos of themselves along with their

- 21 - communications with Ortiz through the axilas Instagram accounts

(DAR also identified photos of her younger sister). Therefore,

Segarra's testimony that the files contained child pornography and

images of identified victims "was consistent with other competent

evidence proffered by the government." Id.11 Accordingly, Ortiz

has not demonstrated that the district court committed plain error

in allowing Segarra's testimony.

iii. Agent De Jesús

The third and final witness Ortiz claims provided

impermissible overview testimony is Agent Elizabeth De Jesús.

According to Ortiz, De Jesús's expertise in child pornography

should not have permitted her to "identify intimate body parts of

strangers without establishing a basis for their ability to do

so." Furthermore, Ortiz says that the court should have prevented

De Jesús from testifying to the "modus operandi"12 of the individual

behind the axilas accounts.

To put a final nail in this coffin, Ortiz never argued or 11

attempted to poke holes in the government's presentation of the extracted child pornography or the identification of the minor victims. His theory of defense at trial (which he loosely carries on appeal) was that he was not the individual behind the axilas Instagram accounts, and that none of the evidence or testimony connected the offenses to him as the offender. Based on this position, we are further convinced Segarra's testimony did not substantially affect Ortiz's rights. "Modus operandi" is Latin for "mode of operating" and 12

legalese for a predictable pattern of behavior that indicates how an individual operates.

- 22 - We will address the modus operandi claim first and

explain why the district court did not plainly err. First off, we

struggle to see how De Jesús's use of modus operandi falls under

the ambit of impermissible overview testimony. Nevertheless, by

our count, she spun this Latin phrase twice for the jury during

her testimony. The first time, De Jesús explained that, after her

investigation began, she received two additional complaints from

the families of APR and ACM reporting an Instagram account "using

the same modus operandi of requesting, soliciting underarm

photographs from female minors and escalating it to solicit

sexually explicit images from them." The second time, De Jesús

explained that the second axilas Instagram account (identified via

the additional complaints) "had the same modus operandi which was

requesting underarm photos from female minors and progressively

leading them to produce other images until it got to the point

where they were being solicited for sexually explicit videos and/or

images." She later described the same escalating pattern of

requests that she observed in another complaint and when reviewing

the axilas account records, but did not utter the words "modus

operandi."

Both times De Jesús used the term modus operandi, she

described a pattern of events that she personally observed and

that the jury could later review in the evidence to reach the same

(or a different) conclusion. See Rosado-Perez, 605 F.3d at 56

- 23 - (finding a witness's testimony permissible where it was based on

personal knowledge and the jury "could independently evaluate" the

witness's interpretation). Furthermore, we find ourselves again

in no position wherein we could somehow conclude that this

testimony in some way prejudiced Ortiz. For example, De Jesús's

use of the term modus operandi did not serve as a link between

Ortiz's prior conduct and the alleged crimes. Cf. García-Sierra,

994 F.3d at 31 (discussing a challenge to prior-bad-acts evidence

unrelated to overview testimony). The government connected Ortiz

to the axilas Instagram accounts in a myriad of other ways

including his email addresses used to access the accounts, the IP

address connected to where he lived, and his seized cell phone

used to access the accounts which also had sexually explicit images

of victims downloaded from those accounts. In short, the court

did not plainly err in allowing De Jesús to testify on the modus

operandi she observed. See Flores-De-Jesus, 569 F.3d at 19

(distinguishing overview testimony from an agent's description of

her investigation based on personal knowledge).

As for identifying victims, we again reject Ortiz's

claim that De Jesús submitted impermissible overview testimony.

On the third day of trial, De Jesús began her testimony by

explaining how she got involved in Ortiz's case following the first

complaint filed by KMC's school social worker. De Jesús then

expounded on the search warrants she obtained for the axilas

- 24 - Instagram accounts and how she reviewed the copious documents

produced. Upon her review, she recognized messages to victims

based on their complaints and discovered pornographic images of

other minors who had not sought help. De Jesús personally combed

through thousands of files to identify images of known victims

and, using the victims' Instagram accounts contacted by the axilas

accounts, De Jesús learned the identities of the previously unknown

victims. From there, De Jesús told the jury that she personally

met and saw all nine victims.

Still on direct examination, De Jesús explained how she

processed all the Instagram data, burned it on to an evidence disk,

and separated the documents into folders based on victim. She

testified that she could organize the data by victim, in part

because she knew which Instagram accounts the victims used to

message and send photos to the axilas accounts. From the witness

stand, she also identified each victim in photographs taken during

interviews around the time the sexually explicit photos were taken

and sent.

Even though De Jesús identified photos of the victims

before they testified, De Jesús limited her testimony to her

personal knowledge of evidence that had already been admitted.

And, when "a law enforcement agent's testimony is limited to what

[she] has gleaned from [her] first-hand observations, there is

nothing wrong with the agent 'describing the course of [her]

- 25 - investigation in order to set the stage for the testimony to

come.'" García-Sierra, 994 F.3d at 27 (citation modified).

However, from our read of the testimony, we agree with Ortiz that

it is not always clear what images De Jesús was referring to while

responding to questions. For instance, when asked about the

Instagram records De Jesús received involving one axilas account

and CAR's Instagram account, she seems to run through images with

sporadic descriptions such as "[t]hose are images of CAR, her

underarm followed by a photo of her breast," but then "[t]hose are

genitals" or "[t]hese two images are of female genitals." But

even with plausible error afoot (which itself falls short of the

"obvious" requirement), Ortiz fails to explain, as is his burden,

how this testimony harmed him. See id. at 28. Nor is such harm

evident to us, particularly because many of the victims (aside

from CAR and ASR) later proffered competent testimony and

identified themselves in the photos they sent.13 So, once again,

Ortiz's claim succumbs to plain error review.

iv. Conviction on Count Seven

In presenting his overview testimony arguments, Ortiz

also contends (somewhat confusingly) that this testimony allowed

the jury to convict him of an offense involving a victim for which

The youngest victim, ADMRR, did not testify at trial but 13

was nevertheless identified by the competent testimony of someone with personal knowledge -- her older sister and fellow victim DAR.

- 26 - there was no evidence. That offense, count seven of the

indictment, accused Ortiz of producing child pornography involving

"a nine (9) year-old female with initials AMR." Ortiz says that

the evidence established that some victims had three-letter

initials ending in "R" but that DAR testified her younger sister's

initials were ADMRR. Therefore, according to Ortiz, his conviction

must be reversed.

Ortiz raises this purported error as the consequence of

impermissible overview testimony, but we've identified none of the

sort. And to the extent Ortiz attempts to formulate a different

argument based on the sufficiency of the evidence supporting count

seven, he has not done so clearly and provided mere fleshless bones

for that argument and thus waived that claim. See Zannino, 895

F.2d at 17.

D. Juror Notes

We continue our march through Ortiz's appeal by

reviewing what he considers to be three problematic juror notes

submitted to the court during his trial. Because Ortiz failed to

object to the district court's handling of these notes, his

unpreserved claims receive plain error scrutiny at best (we say at

best because, as the government points out and we will address

momentarily, his acquiescence at trial drifts these claims toward

outright waiver). See United States v. Cassiere, 4 F.3d 1006,

1017 (1st Cir. 1993); see also United States v. Corbett, 870 F.3d

- 27 - 21, 30 (1st Cir. 2017) (discussing the standard of review

applicable to an unpreserved challenge to a response to a juror's

question).

In our circuit, as we've previously explained,

"[a]llowing jurors to pose questions during a criminal trial is a

procedure fraught with perils. In most cases, the game will not

be worth the candle." Cassiere, 4 F.3d at 1017 (alteration in

original) (quoting United States v. Sutton, 970 F.2d 1001, 1005

(1st Cir. 1992)). In the same vein, trial judges possess "wide

latitude to manage trials" and, despite the risks associated with

allowing jurors to pose questions, the practice will not amount to

reversible error if conducted properly based on the circumstances.

Id. (quoting Sutton, 970 F.2d at 1005).

i. Note 10

The first of three juror notes that Ortiz requests

appellate examination of came to the court after the government's

direct examination of Agent Segarra. This note sought

clarification of a term Segarra used on the stand and asked

(verbatim): "JB jail bate or jailbake at what is he referring to?"

The court called counsel to sidebar, and said that it planned to

ask Segarra what the initials "JB" meant to him personally before

defense counsel started its cross-examination so that Segarra's

answer could be subject to further questioning if warranted.

Defense counsel responded, "No problem, sir," to this proposal.

- 28 - The next day, as promised and before cross-examination

began, the court asked Segarra, based on his knowledge and

experience, what the term "jailbait" means and what the initials

"JB" stand for. Segarra stated that JB is an abbreviation for

jailbait, a term he'd seen used to search for images of

pre-adolescent girls in explicit poses. Defense counsel did not

object to either question nor to the response and proceeded with

cross-examination of the witness.

Where, as here, "the district court unmistakably placed

the issue of how to respond to" a "juror note on the table" and

defense counsel "affirmatively stated that he had 'no problem'

with the court's proposed response," the appellant has waived the

issue. Corbett, 870 F.3d at 31; see also United States v. Chen,

998 F.3d 1, 9 (1st Cir. 2021) (finding challenges waived where

counsel did not object and affirmatively accepted the court's

proposals). Ortiz may not volte-face his prior position in this

court.14

ii. Note 12

The second of three juror notes at issue in this appeal

confused both opposing counsel and the trial judge on first read

14 Equally problematic, Ortiz concedes right in his opening brief that the district court's question and Segarra's response "[p]robably [did] not" "turn the tide" of his case, thereby eviscerating an essential prong of plain error review -- that an error was prejudicial and affected the proceeding's outcome. Galíndez, 999 F.3d at 65.

- 29 - (admittedly, us too). The district court understood the note to

read: "I noticed a file that called my attention. The name is

Claro. It concerns me that this supposed exposition of images of

victims creates a risk of abduction." Outside the presence of the

jury, the district court proposed a solution to opposing counsel:

it would explain to the note's author that they shouldn't be

concerned for the safety of anyone in Puerto Rico and that this

case was not about the Claro website (to be sure, neither is this

appeal),15 and then ask whether the juror had discussed their

concerns with any other jurors and whether they could still be

fair and impartial. Both prosecution and defense agreed to this

proposal.

Later, the proposed plan proceeded without a hitch.

Outside the presence of the other jurors, the court called the

note's author (juror number 16, an alternate) and alleviated their

concern. The juror informed counsel and the court that they hadn't

shared their thoughts with any other jurors and that they could

still serve as a fair and impartial juror. The audience ended

without further comment, objection, or request made by defense

counsel.

15 For the curious reader, Claro is a telecommunications provider in Puerto Rico that offers mobile, internet, TV, and landline phone services and provides voice and data connectivity for residents and businesses. It operates as part of the América Móvil group and evolved from the historic Puerto Rico Telephone Company.

- 30 - Now, Ortiz claims error; however, he concedes "this

incident itself does not warrant reversal." Between defense

counsel's acquiescence to the district court's response and

Ortiz's concession on his meritless appellate position, Ortiz has

abandoned, and thus waived, this claim. See Corbett, 870 F.3d at

30; see also Zannino, 895 F.2d at 17 (explaining that our court

will not do counsel's work and develop arguments). And even

setting all waiver aside, the court erred neither by responding to

this juror note nor in the manner it responded. Cf. United States

v. Sandoval, 6 F.4th 63, 82 (1st Cir. 2021) (finding no error in

the court's remedial actions where juror notes expressed fear, in

the context of a motion for a mistrial).

iii. Note 17

The third and final juror note poised for appellate

scrutiny presents a deeper quagmire. On the fifth day of trial,

the court received a note that read:

Is it necessary to listen to all the victims? We can tell, throughout the other interviews of witnesses, the process of getting these pictures. There is a word. It's by persistency and blackmailing, by actual threatening the witnesses. There is plenty of evidence at hand. What else is needed to provide a verdict for each count? Can we proceed and simply have the Defendant testify? Please excuse my little prior knowledge of how a trial is completed. I am just a bit impatient.

- 31 - The court discussed this note with opposing counsel and proposed

a response explaining that the government has the burden of proof

and must present evidence as to each of the nineteen counts

charged. Additionally, the court's proposed response stated that

Ortiz had no obligation to testify and that no adverse inference

or conclusion could be drawn from his decision not to. Lastly,

the court told opposing counsel that he would inform the jurors

that they must keep an open mind until all the government's

evidence had come in and until it was time to deliberate.

Throughout the conversation, at each step of the proposed response,

defense counsel did not object; in fact, they expressly agreed.16

With the proper response settled, the court then asked

opposing counsel, "Do we impart this to all the jurors?" Defense

counsel said, "Why not? They are part of the instructions anyway."

The government expressed cautionary concern because no one knew if

the author of this note had shared their thoughts and impatience

with other jurors. In response to the government's qualm, the

court said that "[f]or the avoidance of doubt, I think it's better

to impart it to all of them." And the jury was brought back in.

The court proceeded to read the note aloud to all jurors

and swiftly quashed the sentiment raised according to the

16One slight caveat. Defense counsel asked the court to phrase Ortiz's right not to testify as his "decision" rather than the court's initial phrasing as his "failure" not to testify. The government and court agreed with this reasonable request.

- 32 - agreed-upon response. After reading both question and response,

the court once again asked opposing counsel for further input or

objections. Neither party accepted the invitation, and the trial

continued.

On appeal, Ortiz claims the note proved "disastrous

pre-instruction deliberation by one juror" and the court's

decision to read the note to the entire jury dealt a "mortal blow

to the presumption of innocence." And due to this irreconcilable

prejudice to Ortiz, he demands "[n]othing short of a new trial."

The government offers three grounds for rejecting Ortiz's request:

(1) his claims were affirmatively waived at trial (much like

Ortiz's previous two challenges to juror notes); (2) under plain

error review, Ortiz has failed to establish obvious error through

binding precedent; and (3) the court's decision to read the note

to all jurors was not prejudicial to him.

This time around, despite the general approval of the

proposed response and lack of objection afterward, Ortiz did not

intentionally relinquish or abandon a known right. See Corbett,

870 F.3d at 30-31. Unlike the previously discussed juror notes,

the court's question "[d]o we impart this to all the jurors?" did

not provide notice to counsel with sufficient clarity that the

court intended to impart not only the approved response but also,

the contents of the note itself. Thus, we disagree with the

government's first response that Ortiz has waived this issue.

- 33 - Still, Ortiz's lack of objection nevertheless leaves his claims to

the perils of plain error review. See, e.g., Chen, 998 F.3d at 7.

Recall that for us to grant the relief Ortiz seeks, he

must prove: (1) that an error occurred (2) which was clear or

obvious under binding precedent and not only (3) affected his

substantial rights, but also (4) "seriously impaired the fairness,

integrity, or public reputation of judicial proceedings." Id.

(quoting United States v. Salley, 651 F.3d 159, 164 (1st Cir.

2011)). To reverse on plain error review, the error below must be

a "blockbuster" and sufficiently prejudicial to create a

"reasonable probability that the outcome of the trial would have

been different had it not occurred." Id. (citation modified).

To meet the first prong of plain error review (that an

error occurred), Ortiz appears to claim two separate errors

entangled in this series of events, either of which he says warrant

a new trial.17 First, he argues that this note evidenced

"disastrous pre-instruction deliberation by one juror" and second,

that it was error for the district court to "read the note aloud,

contaminating all." We will discuss each claim of error in turn.

Within Ortiz's first claim of error, we struggle to fully

discern the extent of the alleged premature deliberations. When

17We read Ortiz's briefing to make two separate claims of error involving this juror note; however, his blending of the inquiries and smattered legal citations complicates the endeavor.

- 34 - first introducing this argument, Ortiz specifically accuses "one

juror" of impermissible premature deliberation. Yet, like dancing

the Bomba y Plena,18 it typically takes more than one juror to

deliberate and, thus, one juror cannot prematurely deliberate

alone -- so long as they keep an open mind about guilt or innocence

until the appropriate time. See McGonagle v. United States, 137

F. App'x 373, 377 (1st Cir. 2005) (explaining that "there is

nothing wrong with jurors engaging in 'mental deliberations'

during trial" so long as they keep an open mind); see also United

States v. Esso, 684 F.3d 347, 351 (2d Cir. 2012) (finding "no harm"

in individual jurors thinking about a case and engaging in "private

'deliberations'" with themselves). And here, while the juror note

uses inflammatory terms like "blackmailing" and "plenty of

evidence," the note posed two questions indicating a

still-existent open mind. Contrary to Ortiz's version of the note,

it did not say the evidence at hand was sufficient to "convict,"

but instead used "verdict" in formulating a question. Moreover,

Bomba y Plena are vibrant, percussion-driven Afro-Puerto 18

Rican musical traditions, often grouped but distinct, rooted in the experiences of enslaved Africans, serving as powerful expressions of culture, resistance, and community storytelling through unique rhythms, call-and-response singing, and dance. Bomba, older and with West African roots, features dynamic drumming (barriles) and dancer-drummer interactions. Plena, from the early 20th century, acts as the "sung newspaper," telling stories of daily life with pandereta drums.

- 35 - the fact that the juror asked if the defendant could testify

demonstrates that they felt Ortiz's fate hadn't been sealed.

A subtle switch emerges in Ortiz's reply brief. There,

he expands the scope of this claim of error to premature

deliberations between multiple jurors. But neither Ortiz nor the

government asked the court to question the author of the juror

note about whether they'd shared their thoughts with other jurors.

Consequentially, the record is silent on whether any premature

discussions took place between the author of this juror note and

any of the other jurors, and the note itself does not prove

otherwise. Cf. United States v. Jadlowe, 628 F.3d 1, 21 (1st Cir.

2010) (concluding the record was silent regarding premature

deliberations despite a flawed instruction permitting discussions

between jurors during trial).

What we can gleam from the record is that, consistent

with what had been agreed upon at least in part, after reading the

note aloud, the district court explicitly informed the jury that

the government needed to present evidence of each count and that

every juror needed to keep an open mind until all evidence had

been presented and until they retired to deliberate. "Pursuant to

well-established precedent, we presume juries understand and

follow the court's instructions." Id. (citation modified). As

such, without indication to the contrary, we presume the author of

this juror note did not prematurely deliberate or express their

- 36 - opinions of Ortiz's guilt or innocence with their peers. See id.

at 22. So, whichever way Ortiz slices his premature deliberation

claim, we see no error warranting a new trial.

For Ortiz's second claim of error stemming from the same

juror note, he appears to argue the court's reading aloud of the

note destroyed the presumption of innocence that he is

constitutionally entitled to.19 Ultimately, we find the district

court's reading of the juror note did not corrupt Ortiz's

presumption of innocence nor did it implicate his Sixth Amendment

right to a fair trial.

Before going any further, our forthcoming analysis does

not endorse the court's decision to read the note to the jury, nor

suggest it could not have been handled better. Any possible

negative implications from reading the note could have been avoided

by either only imparting the agreed-upon response to the entire

jury or calling the author of the note aside for further inquiry.

However, we recognize "[j]udges, like the rest of humankind, are

not perfect" and inadvertent mistakes unavoidably crop up on

occasion. United States v. Maguire, 918 F.2d 254, 267 (1st Cir.

The heading of Ortiz's brief frames all juror-note related 19

arguments as falling under the Sixth Amendment right to a fair trial and Fifth Amendment "rights to remain silent and the presumption of innocence." Yet at oral argument, Ortiz classified this argument for the first time as raising due process concerns; that's too late, meaning the due process aspect is waived. E.g., United States v. Calderon-Zayas, 102 F.4th 28, 37 n.9 (1st Cir. 2024).

- 37 - 1990); see also United States v. Espinal-Almeida, 699 F.3d 588,

608 (1st Cir. 2012) (finding a judge's possibly "inappropriate

commentary" permissible because "a criminal defendant is entitled

to a fair trial, not necessarily a perfect one" (citation

modified)).

Nevertheless, the question before us is whether this

misstep presents an error of constitutional magnitude. Maguire,

918 F.2d at 267. And, as we've previously held, some inadvertent

missteps fall short of the constitutional threshold and can be

corrected without prescribing the strong medicine of a new trial.

See id. (rejecting a claim for a new trial where the district court

erroneously read a severed count of the indictment to the jury);

see also United States v. Rosario-Pérez, 957 F.3d 277, 296 (1st

Cir. 2020) (affirming the denial of defendant's mistrial motion

where the district court referenced a potential appeal in front of

the jury). Here, the district court read the juror note in the

context of its immediate curative instruction without objection.

That instruction clearly and concisely explained the relevant law

including that no negative interference could come from Ortiz's

decision not to testify. The court later reiterated in its final

charge to the jury the importance of the presumption of innocence

and that Ortiz had a constitutional right not to testify.

Emphasizing the latter point, the court cautioned the jury that

- 38 - drawing any negative inference from Ortiz's decision not to testify

would violate the oath they had taken as jurors.

Due to these remedial measures taken by the court after

reading the note aloud, Ortiz has not presented a clear or obvious

error warranting a new trial. See United States v. Polito, 856

F.2d 414, 419 (1st Cir. 1988) ("[T]he strong, firm, and

twice-repeated prophylactic instructions were adequate to dispel

any possible damage."). The court's curative

instructions -- immediately ensuing the reading of the note and

repeated before the jury retired -- left no doubt that Ortiz had

a constitutional right not to testify and that he was entitled to

an unwavering presumption of innocence. Furthermore, the complete

lack of objection to the instructions "deprived the trial judge of

an earlier opportunity to fully evaluate the effect of

his . . . comments upon the jury" and "further militates against

a finding of reversible error." United States v. Ayala-Vazquez,

751 F.3d 1, 25 (1st Cir. 2014). Thus, on this record, we perceive

no clear or obvious error.

E. Double Jeopardy

As we mentioned in our recapitulation of the events

leading to Ortiz's present appeal, the jury (after deliberating)

returned guilty verdicts for all nineteen counts charged in the

indictment. Ortiz alleges that some of these counts impermissibly

punished him twice for the same conduct -- thereby violating the

- 39 - Fifth Amendment's Double Jeopardy Clause. Because Ortiz did not

object or raise this claim at trial, we (again) review for plain

error. United States v. Henry, 519 F.3d 68, 71 (1st Cir. 2008).

The Fifth Amendment provides that no person shall "be

subject for the same offence to be twice put in jeopardy of life

or limb." U.S. Const. amend. V. We have drawn three general

protections from this text: "it shields a defendant from a second

prosecution for the same offense after either conviction or

acquittal, and it also prohibits multiple punishments for the same

offense." United States v. Pacheco, 434 F.3d 106, 111-12 (1st

Cir. 2006) (quoting United States v. Morris, 99 F.3d 476, 478 (1st

Cir. 1996)). Ortiz invokes the third class of protection by

claiming he has received multiple punishments for the same conduct.

To remind the reader, Ortiz was charged and convicted of

nine counts of production of child pornography in violation of 18

U.S.C. § 2251(a), eight counts of coercion and enticement of a

minor in violation of 18 U.S.C. § 2422(b)(2), one count of receipt

of child pornography in violation of 18 U.S.C. § 2252A(a)(2), and

one count of possession of child pornography in violation of 18

U.S.C. § 2252A(a)(5)(B). He asserts two separate double jeopardy

violations: first, that possession of child pornography is a lesser

included offense of receiving child pornography and second, that

because the production of child pornography served as a necessary

element to convict him of coercing and enticing a minor, the former

- 40 - was a lesser included offense of the latter. For reasons that we

will soon provide the reader, we agree with Ortiz's first

constitutional contention and reject his second.

Resolving Ortiz's claims first requires an application

of the "Blockburger test" (otherwise known as the "same-elements

test"). Rodríguez-Méndez v. United States, 134 F.4th 1, 6 (1st

Cir. 2025) (quoting United States v. Dixon, 509 U.S. 688, 696

(1993)). This nearly-century-old test helps settle whether two

offenses are really just one (and, thus, warrant just one

punishment) by determining if each offense requires proof of a

fact that the other does not. Id.; accord Rutledge v. United

States, 517 U.S. 292, 297 (1996). In applying this test, if one

offense is a lesser included offense of the other, we say the two

amount to the "same offense" and thus pose a constitutional problem

in the presence of two convictions. Rutledge, 517 U.S. at 297.

But, if "[e]ach of the offenses created requires proof of a

different element," they are not the same offense and there is no

Double Jeopardy Clause violation. Blockburger v. United States,

284 U.S. 299, 304 (1932); see also Barrett v. United States, 146

S. Ct. 482, 491 (2026) (explaining that "the inquiry generally

ends" if the relevant offenses satisfy the Blockburger test).

Where two statues define the same offense, "the

Blockburger presumption is triggered" and we presume "that

Congress ordinarily does not intend to punish the same offense

- 41 - under two different statutes." Barrett, 146 S. Ct. at 491

(citation modified). But this presumption may ultimately yield to

a "plainly expressed" intent from Congress to abandon it. Id.

(citing Garrett v. United States, 471 U.S. 773, 778-79 (1985)).

In other words, if two statues share common elements, such that

neither requires proof of a distinct element, we "search for a

clear manifestation of Congress's intent to authorize more than

one punishment." Id. Sans that requisite congressional intent,

the Blockburger presumption holds, and the multiple convictions

will be unlawful.

i. Possession and Receipt

Ortiz first argues that his separate convictions for the

possession and receipt of child pornography violate the Double

Jeopardy Clause because possession is a lesser included offense of

receipt. Ortiz's claim has logical fortitude and persuasive

support from our sister circuits who have previously pondered this

question, including under plain error review. See United States

v. Muhlenbruch, 634 F.3d 987, 1002-04 (8th Cir. 2011); United

States v. Miller, 527 F.3d 54, 73 (3d Cir. 2008). His argument,

which relies on those circuit cases and the Supreme Court's

decision in Ball v. United States, builds off a basic premise: one

who receives something (including child pornography) necessarily

possesses that item, at least at the moment of receipt. See Ball

v. United States, 470 U.S. 856, 861 (1985) (holding that Congress

- 42 - did not intend to punish an individual for both possession and

receipt of a firearm because "proof of illegal receipt of a firearm

necessarily includes proof of illegal possession of that weapon");

United States v. Bobb, 577 F.3d 1366, 1372 (11th Cir. 2009); United

States v. Davenport, 519 F.3d 940, 943 (9th Cir. 2008); see also

United States v. Johnston, 789 F.3d 934, 938 (9th Cir. 2015) ("A

majority of circuits that have considered the question agree that

possession of child pornography is a lesser included offense of

receipt and that imposing convictions under both statutes for the

same conduct violates the Double Jeopardy Clause. Two additional

circuits have signaled their agreement . . . without explicitly

deciding the issue."). Based on that caselaw, Ortiz asserts that

the error of his two convictions for possessing and receiving child

pornography is "legally obvious under established law." See

Miller, 527 F.3d at 73 (analogizing to Ball to conclude that

entering separate convictions for possession and receipt of child

pornography was plain error).

The government acknowledges that several courts of

appeals have found the possession of child pornography to be a

lesser included offense of receipt. Nevertheless, it argues no

error occurred because separate facts and evidence support Ortiz's

separate possession and receipt convictions, thereby avoiding any

double jeopardy complications.

- 43 - The government peddles this "separate evidence" theory

for the first time before our court. The basic idea behind this

theory is that Ortiz received child pornography from his minor

victims but possessed separate child pornography depicting other

minors on his cell phones when they were seized. From our review

of the record, the government's separate evidence theory has legs.

It appears that Ortiz possessed separate images that could have

formed the basis of a distinct possession conviction. The problem

is that the government never (despite numerous opportunities)

prosecuted Ortiz's possession charge based on those images of

minors other than his victims.

Other courts have accepted a separate evidence

justification when considering the same double jeopardy issue

raised by Ortiz, and those courts appropriately upheld multiple

convictions for the possession and receipt of child pornography

where separate evidence formed the basis of each conviction.

United States v. Halliday, 672 F.3d 462, 471 (7th Cir. 2012); see

also United States v. Schnittker, 807 F.3d 77, 83 (4th Cir. 2015)

("The federal courts of appeals have relied on various

manifestations of distinct conduct to determine that separate

counts were not the same in fact."). But, unlike the circumstances

where courts have affirmed multiple convictions based on separate

evidence (and thus avoided this double jeopardy issue), the current

record does not provide a basis for us to conclude that Ortiz's

- 44 - possession and receipt convictions were based on separate

evidence. See United States v. Benoit, 713 F.3d 1, 17 (10th Cir.

2013) ("Based on the entire record, it is abundantly clear that

the jury convicted [the defendant] of both receipt and possession

based on the same visual depictions."); United States v. Schales,

546 F.3d 965, 980 (9th Cir. 2008) (holding that "[o]n this record,

we cannot conclude that [the defendant] was convicted for separate

conduct" after scrutinizing the indictment, jury instructions, and

verdict form). Several happenings below lead us to this result.

First, neither count twelve (receipt)20 nor count

thirteen (possession)21 of the indictment charged Ortiz with

distinct conduct specific to each offense. Particularly, both

counts refer to an overlapping time period and similar conduct

through the vehicle of his cell phones that could have been proven

by the government with the same evidence. Compare Benoit, 713

F.3d at 17 (finding the government failed to charge the defendant

"for two distinct acts" in the indictment), with Bobb, 577 F.3d at

1375 (referencing an indictment's distinct dates for two separate

20Count twelve alleged that Ortiz "received images depicting actual minor females engaged in sexually explicit conduct via internet instant messaging services and social media messages using his cellular phones" from "in or about August, 2019 through in or about May, 2020." 21Count thirteen alleged that Ortiz "possessed still images depicting minors engaged in sexually explicit conduct on his cellular phones" from "in or about August, 2019 through on or about June 10, 2020."

- 45 - offenses), and United States v. Sturm, 673 F.3d, 1274, 1288 (10th

Cir. 2012) (finding a defendant was properly convicted of distinct

possession and receipt offenses, in part, due to the fact that

"the indictment charged him with knowing possessing of three

specific images of child pornography").

Second, the government did not specify in its opening or

closing arguments that certain images formed the basis of the

possession count and that other images were to be considered as

the basis for the receipt count. This is not to suggest that the

government's arguments are evidence, but we recognize that other

courts have accepted clear prosecutorial arguments that tethered

separate evidence to separate charges as proof that the jury did

not impermissibly base multiple convictions on the same evidence.

Halliday, 672 F.3d at 471; see also Johnston, 789 F.3d at 939

(rejecting the government's separate conduct theory, in part,

because "[t]he prosecutor repeatedly referred to the receipt and

possession counts in the same breath without any indication that

the jury was required to consider separate conduct for each

count"). Although the government mentioned in its closing argument

the existence of child pornography that Ortiz possessed not

depicting his victims, it told the jury "[a]s to the count relating

to possession of child pornography, it would both include the

images he possessed of the identified minors and any additional

images of child pornography that were found in the phone devices."

- 46 - Likewise, the government also stated in its closing remarks that

"the count relating to receipt of child pornography, it includes

any and all images that were received of child pornography during

that span of time." These statements leave us far from convinced

that the prosecution clarified its separate evidence theory for

the jury, or that the jury returned its guilty verdict on count

thirteen based on Ortiz possessing separate images not depicting

his victims.22

Furthermore, neither the jury instructions nor the

verdict form made any distinction as to what evidence should have

been separately considered for Ortiz's receipt and possession

charges. Cf. Sturm, 673 F.3d at 1288 ("The jury was specifically

instructed as to which images were associated with which count,

and found [the defendant] guilty on both counts."). So, after

combing through the record, we cannot conclude that Ortiz was

convicted of receiving and possessing child pornography based on

separate evidence. See Schales, 546 F.3d at 980.

Beyond its separate evidence theory, the government does

not advance any argument in the alternative that Ortiz's

22The government also argued (out of the jury's presence) that the court could consider all the child pornography Ortiz received and possessed during the time span identified in the indictment when opposing Ortiz's Rule 29 motion for judgment of acquittal. The relevance being, the government was not pursuing convictions based on the separate evidence theory that it now raises to fend off Ortiz's double jeopardy claim.

- 47 - convictions for both possession and receipt of child pornography

is not a double jeopardy violation. Nor does it dispute that such

violation is not clear or obvious. Therefore, "the government has

waived th[ose] backup position[s]." United States v.

Ramos-Gonzalez, 775 F.3d 483, 506 (1st Cir. 2015) (applying

appellee waiver on plain error review). Accordingly, we conclude

that Ortiz has satisfied the first two plain-error prongs.

Moving to the third plain-error prong, the separate

convictions for possession and receipt of child pornography were

prejudicial to Ortiz. To be clear, the court imposed 240-month

sentences for Ortiz's possession and receipt convictions to be

served concurrently with his 360-month sentence imposed for his

remaining convictions. So, Ortiz wouldn't have spent any

additional time incarcerated due to the separate possession and

receipt convictions. However, as the Court stated in Ball, "[t]he

second conviction, whose concomitant sentence is served

concurrently, does not evaporate simply because of the concurrence

of the sentence." 470 U.S. at 864-65. Various potential adverse

consequences can follow from the additional conviction, id., not

to mention the fact that the district court ordered Ortiz to pay

a mandatory $100 special assessment for each conviction, see

Muhlenbruch, 634 F.3d at 1004. The government does not contend

otherwise. Thus, the double jeopardy violation at issue subjected

Ortiz to multiple punishments and prejudiced him as a result.

- 48 - On our last stop in the plain-error gauntlet, we further

conclude this error threatens the fairness, integrity, and public

perception of our judicial system. To borrow the persuasive

reasoning of our sister courts, "because the prohibition against

double jeopardy is a cornerstone of our system of constitutional

criminal procedure, this error threatens the fairness, integrity,

and public reputation of our judicial proceedings." Davenport,

519 F.3d at 947-48. We agree with this sentiment, and, again, the

government makes no contrary argument.

To close the loop on this issue, we reject the

government's separate evidence theory raised on appeal and find

that Ortiz's separate convictions for receiving and possessing

child pornography violate the Double Jeopardy Clause. The

government opted to paint a broad picture for the jury: Ortiz

received child pornography from his minor victims and was found in

possession of the same. This prosecutorial decision was well

within the government's discretion, as was the choice not to limit

the possession and receipt charges to specific evidence. See

Garrett, 471 U.S. at 789 n.2 ("The Government . . . is responsible

for initiating a criminal prosecution, and subject to applicable

constitutional limitations it is entitled to choose those offenses

for which it wishes to indict and the evidence upon which it wishes

to base the prosecution."). But that decision denied Ortiz the

opportunity to mount a separate defense in opposition to the

- 49 - government's separate evidence theory. See Price v. Georgia, 398

U.S. 323, 331 (1970) ("The Double Jeopardy Clause, as we have

noted, is cast in terms of the risk or hazard of trial and

conviction, not the ultimate legal consequences of the verdict.").

As a result, we adopt "the most salubrious course" and

remand to the district court to vacate Ortiz's conviction and

sentence, including the $100 special monetary assessment, for

either count twelve or count thirteen. United States v. Chiaradio,

684 F.3d 265, 284 (1st Cir. 2012); Rutledge, 517 U.S. at 307

("Accordingly, one of petitioner's convictions, as well as its

concurrent sentence . . . must be vacated." (citation modified)).

Because Ortiz was sentenced to 360 months' imprisonment on the

remaining seventeen counts, this remedy would likely only require

a monetary adjustment on remand for the district court to enter

judgment consistent with this opinion. United States v. King, 554

F.3d 177, 181 (1st Cir. 2009).23

ii. Production and Coercion

Ortiz's second double jeopardy claim involves his

convictions for the production of child pornography and the

23 To preview our forthcoming conclusions on Ortiz's second double jeopardy challenge and his challenge to the substantive reasonableness of his 360-month sentence, his remaining convictions and sentence may stand. The district court may resentence Ortiz on the surviving eighteen counts, or, in the alternative, allow the sentences on those counts to remain intact. Chiaradio, 684 F.3d at 284.

- 50 - coercion and enticement of a minor. Here, Ortiz claims that the

district court erred by allowing his production convictions to

serve as essential elements of proof that he coerced or enticed

minors -- thereby turning the production of child pornography into

a lesser included offense of coercing and enticing a minor. But

unlike his previous double jeopardy claim, Ortiz has failed to

establish error because the statutes for producing child

pornography and coercing and enticing a minor do not trigger the

Blockburger presumption.

To apply the Blockburger test, we turn our attention to

the statutes of conviction. See United States v. Morris, 99 F.3d

476, 479 (1st Cir. 1996) ("[T]he Blockburger rule depends on

statutory analysis, not on evidentiary comparisons."). The

offense of producing child pornography in violation of 18 U.S.C.

§ 2251(a) requires proof of the following:

(1) the defendant employed, used, persuaded, induced,

enticed, or coerced a minor to engage in any sexually

explicit conduct;

(2) the defendant engaged in this act for the purpose of

producing a visual depiction of such conduct; and

(3) the defendant knew or had reason to know that the visual

depiction would be transported or transmitted using any

means or facility of interstate or foreign commerce.

- 51 - Meanwhile, the offense of coercion or enticement of a minor in

violation of 18 U.S.C. § 2422(b) requires proof that:

(1) the defendant knowingly persuaded, induced, enticed, or

coerced;

(2) through the mail or any facility or means of interstate

or foreign commerce;

(3) any individual who has not attained the age of 18 years;

(4) to engage in prostitution or any sexual activity for

which any person can be charged with a criminal offense.

In resolving Ortiz's claim, we join the three circuits

to have considered this question and find that the production of

child pornography offense and the coercion or enticement of a minor

offense each require proof of an element that the other does not.

See United States v. Sanchez, 30 F.4th 1063, 1077 (11th Cir. 2022);

United States v. Isabella, 918 F.3d 816, 848-49 (10th Cir. 2019);

United States v. Hart, 635 F.3d 850, 858 (6th Cir. 2011). The

production of child pornography offense requires the government to

prove that an individual acted intentionally to produce a visual

depiction, a fact not required for the coercion or enticement of

a minor offense. Compare 18 U.S.C. § 2251(a), with id. at

§ 2422(b). The coercion or enticement of a minor offense requires

the government to prove that the defendant knowingly coerced a

minor to engage in "any sexual activity for which any person can

be charged with a criminal offense," a fact immaterial to proving

- 52 - the elements of the production offense. Compare 18 U.S.C.

§ 2422(b), with id. at § 2251(a). See Hart, 635 F.3d at 858

(drawing the same distinction). Because these two offenses require

proof of a fact that the other does not, they are separate offenses

and Ortiz's convictions do not offend the Double Jeopardy Clause.

See, e.g., Rodríguez-Méndez, 134 F.4th at 6.

Not so fast, says Ortiz. The government proved the

"criminal offense" element of the coercion offense only with

evidence that he produced child pornography making the two

offenses, in effect, the same offense. Not quite. For starters,

multiple convictions for the same conduct are permissible so long

as the charged offenses require the government to prove different

elements (i.e., so long as they pass the same-elements/Blockburger

test). See id. at 6 n.3; see also United States v. Sepulveda, 102

F.3d 1313, 1316 (1st Cir. 1996) ("[A] defendant can be convicted

of two differently defined offenses, based on the same core of

facts, so long as each offense requires an element that the other

does not."). Under similar circumstances (legally, not factually,

speaking) we held a defendant could be prosecuted under the

fugitive in possession of a firearm statute despite an earlier

conviction for failing to appear before the court. See United

States v. Colon-Osorio, 10 F.3d 41, 46 (1st Cir. 1993). In that

instance, after faithfully applying the Blockburger test, we

determined that the same conduct of "bail jumping" could

- 53 - simultaneously establish both the elements of the failing to appear

offense and the "fugitive" element of the fugitive in possession

offense, without implicating double jeopardy. See id. at 45.

Similarly, Ortiz's repeated requests for sexual images of his minor

victims (his conduct) can establish the required elements of the

production of child pornography offense while also serving as an

element in proving the coercion or enticement of a minor. So,

Ortiz has failed to show a double jeopardy violation occurred and

his convictions for these offenses stand.

F. Sentencing

In the last leg of Ortiz's appeal, he challenges the

substantive reasonableness of his 360-month sentence.24 Because

Ortiz argued for a shorter sentence before the district court, he

preserved this challenge and, therefore, we review for abuse of

24 Because Ortiz's sentencing claim relates only to the substantive reasonableness of his 360-month sentence, we see little reason not to address this fully briefed and argued issue despite our decision to remand for the district court to vacate either Ortiz's possession or receipt conviction. Cf. United States v. Mercedes-De La Cruz, 787 F.3d 61, 70 (1st Cir. 2015) (resolving a claim of sentencing error despite vacating defendant's conviction). To reorient the reader, the district court ordered Ortiz to a term of 360 months' imprisonment for counts one to eleven and counts fourteen to nineteen, with concurrent terms of 240 months' imprisonment for counts twelve and thirteen (the receipt and possession counts). Ortiz does not challenge his 240-month sentences, and we reject his claim of substantive reasonableness so that the district court may choose at its discretion to leave his 360-month sentence in place on remand. Chiaradio, 684 F.3d at 284.

- 54 - discretion. United States v. Melendez-Hiraldo, 82 F.4th 48, 56

(1st Cir. 2023).

The twin pillars of a substantively reasonable sentence

are a plausible rationale from the sentencing court and a

defensible outcome. See, e.g., United States v. Colcord, 90 F.4th

25, 30 (1st Cir. 2024). And for any given defendant there exists

"a universe of reasonable sentencing outcomes." Id. (quoting

United States v. Clogston, 662 F.3d 588, 592 (1st Cir. 2011)).

Our role is not to second-guess a sentencing court's reasoned

judgment, but to correct a sentence only if it lies beyond the

expansive boundaries of the universe of reasonable sentences.

United States v. Matos-de-Jesús, 856 F.3d 174, 179-80 (1st Cir.

2017). Lastly, we add that Ortiz faces a particularly heavy burden

to prove his sentence is unreasonable because he challenges a

downwardly variant sentence from the sentence calculated using the

United States Sentencing Guidelines ("Guidelines"). See United

States v. Concepcion-Guliam, 62 F.4th 26, 36 (1st Cir. 2023).

To attempt to meet that heavy burden, Ortiz argues that

the district court's downward variance represented a "wide-spread

rejection of the Guidelines," but the court failed to "acknowledge

factors that mitigate this offense and offender."25 But, contrary

25Ortiz also refences various statistics and studies on district courts' rejections of Guidelines sentences for child pornography production. We too have recognized this trend. See Colcord, 90 F.4th at 31 & n.2. But the fact that Ortiz's sentence

- 55 - to Ortiz's vantage, our review of the sentencing transcript

indicates due consideration of both offense and offender. At

Ortiz's sentencing hearing, the court provided a thorough

recitation of its reasoning. It first noted the Presentence

Investigation Report correctly calculated a Guideline imprisonment

term of life.26 The court then acknowledged Ortiz's mental health

and medical conditions, his dependent daughter, his limited

criminal history, his family ties, and his employment history.

However, the court also weighed "the heinous nature and

circumstances of the offense" which involved "nine female minor

victims who were coerced into taking pornographic images under

circumstances that evidenced great malice and cruelty." Given the

court's attention to the relevant factors and the Guidelines, we

cannot give credence to Ortiz's assertion that "[t]he record holds

no answer" as to why he received a thirty-year sentence.

Likewise, the court's imposed sentence represents a

defensible result. In just a few months, Ortiz contacted and

coerced eight minor females into sending him sexually explicit

photographs. Ortiz began by requesting photos of victims' armpits,

exceeds the out-of-context average he cites, alone, does not make the district court's judgment unreasonable. See id. (explaining that there is no requirement for a district court to conform to the categorical policy disagreements of other courts). Ortiz has not appealed the calculation of the Guidelines 26

sentencing range.

- 56 - sometimes with the promise of payment. After receiving armpit

photos, he would post the pictures to his Instagram page often

tagging the minor victims. When the minors asked Ortiz to remove

the posts, he said only in exchange for more photos, but this time

of their faces, breasts, and genitals. After Ortiz convinced his

victims to send sexually explicit images, he once again escalated

his demands for more pictures (including pictures of one victim's

younger sister) and videos of his victims masturbating (a word he

often had to explain to his unaware victims). When Ortiz's victims

resisted and pleaded for him to stop, he threatened to post their

nude photos on the internet or send them to the victim's

classmates, and the latter threat he followed through on by

disbursing nude images of KMC to her peers. Ortiz also took the

opportunity to send one eleven-year-old victim images of his penis.

Based on the district court's reasoned consideration of

the relevant factors, and the facts of Ortiz's offenses, we cannot

say that his downwardly-variant sentence stretched beyond the

universe of reasonable sentences. See Concepcion-Guliam, 62 F.4th

at 36.

III.

For the reasons elucidated above, we reject all of

Ortiz's claims of error, except for his double jeopardy claim

pertaining to counts twelve and thirteen.

- 57 - Affirmed in part and remanded for further proceedings

consistent with this opinion.

- 58 -