923 F.3d 45
1st Cir.2019Background
- Victim ("XFS"), a child, lived near Randy Charriez; Charriez befriended the family, gave gifts, and gained unsupervised access to XFS.
- From late 2013 to spring 2014, Charriez sexually assaulted XFS repeatedly in varied locations; police later arrested Charriez after XFS disclosed the abuse.
- Police seized Vaseline, a pellet gun, and seven sexually explicit images involving apparent minors from Charriez’s cellphone; Charriez admitted searching for and downloading child and adult pornography in interviews.
- A grand jury indicted Charriez for transporting a minor with intent to engage in criminal sexual activity (18 U.S.C. § 2423(a)) and possessing child pornography (18 U.S.C. § 2252A(a)(5)(B), (b)(2)); he pled not guilty and went to trial.
- At trial the government presented the victim’s testimony, forensic examiner testimony about the images, physical evidence, and Charriez’s statements; Charriez testified in his own defense and claimed, among other things, impaired vision from albinism and that others used his phone.
- The jury convicted on all counts; Charriez appealed arguing (1) insufficient evidence for the child-pornography count (age and lasciviousness) and (2) prosecutorial misconduct in rebuttal by commenting on his testimony.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Charriez) | Held |
|---|---|---|---|
| Sufficiency — whether images depicted minors | Images showed prepubescent children; forensic examiner testified and jurors viewed photos; Charriez admitted searching/downloading such images | Photos ambiguous as to age; expert testimony required to prove persons were under 18 | Affirmed: Viewing evidence in government’s favor, a rational jury could find images depicted minors; no expert required for clearly prepubescent subjects |
| Sufficiency — lasciviousness of images | Images showed fully nude young children and sexual activity; factors support lascivious finding | Forensic examiner did not testify the images focused on genitals or were intended to sexually arouse | Affirmed: Images were lascivious; defendant waived more detailed challenge and no clear-and-gross injustice shown |
| Prosecutorial comment on defendant’s testimony | Comment was a fair inference that defendant did not deny allegations when on stand; cure given by jury instruction | Comment improperly invited adverse inference from defendant’s limited testimony and violated constitutional protections | Affirmed: Defendant waived objection by agreeing to proposed curative instruction; no extraordinary reason to excuse waiver |
Key Cases Cited
- United States v. Santos-Soto, 799 F.3d 49 (1st Cir. 2015) (standard for reviewing sufficiency of the evidence; view facts in light most favorable to verdict)
- United States v. Scharon, 187 F.3d 17 (1st Cir. 1999) (articulates heavy burden on defendant to show no rational jury could convict)
- United States v. Katz, 178 F.3d 368 (5th Cir. 1999) (expert testimony may be necessary when proving a post-pubescent model is under 18, but not for obviously prepubescent subjects)
- United States v. Batchu, 724 F.3d 1 (1st Cir. 2013) (no categorical requirement of expert testimony for age or for determining if an image depicts a real child)
- United States v. Silva, 794 F.3d 173 (1st Cir. 2015) (lasciviousness is a commonsense, factbound inquiry; factors guide but are not exhaustive)
- United States v. Amirault, 173 F.3d 28 (1st Cir. 1999) (list of relevant factors for assessing lasciviousness)
- United States v. Frabizio, 459 F.3d 80 (1st Cir. 2006) (whether depiction is lascivious is a jury question; expert testimony not required)
- United States v. Corbett, 870 F.3d 21 (1st Cir. 2017) (defense counsel’s agreement to a curative jury instruction can waive appellate challenge to prosecutorial misconduct)