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United States v. Vazquez-Soto

United States Court of Appeals, First Circuit

October 1, 2019

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]

          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.

          Before Torruella, Lipez, and Thompson, Circuit Judges.

          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 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 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 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 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-Soto[2] and downloaded the photographs, which he kept on his computer until the trial.

         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 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 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 beyond a reasonable doubt." United States v. Rodríguez-Vélez, 597 F.3d 32, 39 (1st Cir. 2010).

         A. ...


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