United States Court of Appeals For the First Circuit
No. 17-1879
UNITED STATES OF AMERICA,
Appellee,
v.
RODOLFO VÁZQUEZ-SOTO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, Chief U.S. District Judge]
Before
Torruella, Lipez, and Thompson, Circuit Judges.
Jessica E. Earl, Research and Writing Specialist, with whom Eric Alexander Vos, Federal Public Defender, and Vivianne M. Marrero, Assistant Federal Public Defender, Supervisor, Appeals Section, were on brief, for appellant. Francisco A. Besosa-Martínez, Assistant United States Attorney, with whom Rosa Emilia Rodríguez–Vélez, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.
October 1, 2019 LIPEZ, Circuit Judge. After a six-day trial and four
days of deliberation, a jury convicted appellant Rodolfo
Vázquez-Soto on two counts of making false statements and one count
of theft of government property. See 18 U.S.C. §§ 1001, 641, 2.
The district court sentenced him to five years' probation and
ordered him to pay restitution in the amount of $19,340.79.
Vázquez-Soto appeals his convictions on all counts, arguing that
the district court (1) erred in denying his motion for a judgment
of acquittal because the evidence was insufficient to sustain his
convictions; (2) abused its discretion in admitting into evidence
photographs taken from a Facebook page under the name of his ex-
wife; and (3) further abused its discretion when it declined to
provide the jury with the transcript of certain witness testimony
and did not inform the jury that it could request a readback of the
testimony. We conclude that sufficient evidence supported Vázquez-
Soto's convictions, and that the district court did not abuse its
discretion in allowing admission of the challenged Facebook photos
despite an authentication objection or in its response to the jury's
request for a transcript. Accordingly, we affirm.
I.
A. Factual Background
"Because this appeal pertains, in part, to the
Defendant['s] motion[] for acquittal before the district court, we
recount the facts here in the light most favorable to the
- 2 - government." United States v. Fernández-Jorge, 894 F.3d 36, 41
(1st Cir. 2018) (internal quotation marks omitted). Vázquez-Soto
was a mail carrier for the United States Postal Service ("USPS")
with a long history, supposedly, of back problems for which he
received substantial disability benefit payments for many years.
His problems began in 1989 when he suffered a back injury while
lifting a heavy tray at work. He filed a claim with the Department
of Labor's Office of Workers' Compensation Programs ("OWC"),
supported by medical documentation of the injury and a
recommendation of physical therapy. The OWC accepted the claim and
granted him forty-five days of paid leave.
Following his return to work, Vázquez-Soto was granted
limited work duty and accommodations for his back pain. For the
next nine years, Vázquez-Soto worked for the USPS with limited duty
assignments. He was annually examined by a physician, Luis Faura-
Clavell ("Dr. Faura"), and, each year, he submitted the requisite
OWC paperwork documenting his continuing need for a limited duty
assignment.1 Then, in 1998, he filed a recurrence claim, asserting
that his original condition had worsened. He was evaluated by two
1 To receive disability benefits, an injured government employee must "submit to examination by a medical officer of the United States . . . after the injury and as frequently and at the times and places as may be reasonably required." 5 U.S.C. § 8123(a).
- 3 - doctors, selected by the OWC, and each recommended that he could
continue working with a reduced schedule and accommodations.
The next year, Vázquez-Soto filed another recurrence
claim, again asserting that his condition had worsened. In April
1999, he was examined by Dr. Faura, who reported him as totally
disabled and incapable of even limited duty work. Dr. Faura
submitted the requisite OWC paperwork stating that Vázquez-Soto was
totally disabled and recommending retirement. Although the OWC
initially rejected Vázquez-Soto's claim of total disability, it
reversed its position in 2001, and accepted the claim retroactively
to April 1999. Accordingly, it paid Vázquez-Soto total disability
payments from the date of Dr. Faura's April 1999 letter, and
determined that he would be paid full disability benefits going
forward.
For over a decade, Vázquez-Soto filed annual claims of
total disability, Dr. Faura submitted supporting documentation, and
Vázquez-Soto collected disability payments. In 2012, the USPS
Office of Inspector General began investigating those claims for
possible fraud. As part of the investigation, the OWC instructed
Vázquez-Soto to report to a new doctor, Fernando Rojas-Díaz ("Dr.
Rojas"), for a second medical opinion. After examining Vázquez-
Soto in February 2013, Dr. Rojas reported inconsistencies between
Vázquez-Soto's apparent physical condition and his clinical
complaints. The doctor concluded that, although Vázquez-Soto was
- 4 - disabled, he was capable of returning to his "date-of-injury [] job
but with restrictions."
The investigating agent assigned to Vázquez-Soto's case
also examined his compensation history and found that, although
Vázquez-Soto had received $448,000 in benefits, his medical
expenses only totaled $8,000. The agent then coordinated video
surveillance of Vázquez-Soto to be conducted by FBI agents and
local agents at Vázquez-Soto's home and other locations. The
surveillance team captured video footage of Vázquez-Soto carrying
a large picture frame from his car into a building, riding a
motorcycle while wearing a heavy helmet and carrying a satchel,
driving a car, and walking and maneuvering his neck, arms, and
shoulders with ease.
Additionally, an undercover special agent, Cassandra
Cline, posed as an OWC representative and summoned Vázquez-Soto for
a "Current Capacity Evaluation," also called a "rehab interview."
During the interview, Vázquez-Soto attested to his inability to
work or drive a car for more than an hour, and his total disability.
Following the investigation, Vázquez-Soto was charged
with four counts of making false statements in violation of
18 U.S.C. § 1001 (Counts I to IV) and one count of theft of
government property in violation of 18 U.S.C. §§ 641 and 2 (Count
V). Counts II and III were subsequently dismissed by the
- 5 - government, and Vázquez-Soto proceeded to trial on Counts I, IV,
and V.
B. The Trial
At trial, the government called a series of law
enforcement agents and OWC representatives to testify about the
fraud investigation. The government also produced as evidence
surveillance videos, video of the undercover rehab interview, and
government documents, spanning many years, signed by Vázquez-Soto
and attesting to his inability to work.
One of the investigating agents, José Morales, testified
about digital photographs that he downloaded from a Facebook page
bearing the name of Vázquez-Soto's ex-wife, Carmen Rosa Janica.
Morales explained that he found the photographs when he conducted
an online "inquiry" concerning Vázquez-Soto. In conducting that
inquiry, the agent searched for Janica on social media websites,
including Facebook, and found a Facebook page under her name. On
that page, Morales discovered a series of digital photograph
albums, uploaded in 2010, that depicted Vázquez-Soto traveling in
Colombia. When he looked through these albums, he recognized
Vázquez-Soto2 and downloaded the photographs, which he kept on his
computer until the trial.
2 Morales correctly identified Vázquez-Soto at trial.
- 6 - Though the photographs were uploaded to Facebook in 2010,
one had a 2008 date stamp. The others were not dated. The
photographs show, inter alia: (1) Vázquez-Soto and a woman dressed
in motorcycle club T-shirts standing in front of a group of
motorcycles; (2) Vázquez-Soto standing among a large group of
people dressed in motorcycle club T-shirts (with a date stamp of
12/21/08 on the photograph); (3) Vázquez-Soto among a group of
people, each wearing a motorcycle helmet and standing next to a
motorcycle; (4) Vázquez-Soto and another person on a motorcycle,
each wearing a helmet; (5) Vázquez-Soto seated on a motorcycle in
front of a large body of water; (6) Vázquez-Soto wearing a life-
jacket standing in front of palm trees and what looks like a river;
(7) Vázquez-Soto entering a paddle boat; (8) Vázquez-Soto standing
in front of a waterfall; (9) Vázquez-Soto and a woman doing what
appears to be dancing; and (10) Vázquez-Soto standing behind a
motorcycle. Defense counsel objected to the introduction of these
photographs as irrelevant, prejudicial, and not properly
authenticated. The court noted the objection but admitted the
photographs into evidence.
The government also called as witnesses Dr. Faura and
Dr. Rojas, who each testified about his prior examination of
Vázquez-Soto and whether his disability findings were consistent
with the abilities demonstrated by Vázquez-Soto in the surveillance
videos and in the photographs. Dr. Faura testified that "[i]f this
- 7 - patient is driving a motorcycle, is wearing a helmet, is holding
the motorcycle which is 400 pounds with his legs . . . he cannot
be disabled." Dr. Rojas -- when asked by the government, "how do
you explain . . . [your finding that the defendant] had those
disabilities and [] restrictions, [and] the videos that you're
looking at and the pictures?" -- testified, "I was fooled."
The defense called, as its sole witness, Dr. Rafael E.
Sein-Sierra ("Dr. Sein"). Dr. Sein testified that Vázquez-Soto has
"limited functional physical capabilities" and that the
surveillance videos did not change his assessment. He based his
testimony on a medical report, admitted into evidence, that he
authored about Vázquez-Soto's medical condition. Dr. Sein
explained that he concluded in his report that Vázquez-Soto's
condition is permanent and likely to worsen over time. Dr. Sein's
testimony lasted more than an hour and was followed by cross-,
redirect-, and re-cross-examination. After the re-cross, Vázquez-
Soto moved for a judgment of acquittal under Rule 29 of the Federal
Rules of Criminal Procedure, which the court denied.
The jury deliberated for four days. At the end of the
first day of deliberations, the jury requested a transcript of the
testimony of Dr. Sein. The district court denied the request, over
defense counsel's objection. The court also denied defense
counsel's request for a "readback" of Dr. Sein's testimony and
counsel's request that the jury be informed that it could request
- 8 - such a readback. Instead, the court instructed the jurors to rely
on their memory, notes, and Dr. Sein's report.3 On the fourth day
of deliberations, the jury returned a verdict of guilty on all
three counts. Vázquez-Soto then renewed his Rule 29 motion and
moved for a new trial under Rule 33, see Fed. R. Crim. P. 29(c),
33, which the court denied. This appeal followed.
On appeal, Vázquez-Soto argues that (1) the evidence
introduced at trial was insufficient to support his convictions,
(2) the Facebook photos should not have been admitted into
evidence, and (3) the district court should have provided the jury
with a transcript or readback of Dr. Sein's testimony, or, in the
alternative, informed the jury that it could request a readback.
We consider each argument in turn.
II.
We review a challenge to the sufficiency of the evidence
de novo, taking the evidence in the light most favorable to the
jury's verdict. United States v. Santos-Soto, 799 F.3d 49, 56-57
(1st Cir. 2015). "The verdict must stand unless the evidence is
so scant that a rational factfinder could not conclude that the
government proved all the essential elements of the charged crime
3 The sequence of events concerning the request for a transcript or readback is described in more detail in our analysis. See infra Section IV.
- 9 - beyond a reasonable doubt." United States v. Rodríguez-Vélez, 597
F.3d 32, 39 (1st Cir. 2010).
A. False Statements
To sustain a conviction for making false statements, the
government must prove that the defendant (1) made a material, false
statement (2) in a matter within the jurisdiction of the government
(3) knowing that the statement was false. See 18 U.S.C. § 1001;
United States v. Notarantonio, 758 F.2d 777, 785 (1st Cir. 1985).
Vázquez-Soto argues that his convictions on Counts I and IV,
charging false statements in his 2013 disability benefits paperwork
and in the rehab interview, respectively, must be vacated because
the government failed to introduce enough evidence for a reasonable
juror to conclude, beyond a reasonable doubt, that he knew that his
statements of total disability were false.4 He argues that the
evidence at trial showed that he "believed his doctors" and simply
repeated their assessments in his paperwork and rehab interview.
Evidence of a defendant's culpable state of mind may be
"gleaned from . . . circumstantial evidence presented at trial."
United States v. Troisi, 849 F.3d 490, 494 (1st Cir. 2017)
(internal quotation marks omitted). Here, the jury saw video
evidence of Vázquez-Soto engaged in strenuous activity, such as
4 Vázquez-Soto does not challenge the sufficiency of the evidence as to any element of the false statements crimes other than knowledge.
- 10 - carrying a large picture frame and riding a motorcycle, within days
of his statements of total disability. The jury heard testimony
from Vázquez-Soto's examining doctors that the video footage of
Vázquez-Soto and the Facebook photographs were inconsistent with
Vázquez-Soto's reports of debilitating pain. In addition, the jury
heard the testimony of Agent Cline, who conducted the rehab
interview. She testified that, during the interview, Vázquez-Soto
conveyed "the impression . . . that he cannot move his neck," and
stated that his daily activities were hampered by "muscle spasms."
The jury could compare this testimony to the video footage, taken
only days prior, which showed Vázquez-Soto wearing a heavy helmet
and maneuvering his car and motorcycle with ease. From this
evidence, the jury easily could have drawn the plausible inferences
that Vázquez-Soto was exaggerating his experience of pain -- rather
than merely repeating the diagnoses of his doctors -- and that,
when he claimed to be totally disabled in his 2013 paperwork and
rehab interview, he knew that his statements were false.
B. Theft of Government Property
Vázquez-Soto's challenge to the sufficiency of the
evidence as to Count V, charging theft of government property,
fails for the same reasons. He again attacks the adequacy of the
government's evidence as to knowledge, arguing that the government
introduced no evidence from which a reasonable factfinder could
- 11 - conclude that he knowingly accepted government benefits to which
he was not entitled. See 18 U.S.C. § 641 (requiring knowledge).
The same evidence supporting a reasonable inference that
he knew that his claims of total disability were false also supports
a reasonable inference that he knew that he was not entitled to the
government benefits that he accepted. As noted, the jury heard
Dr. Rojas's testimony that Vázquez-Soto had "fooled" him, and
Dr. Faura's testimony that Vázquez-Soto "[could not] be disabled"
and ride a motorcycle with a heavy helmet. "The jury was entitled
to credit [the doctors'] testimony" and "to rely on [the] plausible
inferences drawn from the combination of that testimony and the
government's other evidence," including the discrepancy between the
amount of money that Vázquez-Soto accepted and the amount that he
spent on medical care, and the photographs and video of him engaged
in strenuous physical activity. United States v. Domínguez-
Figueroa, 866 F.3d 481, 485 (1st Cir. 2017) (internal quotation
marks omitted). Viewed in its totality, the government's evidence
justified an inference that Vázquez-Soto intentionally overstated
his impairment to his doctors and in his OWC paperwork to receive
payments to which he knew he was not entitled.
III.
Vázquez-Soto argues that the district court erred by
admitting the Facebook photographs. Because the government
introduced no evidence that the Facebook page actually belonged to
- 12 - Vázquez-Soto's ex-wife, and because it knew only when the
photographs were uploaded to the Facebook page (2010), but not
exactly when the photographs were taken, he asserts that the
photographs were unauthenticated. See Fed. R. Evid. 901. He also
contends that the photographs were irrelevant, see Fed. R. Evid.
401, 402, and unfairly prejudicial, see Fed. R. Evid. 403. We
review these claims of evidentiary error for abuse of discretion.
United States v. Pérez-González, 445 F.3d 39, 47 (1st Cir. 2006).
A. Authentication
"The test of authenticity is straightforward." United
States v. Holmquist, 36 F.3d 154, 167 (1st Cir. 1994). "The
standard the district court must apply in evaluating a[n] [item]'s
authenticity is whether there is enough support in the record to
warrant a reasonable person in determining that the evidence is
what it purports to be." United States v. Blanchard, 867 F.3d 1,
6 (1st Cir. 2017) (internal quotation marks omitted); Fed. R. Evid.
901(a). This requirement may be met with various forms of evidence,
including "[t]estimony that an item is what it is claimed to be"
or evidence of "[t]he appearance, contents, substance, internal
patterns, or other distinctive characteristics of the item, taken
together with all the circumstances." Fed. R. Evid. 901(b)(1),(4).
1. Social Media
Vázquez-Soto argues that, because the photographs were
found on a Facebook page, we must address the evidentiary rules for
- 13 - "authenticating social media data," and that, under these rules, a
proponent of social media evidence "must present a prima facie case
. . . that [the social media evidence] is in fact a posting on a
person's Facebook page," in this case the page of Janica, Vázquez-
Soto's ex-wife. Without Janica's testimony that the photographs
came from her Facebook page, or other evidence akin to it, Vázquez-
Soto argues that the government failed to meet this requirement.
We disagree with the premise of Vázquez-Soto's argument.
The authenticity of Janica's social media account is not at issue
in this case -- that is, the account's ownership is not relevant.
The photographs were introduced as images of Vázquez-Soto on a
motorcycle trip, not as part of a social media statement by Janica.
Thus, what is at issue is only the authenticity of the photographs,
not the Facebook page.5 And, as the Sixth Circuit has observed,
5 Of course, there are cases in which ownership of a social media account would be relevant. For instance, if a Facebook user under the name Sally Smith posted a photograph of an empty vault with the caption "I robbed a bank," and the government sought to introduce a copy of that photograph and caption into evidence at Sally Smith's trial for bank robbery, the account's authenticity would be at issue because the Facebook post would only be a relevant admission if the account were actually Sally's. Cf. United States v. Vayner, 769 F.3d 125, 131 (2d Cir. 2014) (finding inadmissible a printout from a Facebook page under the name of the defendant, where the government presented the printout as evidence of the defendant's statements but "did not provide a sufficient basis on which to conclude that the proffered printout was what the government claimed it to be -- [the defendant's] profile page"). Indeed, if a proponent of social media evidence seeks to introduce the evidence to show that "the [social media] page or a post is that of a particular person, authenticity standards are not automatically satisfied by the fact that the post or the page is
- 14 - "it is not at all clear . . . why our rules of evidence would treat
electronic photos that police stumble across on Facebook one way
and physical photos that police stumble across lying on a sidewalk
a different way." United States v. Farrad, 895 F.3d 859, 879-80
(6th Cir. 2018). Accordingly, the ordinary rules of authentication
apply, and the question we must ask in assessing the district
court's ruling is whether there was sufficient evidence for a
reasonable factfinder to conclude that the photographs were what
the government represented they were -- photographs of Vázquez-
Soto.
2. The Identification of Vázquez-Soto
"A photograph's contents, buttressed by indirect or
circumstantial evidence, can form a sufficient basis for
authentication even without the testimony of the photographer or
some other person who was present at the time it was taken."
Holmquist, 36 F.3d at 169; see also id. ("A witness qualifying a
photograph need not be the photographer or see the picture taken;
it is sufficient if he recognizes and identifies the object depicted
and testifies that the photograph fairly and correctly represents
it." (quoting United States v. Clayton, 643 F.2d 1071, 1074 (5th
in that person's name . . . because someone can create a . . . social media page in someone else's name." Hon. Paul W. Grimm et al., Authenticating Digital Evidence, 69 Baylor L. Rev. 1, 31–32 (2017).
- 15 - Cir. 1981)). The government offered the testimony of agent Morales
that he downloaded the photographs because he recognized Vázquez-
Soto. Morales identified Vázquez-Soto in the courtroom. He then
pointed out Vázquez-Soto in each photograph and described his
behavior (e.g., "I see [Vázquez-Soto] . . . . He's wearing the
jacket and a helmet . . . . [T]he back of the helmet is a motorcycle
logo, reddish. It's the same tag number as [that] of the motorcycle
you're going to see."). In determining whether the photographs
were authentic, the jurors could examine the photographs and rely
on their own observations of Vázquez-Soto in the courtroom. Under
these circumstances, a reasonable factfinder could conclude that
the photographs depicted Vázquez-Soto. See Holmquist, 36 F.3d at
168-69.
B. Relevance
Vázquez-Soto makes two relevance arguments. First, he
contends that the photographs are irrelevant because he was charged
with making false statements in 2013, "not . . . in either 2008 or
2010." (As noted, most of the photographs were undated, while one
had a 2008 date stamp, and all were uploaded to Facebook in 2010.)
Vázquez-Soto misses the point of this evidence. Although he was
charged only with 2013 crimes, his injury occurred well before
2008, and by then he had been claiming disability benefits for
years. Vázquez-Soto's engagement in strenuous physical activity
during a time when he claimed to be totally disabled made it more
- 16 - likely that he knew that the statements he made on his 2013
disability paperwork and in the rehab interview were false.6
Second, and more broadly, Vázquez-Soto argues that the
government failed to prove that the photographs were taken during
the period when he was accepting disability benefits, as required
to establish their relevance. When the relevancy of evidence
"depends on whether a fact exists, proof must be introduced
sufficient to support a finding that the fact does exist." Fed.
R. Evid. 104(b). The necessary "conditional fact" -- here, that
the photographs were taken during the relevant time period -- needed
to be proven only by a preponderance of the evidence. United
States v. Balthazard, 360 F.3d 309, 313 (1st Cir. 2004). To meet
that standard, the government was not required to produce
conclusive evidence that the photographs were taken after Vázquez-
Soto claimed to be disabled. Rather, the question is whether the
evidence permitted such an inference. See Domínguez-Figueroa, 866
F.3d at 485.
The government's showing met the required threshold. The
photographs were uploaded in 2010, and one bore a 2008 date stamp.
Although Vázquez-Soto questions whether those dates accurately
6 Evidence is relevant under the Federal Rules of Evidence if "(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Fed. R. Evid. 401 (emphasis added).
- 17 - depict when the photographs were taken, it was up to the jury to
evaluate the evidence of timing.7 See id. at 486 (noting that
"[t]he fact that the government could not provide an exact date for
[] photos [introduced into evidence]" did not affect admissibility
but "was for the jury to weigh"). The photographs that were not
date-stamped included similar features to the stamped photograph
(e.g., the same individuals in the same clothing). In addition,
the jury could judge for itself from the photographs and Vázquez-
Soto's appearance in the courtroom approximately how much time had
passed between when the photographs were taken and the time of the
trial. Under these circumstances, a reasonable factfinder could
conclude that it was more likely than not that the photographs were
taken during the relevant time period.
C. Prejudice
Under Rule 403 of the Federal Rules of Evidence, relevant
evidence may be excluded "if its probative value is substantially
outweighed by a danger of . . . unfair prejudice." Fed. R. Evid.
403 (emphasis added). Here, although the photographs were
prejudicial "in the sense that they were damaging [to the
defendant]," Pérez-González, 445 F.3d at 47, Rule 403 concerns only
unfair prejudice -- that is, "an undue tendency to suggest decision
7Vázquez-Soto did not object to the date stamp on hearsay grounds at trial and does not raise the issue on appeal. We therefore do not address the viability of such an argument.
- 18 - on an improper basis, commonly, though not necessarily, an
emotional one," Old Chief v. United States, 519 U.S. 172, 180 (1997)
(quoting Advisory Committee's Notes on Federal Rule of Evidence
403, 28 U.S.C. App., p. 860). The photographs are not the sort of
"shocking or heinous" evidence that was "likely to inflame the
jury" to decide the case on an improper basis, such as an emotional
ground. United States v. Moccia, 681 F.2d 61, 64 (1st Cir. 1982).
Moreover, the jury saw surveillance video evidence of Vázquez-Soto
engaged in similar conduct as that in the photographs, e.g., riding
his motorcycle with a heavy helmet. In terms of subject matter,
the photographs were just more of the same.
IV.
Vázquez-Soto argues that the district court erred when
it denied the jury's request for a transcript of the testimony of
Dr. Sein and declined to inform the jury that it could request a
readback of the testimony. Our review is for abuse of discretion.
See United States v. Rodríguez, 457 F.3d 109, 119-120 (1st Cir.
2006) (concerning request for transcript); United States v.
Boulerice, 325 F.3d 75, 85 (1st Cir. 2003) (concerning request for
readback).
A. Background
The jury requested the transcript of Dr. Sein's testimony
at the end of the first day of its deliberations in a note submitted
to the court. The court consulted with counsel (outside the jury's
- 19 - presence) and indicated its inclination to deny the request,
explaining that "there [was] no official transcript yet" and it
would take time "to formally prepare" -- possibly "a day or two or
three." It proposed telling the jurors to rely on their memory of
the testimony, which had been given just the day before. The court
noted that "[t]his is not a seven-month trial or a very lengthy
testimony," and it indicated concern about an unnecessary delay in
the proceedings. The government agreed that the jurors should be
told to rely on their notes and memory, and defense counsel urged
the court to provide a transcript because of the technical nature
of Dr. Sein's testimony.
The court and parties then discussed whether the jurors
had in fact been seeking a readback of the testimony rather than a
physical transcript, as well as whether they wanted to review all
of Dr. Sein's testimony or only a portion of it. The court observed
that providing either a transcript or readback would extend the
trial into the next week because of his schedule and because, "even
before a readback[,] the parties have to have an opportunity to
review [the] transcript," which would probably take at least
twenty-four hours.8 Ultimately, the court decided to "inform the
8 Neither party disagreed with the court's statement that even a readback would require a delay of at least a day. The court reporter described the necessary preparation as follows: What happens is that I provide, as [defense counsel] is saying, a rough draft of the transcript with the entire testimony minus the
- 20 - [jurors] that they're not entitled to see the transcript itself,
that they do have the report [of Dr. Sein], that they have their
notes . . . . And if they say [that] [i]f we cannot [have] the
transcript then we would ask for a readback or something, then I
will review that."
The court thus instructed the jurors as follows: Let me inform you that [the] transcript [of Dr. Sein's testimony] is not available at this time, and transcripts are not provided to the jury and what you want to see is the transcript. What you do have is the report of Dr. [Sein] which you can review. And you also have your jury notes of his testimony, as well as your memory of what he testified. So, there is no transcript. I cannot provide a transcript at this time, so that's what I have to say about that matter. So, continue your deliberations. What I would ask is that before you leave now, . . . if there's anything else you wish me to clarify or request, go back to the jury room and within the next five minutes send me another note. I will excuse you after that. And if you don't have anything else to add, just send me a note just telling me, Judge, we're done for the day, we'll be back tomorrow. And if you do have a note, I'll
objections and colloquy. You'd review it, and once you all approve it that is what I read to them.
Although the parties did not suggest a different process to the district court, a readback of testimony may not require preparation of a transcript in every instance. It may be possible, for example, for a court reporter to "accurately read[] back from her stenographic notes." Boulerice, 325 F.3d at 85; see also id. at 84 (describing defense counsel's account that such a procedure is used in some courts).
- 21 - respond very, very quickly so you can all leave.
The jury subsequently sent a note stating that it was ready
to recess until the following morning.
Late the next afternoon, while the jury continued to
deliberate, the court and counsel reconvened to discuss whether,
and when, the court should give "the modified Allen charge" --
i.e., an instruction addressing the possibility that the jury was
deadlocked. See Allen v. United States, 164 U.S. 492, 501 (1896);
United States v. Vanvliet, 542 F.3d 259, 263 (1st Cir. 2008). After
discussing the logistics if the deliberations continued into the
next day -- when the trial judge would be unavailable9 -- all agreed
that the Allen charge should wait until the end of the day, when
the jurors were expected to either reach a decision or report that
they had been unable to agree.
Defense counsel then returned to the issue of a readback,
noting that "[t]he only issue I think might be loose is whether
there should be a readback . . . based on their questions." A
colloquy followed in which the court stated that "[t]hey have to
request a readback because I told them jurors don't take transcripts
to the jury room." After defense counsel observed that "nobody has
9 The presiding trial judge had arranged for a colleague to take the jury's verdict and deal with routine jury issues, if necessary, but he explained that, "if it's something that is crucial that I make the determination, it will have to wait or I will have to address that with [my colleague]."
- 22 - told them that they have a right or the ability to request a
readback," the court responded: "I don't give them that
instruction, but if they want they're free to ask whatever, the
sky's the limit, and they're aware of it. They've asked -- and
this jury has been pretty active."
Defense counsel then "formally" requested that the jury
be notified of its right to request a readback. The court refused,
stating it had "already ruled on that." It continued:
If at some point they ask for anything pertaining to the transcript or any clarification or anything then I will alert them that if what they're asking is a readback they have to tell me exactly that, that they want a readback. But from my explanation I say, if you need anything else, just let me know. . . . [T]hey haven't inquired as to that. That was early on and they've continue[d] to deliberate for over a day. So, let's see what happens[.]
At 9:48 PM, the jurors alerted the court that they had
been unable to reach a verdict. The court and counsel again
conferred; they considered whether the court should give the
modified Allen charge or whether the jury should be considered
hung. Defense counsel asked that the jurors be given the Allen
charge the next morning and that the court also provide a readback
of Dr. Sein's testimony. He noted that the jurors "are looking for
something they have not found, and that request was never complied
with." Defense counsel "urg[ed] the Court to consider the readback
- 23 - because if they don't know to ask for it, how would they know to
ask for it."
The court decided to read the modified Allen charge
immediately and to let the jurors choose whether to continue
deliberating, recess for the night, or advise the court that they
cannot reach a verdict. It gave that instruction, noting "one last
thing": "When you send me a note if you need me to clarify anything
else or have any further request please do not hesitate to ask
me[.]" The jurors chose to resume deliberations the following
morning, and they reached a verdict two days later.
B. Discussion
We begin with Vázquez-Soto's contention that the district
court erred by declining to instruct the jury that it could request
a readback. We rejected a similar claim in United States v. Aubin,
961 F.2d 980 (1st Cir. 1992), where we noted that the jury "does
not have the right to a rereading," id. at 983, and that "rereading
testimony during jury deliberations rests in the presider's sound
discretion," id. (omitting alteration) (quoting United States v.
Akitoye, 923 F.2d 221, 226 (1st Cir. 1991)). Even if the jury had
"asked for a portion of the testimony to be read back," we observed,
"the judge would have been within his discretion to refuse the
request." Id. at 984. Accordingly, we held that "the judge's
- 24 - refusal to advise the jury that it could have the testimony reread
was not error." Id.
We likewise find no abuse of discretion in the district
court's decision here not to explicitly offer the jurors a readback.
The court advised the jurors that they should "not hesitate to ask"
if they needed him "to clarify anything else or have any further
request," and, in explaining to counsel why he would not make an
explicit readback offer, the court noted that the jury had been
"pretty active" and that they were aware that "they're free to ask
whatever." In other words, the court left open a door for further
requests that it evidently deemed wide enough for this jury. Cf.
Akitoye, 923 F.2d at 227 (noting as "most important" in upholding
a judge's refusal to read back testimony that the "refusal was not
unconditional, but left the door open to renewal of the request").10
Moreover, it is apparent that the court viewed a
readback, on balance, as unnecessary and impractical in the
circumstances before it. As described above, the court noted that
neither the trial nor Dr. Sein's testimony was lengthy, that the
10There is considerable logic in defense counsel's position that the jurors would be unlikely to request a readback if they were not told they could do so. Nonetheless, our caselaw leaves to the discretion of the trial judge how to handle requests for transcripts and whether to offer the alternative of a readback. However, "in some jurisdictions a readback may be required by statute or as an inherent right of the jury." Thomas Lundy, Jury Instruction Corner: Responding to the Jury's 'Inconvenient Request' to Rehear Testimony, 32-MAR Champion 58, 58 (2008) (footnote omitted) (citing cases).
- 25 - testimony was given on the day before deliberations began, and that
the jurors had available both their notes and Dr. Sein's written
report.11 Among the factors we have considered significant in
upholding a trial judge's refusal to reread testimony is the court's
ongoing consultation with counsel and "that the trial had been
brief so that the testimony [requested] was fresh in the minds of
the jurors." Aubin, 961 F.2d at 983. We also have recognized that
the time involved in reading back testimony is "highly relevant."
United States v. Argentine, 814 F.2d 783, 787 n.4 (1st Cir. 1987);
see also Akitoye, 923 F.2d at 226 (stating that "[t]he factors the
judge should consider in responding to a jury's expressed desire
to rehear testimony include whether the request is 'reasonably
well-focused,' whether there is any 'physical or logistical
impairment to reading' the testimony back, and the amount of time
the procedure would probably consume" (quoting Argentine, 814 F.2d
at 787)).
The rationales we have previously identified as
appropriate make manifest not only that the court would not have
abused its discretion if it denied a jury request for a readback,
but also that the court did not err in rejecting the requests from
11 Dr. Sein's thirteen-page report propounded the same conclusion he gave at trial: that Vázquez-Soto's neck and lower- back injuries made him unable to return to work. The report also detailed the medical history and physical exams on which Dr. Sein relied. Vázquez-Soto does not contend that Dr. Sein's testimony added any new information.
- 26 - counsel for a readback or physical transcript. The court consulted
with counsel and weighed their arguments, and it made a supportable
judgment call based on both the logistics -- i.e., the delay that
would result -- and the jury's ability to evaluate Dr. Sein's
testimony without rereading it or hearing it reread.12
Whether the court might have made a different
determination if the jury had expressly requested a readback is not
the question before us. The court properly exercised its authority
not to offer that option, and we find no abuse of discretion in its
decision to instruct the jurors to rely on their memory, notes, and
Dr. Sein's report in lieu of a transcript or readback.
Sufficient evidence supported the convictions of Vázquez-Soto
for making false statements and theft of government property. The
district court did not abuse its discretion in admitting the
Facebook photographs. Nor did the court abuse its discretion by
declining to provide a transcript or readback of Dr. Sein's
testimony or to inform the jury that it could request a readback
of the testimony. We therefore affirm.
So ordered.
12We note that different factors can come into play depending on whether the jury requests a transcript or readback; for example, a readback may be available without the delay required to prepare a transcript. See supra note 8. On appeal, Vázquez-Soto does not present separate arguments on the two options, and we likewise treat the court's articulated rationales as applicable to both.
- 27 -