FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Gustavo A. Gelpí, Chief U.S.
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
Torruella, Lipez, and Thompson, Circuit Judges.
LIPEZ, CIRCUIT JUDGE.
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.
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
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.
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. Then, in 1998, he filed a recurrence
claim, asserting that his original condition had worsened. He
was evaluated by two doctors, selected by the OWC, and each
recommended that he could continue working with a reduced
schedule and accommodations.
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.
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 disabled, he
was capable of returning to his "date-of-injury  job
but with restrictions."
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
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.
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 government, and Vázquez-Soto
proceeded to trial on Counts I, IV, and V.
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.
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-Soto and downloaded the photographs, which he
kept on his computer until the trial.
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.
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 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."
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.
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 such a readback.
Instead, the court instructed the jurors to rely on their
memory, notes, and Dr. Sein's report. 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.
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.
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
beyond a reasonable doubt." United States v.
Rodríguez-Vélez, 597 F.3d 32, 39 (1st Cir.