UNITED STATES OF AMERICA, Aрpellee, v. YAIRA T. COTTO-FLORES, Defendant, Appellant.
No. 18-2013
United States Court of Appeals For the First Circuit
August 10, 2020
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Daniel R. Dominguez, U.S. District Judge]
Before Howard, Chief Judge, Torruella and Thompson, Circuit Judges.
Luis Rafael Rivera-Rodriguez, with whom
Julia M. Meconiates, Assistant United States Attorney, with whom Rosa Emilia Rodriguez-Velez, United States Attorney, and Mariana E. Bauza-Almonte, Assistant
THOMPSON, Circuit Judge. Once again, we are called upon to explain how a federal government in which Puerto Ricans have no vote may regulate them more extensively than it can most every other American citizen. Bound by our precedent, here we go.
One fateful day in March 2015, Yaira Taines Cotto-Flores, then a 26-year-old English teacher, drove a 14-year-old student to a motel in San Lorenzo, Puerto Rico and had sex with him. That was a crime. See
As the Supreme Court frequently reminds us, Puerto Rico is not a “State” but part of the “Territory or other property belonging to the United States.” Harris v. Rosario, 446 U.S. 651, 651 (1980) (quoting
After an investigation, federal prosecutors charged Cotto in the United States District Court for the District of Puerto Rico with transporting a minor “in interstate or foreign commerce, or [as relevant here] in any commonwealth, territory or possession of the United States” with the intent to engage in criminal sexual activity — a federal crime under the Mann Act of 1910 (as amended) that carries a mandatory minimum sentence of ten years in prison.
She makes four main arguments. First, she contends that
Here are the spoilers. We disagree with all but one of Cotto‘s gripes. Namely:
HOW WE GOT HERE
The Crime2
Cotto started teaching at Escuela Manuel Torres Villafane, a public school in San Lorenzo, Puerto Rico, in August 2015. Before long, other teachers started to notice that a 14-year-old ninth grader — we‘ll call him “YMP” — wasn‘t finishing his schoolwork and would often skip class to spend time alone with Cotto. One day, a teacher walked by Cotto‘s classroom and saw her alone with YMP holding hands. As it turns out, that was the tip of the iceberg. By November, Cotto and YMP were messaging each other constantly through WhatsApp (the smartphone application). Cotto told YMP that she loved him, that “if you were older, I would already be by your side,” and proposed that they have sex. In January, she planned how to do it without getting caught: “I prefer to go into that motel than out front in the car because it‘s not safe,” she wrote. She told him she‘d take steps to make sure she didn‘t get pregnant. She also bought him gifts — facial creams and an expensive watch for Valentine‘s day — and left love notes in his school bag. All the while, Cotto stressed the need to keep their relationship hidden.
A month later, on March 1, 2016, YMP told a school staff member that he needed to leave early to go to the barbershop and his grandmother‘s house. In reality, just after noon, he walked to the restaurant La Casa de Abuela (which, to be fair, translates to “Grandmother‘s House“), where he and Cotto had planned for her to pick him up. YMP testified that about five minutes after he got to the restaurant, Cotto arrived in her gray Kia Rio, YMP got into the passenger seat, and they drove to Motel Oriente. When they got there, Cotto drove into the carport and paid through a window. They went to a room on the second floor and had sex. Meanwhile, tipped off that something was up, the school social worker and a volunteer went to the barbershop and YMP‘s grandmother‘s house and learned that YMP hadn‘t been to either. Around three hours later, Cotto dropped off YMP on a road near the restaurant and he walked back to school, where the principal and YMP‘s mother were waiting for him. Initially, YMP told those adults and his friends that he hadn‘t been with Cotto that day. But later, YMP revealed that he had been.
The Trial
Cotto was charged under
any commonwealth, territory or possession of the United States with intent that [the minor] engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, shall be fined . . . and imprisoned not less than 10 years or for life.”
Several days before trial, the government filed a motion to have YMP testify by two-way closed-circuit television (“CCTV“) under
opposed the request,
So at trial, the Assistant United States Attorney (“AUSA” for short) and Cotto‘s attorney questioned YMP in a separate room, with his testimony streamed via CCTV to Cotto, the judge, and the jury in the courtroom. See
monitor/speaker in the courtroom, where the defendant, judge, jury, and the public can see and hear the minor testify.
YMP‘s mother, and several government investigators, the jury found Cotto guilty.
After the last government witness, then again after the guilty verdict, Cotto moved for a judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure. She repeated her claim that
ANALYSIS
Applying § 2423(a) within Puerto Rico
On appeal, as she did below, Cotto first argues that her case should never have gone to trial because
Despite Cotto‘s objections, we have to agree with the government. Cotto has this much right though: given its promise to grant Puerto Rico state-like status, we don‘t lightly conclude that Congress intended to exercise a police power — like the power to define, prosecute, and punish local crime — in Puerto Rico that the law elsewhere reserves for state governments. See Cordova & Simonpietri Ins. Agency Inc. v. Chase Manhattan Bank N.A., 649 F.2d 36, 42 (1st Cir. 1981); see also Morrison, 529 U.S. at 618 (“Indeed, we can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims.“). In this case, however, the plain words of the Protect Act (which amended
Like any question of statutory interpretation, whether and how a statute applies to Puerto Rico depends not only on the “words in the statute,” but also “the context, the purposes of the law, and the circumstances under which the words were employed.” Maldonado-Burgos, 844 F.3d at 347 (quoting Cordova, 649 F.2d at 38). So here, as in Maldonado-Burgos, Puerto Rico‘s transition into a “self-governing Commonwealth” sets the stage for our analysis. Id. at 340–41. To start then, we‘ll retrace that historical current and reinforce the strong tug it exerts against the government when it claims that a federal law regulates conduct in Puerto Rico that the law doesn‘t reach in the states. See id. at 342–43 (citing Cordova, 649 F.2d at 42). With that background in place, we‘ll come back to the statute‘s text.
Puerto Rico‘s Commonwealth Status under Federal Statutes
Before Puerto Rico became a “commonwealth,” that is, for its first fifty-four years as a United States territory, its internal affairs were almost entirely “subject to the command of Congress,” Cordova, 649 F.2d at 39, and a local government largely run by federal appointees, see Sanchez Valle, 136 S. Ct. at 1868. Starting in 1900 (under the Foraker Act), “[t]he U.S. President, with the advice and consent of the Senate, appointed the governor, supreme court, and upper house of the legislature,” although “the Puerto Rican people elected the lower house themselves.” Id. Over time, Congress gave the Puerto Rican people limited self-government over local affairs but kept a firm grip on levers of colonial control. See Cordova, 649 F.2d at 39. In 1917, the Jones Act granted Puerto Ricans U.S. citizenship and the right to elect both houses of the local legislature. See Sanchez Valle, 136 S. Ct. at 1868. But the U.S. President still appointed the territory‘s most powerful executive and judicial officers (including the governor, the attorney general, the commissioner of education, and the justices of the Puerto Rico Supreme Court);5 and federal law required
Rico law, would apply no matter how local the subject.” Cordova, 649 F.2d at 39 (citing the Jones Act, §§ 37, 57, 39 Stat. at 964, 968).
The tectonic plates shifted in 1950, which marked “a significant change in the relation between Puerto Rico and the United States.” Id. That year, under mounting pressure from Puerto Rico‘s leaders and the international community, Congress authorized Puerto Rico to call a convention to draft its own constitution, which would take effect when ratified by popular referendum in Puerto Rico and approved by Congress. See Act of July 3, 1950, Pub. L. 600, § 1, 64 Stat. 319 (“[F]ully recognizing the principle of government by consent, this Act is now adopted in the nature of a compact so that the people of Puerto Rico may organize a government pursuant to a constitution of their own adoption.“). Two years later, when Congress approved the new constitution, it repealed the inconsistent provisions in the Jones Act and rechristened the remainder the Puerto Rico Federal Relations Act (the “PRFRA“), which (along with the U.S. Constitution) is now the cornerstone of the island‘s legal relationship with the federal government. See id. §§ 4, 5, 64 Stat. at 320. Puerto Rico thus emerged from the process “a new kind of political entity, still closely associated with the United States but governed in accordance with, and exercising self-rule through, a popularly ratified constitution.” Sanchez Valle, 136 S. Ct. at 1874. Or as we‘ve put it, “Puerto Rico‘s status changed from that of a mere territory to the unique status of Commonwealth“: the name the new constitution and the statute approving it gave the new polity. Cordova, 649 F.2d at 41; see
The Puerto Rico constitutional convention chose that label (“commonwealth“) because in the delegates’ view, it reflected Puerto Rico‘s “legislative autonomy in local matters.” Cordova, 649 F.2d at 40. As the convention explained:
the single word ‘commonwealth‘, as currently used, clearly defines the status of the body politic created under the terms of the compact existing between the people of Puerto Rico and the United States, i.e., that of a state which is free оf superior authority in the management of its own local affairs but which is linked to the United States of America and hence is a part of its political system in a manner compatible with its federal structure.
P.R. Const. Convention Res. 22 (P.R. 1952).
Congress ratified that understanding when it approved the Puerto Rico constitution and passed the PRFRA, acts which (according to the Supreme Court) “relinquished [Congress‘s] control over [Puerto Rico‘s] local affairs” and granted the island “a measure of autonomy comparable to that possessed by the States.” Sanchez Valle, 136 S. Ct. at 1874 (quoting Examining Bd. of Eng‘rs, Architects and Surveyors v. Flores de Otero, 426 U.S. 572, 597 (1976)); see also Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 673 (1974) (holding that Puerto
In at least one way, these broad brushstrokes exaggerate the rights the 1950–52 Acts granted Puerto Rico and its people. Under the U.S. Constitution, Puerto Rico is still a “Territory,” meaning that Congress (acting under its power to “make all needful Rules and Regulations respecting the Territory . . . belonging to the United States,”
members that “[t]hose laws which directed or authorized interference with matters of local government by the Federal Government ha[d] been repealed.” Id. at 41 n.28. Presidents Truman and Kennedy made similar statements in other official memoranda. See id. at 40–41 (quoting President Truman‘s recognition, in transmitting the draft constitution to Congress, that its approval would vest “full authority and responsibility for local self-government . . . in the People of Puerto Rico“).
Crespo v. United States, 151 F.2d 44, 45 (1st Cir. 1945). We assume (because Cotto does not dispute) that even after 1952, Congress may still regulate such intra-Puerto Rico conduct, even if doing so would break the promises it made that year. See below at 68-70; United States v. Lopez Andino, 831 F.2d 1164, 1172–75 (1st Cir. 1987) (concluding that the Court in Harris “reaffirmed the existence of Congress‘s post-1952 plenary power over Puerto Rico pursuant to the Territory Clause,” and the PRFRA is not a true “compact” but “merely an Act of Congress” that “does not bind future Congresses“). But see Fin. Oversight & Mgmt. Bd. for P.R. v. Aurelius Inv., LLC, 140 S. Ct. 1649, 1677–83 (2020) (Sotomayor, J., concurring)
In other words, we need not decide whether the 1952 legislation restricts Congress‘s power to legislate in Puerto Rico. Rather, “this case requires us [only] to answer a question of congressional intent,” Maldonado-Burgos, 844 F.3d at 345: what did Congress mean to do when it amended
word “commonweаlth“? So for present purposes, what‘s important is that Congress‘s commitment in the PRFRA to give Puerto Rico state-like autonomy in its local affairs, see Sanchez Valle, 136 S. Ct. at 1874, has at least the force of federal statute, see Lopez Andino, 831 F.2d at 1174–75 (Torruella, J., concurring), subject to repeal only by an express statement or clear implication in later legislation, see Aurelius, 140 S. Ct. at 1677 (Sotomayor, J., concurring) (quoting Carcieri v. Salazar, 555 U.S. 379, 395 (2009)). That commitment (as we and the Court have construed it) forms the backdrop against which Congress now legislates when it comes to Puerto Rico and “informs Congress‘s intent” when it does so. Jusino Mercado v. Puerto Rico, 214 F.3d 34, 44 (1st Cir. 2000).
Cordova/Maldonado-Burgos
That background plays an especially critical role when, as here, we‘re asked to construe another federal statute “to intervene more extensively into the local affairs of post-Constitutional Puerto Rico than into the local affairs of a state.” Cordova, 649 F.2d at 42. In such cases, we ask whether the “Act‘s framers, if aware of Puerto Rico‘s current [post-]constitutional status, would have intended it to be treated as a ‘state’ or a ‘territory’ under the Act.” Id. at 39. That assumption comes with a corollary: that, if the enacting Congress was aware of Puerto Rico‘s “commonwealth” status and long road to attaining it, it would have acted with an intent to “fulfill [its] promise” to grant Puerto Ricans state-like self-rule free from the selective intervention of a federal government they do not elect.8 Jusino Mercado, 214 F.3d at 44. With that pledge in mind, we do not read statutes “to treat Puerto Rico in one way and the states in another unless the language of [the] particular statute” or “some other compelling reason” in its structure, context, or legislative history demands that result. Id. at 42 (anchoring that rule in § 9 of the PRFRA,
In Maldonado-Burgos, we applied that test to
Section 2423(a)
In this case, Cotto urges us to extend Maldonado-Burgos and hold that
In her effort to resist that conclusion, Cotto makes two main arguments. First, she suggests that Congress must expressly call out “Puerto Rico” in the statute before we can read it to treat the island differently from the states. But nothing in the PRFRA, Cordova, or Maldonado-Burgos lets us disregard Congress‘s clearly-expressed intent because it failed to use those two magic words.13 To
But, when “Congress has made its [contrary] intent clear,” courts “must give effect to that intent,” even if it defies our settled expectations. Miller v. French, 530 U.S. 327, 328 (2000) (internal quotation marks omitted); In re Palladino, 942 F.3d 55, 59 (1st Cir. 2019) (“Absent [a] constitutional challenge, when [we‘re] confronted with a clear statutory command . . . that is the end of the matter.” (citing TVA v. Hill, 437 U.S. 153, 194 (1978))). So when a statute like
As her fallback, Cotto points to another clause in the Protect Act, Pub. L. No. 105-314, § 104(a), 112 Stat. at 2976, codified at
So, like every federal judge in District of Puerto Rico to have addressed the question, we hold that
Sufficiency of the Evidence
Cotto next argues that the government failed to prove that Cotto “transported” YMP anywhere (nevermind outside Puerto Rico). And even on our reading, the government had to prove that Cotto “transport[ed]” YMP “in [the] commonwealth” as an element of the offense.
Her problem is that YMP testified in clear terms that Cotto picked him up at La Casa de Abuela and drove him to the Motel Oriente to have sex. Cotto urges that YMP‘s testimony can‘t sustain her conviction because she “impeached” him “extensively“; another student (called by the defense) testified that he saw YMP get into a white car (Cotto‘s car was gray) that day, and on cross, YMP admitted he lied to his mom and school staff about where he‘d disappeared to. But Cotto skates over the evidence that she herself urged YMP to lie in order to hide their relationship from his mother and school officials (and for obvious reasons). See above at 6. Of course, the jury didn‘t have to find YMP lied at trial simply because he‘d fibbed to protect her two years earlier. Anyway, when testing the sufficiency of the evidence, we do not “assess the credibility of trial witnesses” or “resolve conflicts in the evidence,” United States v. Gaudet, 933 F.3d 11, 15 (1st Cir. 2019) (quoting United States v. Hernandez, 218 F.3d 58, 66 n.5 (1st Cir. 2000)); “that is a role reserved for the jury.” United States v. Kanodia, 943 F.3d 499, 505 (1st Cir. 2019) (quoting United States v. Robles-Alvarez, 874 F.3d 46, 50 (1st Cir. 2017)). And based on the evidence the government presented, the jury was well within its rights to credit YMP‘s story of being carted off by Cotto, which school staff (testifying that Cotto left school early that day too), the WhatsApp messages, and the motel records corroborated.
Jury Instructions
Third, Cotto faults the judge for instructing the jury about the crime of sexual assault under Puerto Rico law. Although we need not reach this issue, since we ultimately remand for a new trial, we address it to provide guidance on remand. See Swajian v. Gen. Motors Corp., 916 F.2d 31, 35 (1st Cir. 1990).
To recap, to show Cotto violated
Under the laws of Puerto Rico, criminal sexual activity includes the following conduct: One, when a person performs or provokes another person to perform an oral-genital act or vaginal or anal sexual penetration, whether genital, digital, or instrumental, if the minor has not yet reached the age of 16 at the time of the event; or, number two, when a person purposefully, knowingly or recklessly, without consummating the conduct defined in the point above, submits another person to an act that tends to awake, excite, or satisfy the passion or sexual desires of the suspect, if the minor has not yet reached the age of 16 at the time of the event.
Though the judge didn‘t name them, he was describing the offenses of “sexual assault” and “lewd acts” under Puerto Rico law,
Cotto argues that these instructions about Puerto Rico crimes “unnecessarily
We test such “preserved claims of instructional error under a two-tiered standard: we consider de novo whether an instruction embodied an error of law, but we review for abuse of discretion whether the instructions adequately explained the law or whether they tended to confuse or mislead the jury on the controlling issues.” United States v. Symonevich, 688 F.3d 12, 24 (1st Cir. 2012) (internal quotation marks omitted). The instructions here correctly stated the law, and Cotto gives us no reason to think they may have thrown off the jury. To know if Cotto intended to commit “sexual activity for which any person can be charged with a criminal offense,”
Testimony by Two-Way Television
However, Cotto‘s last challenge spells the end of the government‘s winning streak. Specifically, she argues that the judge violated her Sixth Amendment right to confront YMP in person when he permitted YMP to testify remotely through two-way CCTV. See above n.4 (describing the procedure). We‘ll start with the legal framework governing this claim before we explain how the judge misapplied it here and why the slip warrants a new trial.
Law on Tele-Testimony
In the ordinary case, the
But, like the presumptions that underpin it, the constitutional right to unscreened in-person confrontation has its limits. See Craig, 497 U.S. at 844, 849 (holding that defendants do not have an “absolute right to a face-to-face meeting with witnesses against them at trial“). The state also has a “compelling” interest in protecting “minor victims of sex crimes from further trauma and embarrassment.” Id. at 852 (quoting Globe Newspaper Co. v. Superior Court of Norfolk Cty., 457 U.S. 596, 607 (1982)). So, in sexual abuse cases, when “necessary” to elicit a minor victim‘s testimony without subjecting him or her to further trauma, “at least where such trauma would impair the child‘s ability to communicate,” the court may allow the minor to testify from another room through CCTV — that is, as long as the minor still testifies under oath, subject to live cross-examination, “and the judge, jury, and defendant are able to view (albeit by video monitor) the demeanor (and body) of the witness as he or she testifies.” Id. at 851, 857.
“The requisite finding of necessity,” however, “must . . . be a case-specific one: The trial court must hear evidence and determine whether use of the [CCTV] procedure is necessary to protect the welfare of the particular child witness who seeks to testify.” Id. at 855. That entails two key findings: first, that the minor would be “traumatized, not by the courtroom generally, but by the presence of the defendant” (since otherwise, (s)he could testify “in less intimidating surroundings” with the defendant present); and second, “that the emotional distress suffered by the child witness in the presence of the defendant is more than . . . mere nervousness or excitement or some reluctance to testify.” Id. at 856 (internal quotation marks omitted). The Maryland statutory procedure challenged in Craig (as the state court applied it) allowed testimony by CCTV if testimony “in the presence of the defendant” would cause the child to “suffer[ ] serious emotional distress such that the child could not reasonably communicate.” Id. at 858. The Supreme Court held that standard passed constitutional muster. Id. After all, “where face-to-face confrontation causes significant emotional distress in a child witness, there is evidence that [it] would in fact disserve the Confrontation Clause‘s truth-seeking goal.” Id. at 857 (citing, among other things, the Brief for American Psychological Ass‘n as Amicus Curiae, Maryland v. Craig, 1990 WL 10013093, at 18-24 (1990) (“APA Brief“) (discussing empirical evidence that a defendant‘s physical presence can influence child sex abuse victims to give less accurate, detailed, and complete testimony)).
Whether the trial judge made specific findings “sufficient to permit the use of closed-circuit television testimony . . . is a legal issue that we review de novo“: that is, without deference. United States v. Turning Bear, 357 F.3d 730, 735-36 (8th Cir. 2004). When the judge makes the required findings, however, we review them for “clear error,” United States v. Cox, 871 F.3d 479, 484 (6th Cir. 2017) (citing Hernandez v. New York, 500 U.S. 352, 364 (1991)), meaning we must defer to the judge‘s findings unless “after whole-record review — we have ‘a strong, unyielding belief‘” that the judge got the facts wrong. United States v. Rivera-Carrasquillo, 933 F.3d 33, 42 (1st Cir. 2019) (quoting Toye v. O‘Donnell (In re O‘Donnell), 728 F.3d 41, 45 (1st Cir. 2013)). That doesn‘t mean we let the findings stand whenever there‘s some evidence to support them. As the Court has put it, “[a] finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction” the judge made a mistake. Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573 (1985) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)) (emphases ours). But as long as the judge‘s finding is “plausible,” we may not reverse it even if we‘re sure that “had [we]
So meeting the “clear error” standard is “no easy task“; it‘s “not enough that a finding strikes us as possibly or even probably wrong.” Diaz-Alarcon v. Flandez-Marcel, 944 F.3d 303, 312 (1st Cir. 2019). It has to be “wrong with the force of a [five] week old, unrefrigerated, dead fish.” Id. (quoting O‘Donnell, 728 F.3d at 46). The bar is high for a reason. When we review a transcript on appeal, we weren‘t there to see the testimony unfold live; unlike the trial judge, we didn‘t “see [the] witnesses face-to-face” or “appraise in person their demeanor and inflection.” United States v. Perez-Diaz, 848 F.3d 33, 38 (1st Cir. 2017) (quoting United States v. Guzman-Batista, 783 F.3d 930, 937 (1st Cir. 2015)). We can‘t see the distress on someone‘s face, or hear the stress in their voice, by reading their words in 12-point Courier New. And unlike us, trial judges “listen to witnesses” and gauge their credibility “for a living.” Diaz-Alarcon, 944 F.3d at 311 (quoting Taglieri v. Monasky, 907 F.3d 404, 408 (6th Cir. 2018)). So unless “objective evidence . . . contradicts a witness‘s story,” or it‘s “so internally inconsistent or implausible that no reasonable factfinder would credit it,” Perez-Diaz, 848 F.3d at 38 (quoting Guzman-Batista, 783 F.3d at 937), a judge‘s choice to believe a witness “can ‘virtually never be clear error.‘” Cooper v. Harris, 137 S. Ct. 1455, 1478 (2017) (quoting Anderson, 470 U.S. at 575).
With that high standard in mind, we turn to YMP‘s in-chambers testimony and the judge‘s findings based on it.
YMP‘s Testimony
About a week before trial, the government filed a motion to have YMP testify by two-way CCTV under
To begin, there were several rounds of questions: first from the government (e.g., “Q: [H]ow do you feel [about] testify[ing] in open court? A: Very bad.“), then the defense,
which sought to paint YMP as a high-functioning scholar-athlete unaffected by Cotto‘s alleged crime: he had decent grades in school (YMP agreed) and played on a traveling baseball team. But on redirect, the government got back to the issue at hand. The AUSA (that is, the attorney for the government) asked:
[AUSA]: How would you feel about seeing [Cotto] in court today?
A: Bad, uncomfortable.
[AUSA:] How bad and how uncomfortable?
A: Too much.
The Court: Would you be able to testify?
YMP: No.
At that point, Cotto‘s lawyer jumped back in; he pointed out that “everybody is uncomfortable as a witness,” and YMP had spoken in public before — he‘d given interviews on sports radio. YMP admitted he had. But on the radio (YMP added), he‘d been talking about baseball; he hadn‘t had to discuss this case. So the government followed up: “How would you feel if you were in that same radio station speaking about what is happening today in court?” “Very, very, very bad,” said YMP. Then, the defense attorney stepped in once more:
[Defense Counsel]: And you feel bad because you don‘t want to talk about personal things; is that correct? A: Yes.
[Defense Counsel]: But if you are compelled to do it and you have to testify, you will do it?
A: If I am compelled I wouldn‘t do it either.
[Defense Counsel]: If you are called as a witness for the prosecution, would you be conversant in answering her questions truthfully in open court?
A: No.
The Court: Why?
YMP: Because it‘s uncomfortable.
The Court: Well —
Cotto‘s lawyer cut in again: had the prosecution ever explained “[t]hat it is a normal process for you to testify as a witness at trial?” YMP was confused. “What do you mean, ‘at trial‘?” he asked. That‘s when the judge painted the picture. At “a trial,” he explained:
The Court: . . . there is a jury, and your mother and your father will be present, your lawyer will be present, the judge will be present, and the defendant . . . Yaira Cotto, she is entitled to be there. She is not going to be asking questions, but she is entitled to be there.
YMP: That wouldn‘t be the best.
The Court: Well, would you be able to testify? That‘s the issue.
YMP: No.
The Court: So you would not testify?
YMP: No.
[Defense Counsel]: May I ask something? Why? Why can‘t you do that?
A: Because, no, I don‘t feel comfortable.
The Court: And why would you feel not comfortable?
YMP: Because I don‘t want to see her. I don‘t want to be there.
The Court: Would that cause you to lose your tongue? Is that what you‘re telling me?
YMP: Yes.
The Court: Why?
YMP: Because I don‘t want to testify with her there. I don‘t want to be uncomfortable.
At that point, the judge dismissed YMP and his mother to confer with the lawyers.
“So counsel,” the judge leveled (quoting from Craig), “mere nervousness or excitement or some reluctance to testify is not enough, but it has to be serious emotional distress such that the child cannot reasonably communicate.” On that score, the judge was skeptical: YMP “seem[ed] to be in the middle[.]” So the lawyers skirmished over whether YMP expressed “fear” of testifying or just discomfort or “some reluctance” to do so. The judge noted that YMP had “a change of face when he stated, kind of annoyed, that he did not want to testify against her.” The defense clapped back that “that per se doesn‘t mean fear” — and even if YMP felt fear, it would have to come from Cotto, and he hadn‘t said that he feared her. The judge responded that “[t]he fear can be fear to testify before a jury, fear to testify before other people, and fear to testify before the judge. There‘s many fears involved. It‘s fear.” Moving on, the judge had his clerk pull out a dictionary to find synonyms for “fear” and asked the interрreter how he‘d translate them. Then, he called YMP back in to get more specifics.
Using those synonyms for “fear,” the judge asked YMP if “testifying in this case [would] subject you to distress?” (YMP said “yes“), “cause you to become agitated?” (“yes“), “cause you . . . great distress?” (“yes“), and “cause you some sort of apprehension or alarm?” (“yes“).
The Court: And do you think — above all, do you think that this is fear that you would be — be causing yourself?” YMP: Yes.
The Court: So all of those that I just stated, which is the one that really causes you to not be able to testify?
YMP: Seeing her, standing there; that I have never been there.
The Court: Have been where?
YMP: In the court.
On re-cross, Cotto‘s lawyer took aim at YMP‘s testimony that “seeing [Cotto] standing there” caused him fear. He pointed out that in a statement YMP wrote for investigators two years earlier, YMP “didn‘t write that he was afraid of Mrs. Cotto.” “No,” YMP admitted.
[Defense Counsel]: Because you didn‘t feel afraid of her; is that correct?
A: No.
[Defense Counsel]: And today you don‘t feel any fear for her either?
A: I am not afraid, but I do feel uncomfortable when I see her.
. . .
[AUSA]: How would you feel if you have to testify in front of Mrs. Cotto today in court?
A: Super bad, as I said before.
[AUSA]: And when you say “super bad,” could you describe to the judge, what does that mean?
A: That I am going to feel nervous, anxious.
[AUSA]: Do you want to see Ms. Cotto?
A: No.
. . .
The Court: Does that bring fear to you by the fact that she is there?
[YMP]: Yes.
Unsatisfied, Cotto‘s lawyer followed up a final time:
[Defense Counsel]: What type of fear? Explain to us what type of fear can come to you.
A: I don‘t want to see her because I don‘t feel good when I see her. I don‘t want to see her and — I don‘t want to see her.
[Defense Counsel]: Is that it? That‘s all the —
[AUSA]: Do you fear her looking at you?
A: Not necessarily.
[AUSA]: What exactly do you fear?
[Defense Counsel]: Let the record reflect that he has remained silent.
The Court: No, let the record also reflect that he‘s become red in the face.
[Defense Counsel]: He is blushing.
The Court: Of course, he is blushing. Fine.
[Defense Counsel]: Okay. But does that mean fear?
[AUSA]: Yes. Yes.
[Defense Counsel]: He hasn‘t answered, Your Honor. The record should reflect that it‘s been almost 20 seconds and he hasn‘t answered.
The Court: He‘s been getting red.
[AUSA]: Let the record reflect, Your Honor, that we are talking with a 16-year-old minor.
The Court: He is still a minor. All right. Do we have any further questions?
They didn‘t.
Back in court, the judge granted the government‘s motion. To start off, the judge “f[ound] that [YMP] demonstrated reluctance to testify and [had a] frightened demeanor, as he physically flushed (his face became red), his body choked, he started moving his legs, and expressed that his chest was tight on his left side by moving his right hand to his chest.” After describing YMP‘s testimony and noting
As such, the Court determines that there is a necessity to protect the welfare of this particular child witness who has demonstrated physical effects of fear as the Court asked specific questions using different synonyms of the word “fear,” as the victim stated to the Court on every synonym used that he would either not testify or was reluctant to testify in the presence of the defendant in accordance with the requirements of [§] 3509.
(emphasis ours). When the trial resumed, YMP testified by two-way CCTV.
Our Take
Cotto argues that the judge failed to make the specific findings
As we said up front,
The judge‘s remarks earlier in the hearing clue us in to why he failed to make the needed findings. During the brief intermission in questioning, the defense pointed out that the government had to show “where [YMP‘s] fear comes from” (i.e.,
make the needed findings, undermines his conclusion that CCTV was necessary. See Pullman-Standard v. Swint, 456 U.S. 273, 287 (1982) (“[I]f a district court‘s findings rest on an erroneous view of the law, they may be set aside on that basis.“).
Wait a second, says the government. In his oral decision, the judge “noted YMP testified that he felt ‘greatly distressed and uncomfortable about testifying in court before the Defendant.‘” Appellee‘s Br. at 38. And he also said that YMP “stated that he would be unable to testify if he were in front of the defendant,” not just in the courtroom generally. But as the government implicitly concedes, while the judge may have “noted” that YMP made those statements, he didn‘t find that either of them were true. So, given the judge‘s earlier misstatement of the legal standard, we can‘t conclude he was adopting YMP‘s statements wholesale as his own findings of fact — at least not in this case, where YMP‘s testimony about his feelings toward Cotto, specifically, was equivocal at best.
Indeed, a firm finding on the key issue — whether YMP felt frightened and unable to testify because of Cotto, and not just the crowded courtroom — was especially needed on this shaky record. On that critical point, YMP never gave a clear answer. Twice, it‘s true, the judge asked YMP if he “[w]ould . . . be able to testify,” and YMP said no. But both times, the judge was following up on questions about how YMP would feel about testifying in court, where (the judge made clear) “there is a jury, and [YMP‘s] mother and [his] father would bе present” as well as Cotto. And when asked why he believed he wouldn‘t be able to testify, YMP gave two reasons: that he didn‘t “want to see Cotto” and that he didn‘t “want to be there” in court. A similar thing happened later — after YMP agreed that “testifying in this case” would cause him “fear” (and its synonyms). When the judge asked what “cause[d] YMP” to be afraid and not “able to testify,” YMP gave the same two answers: one, “seeing [Cotto] standing there” and two, “that I have never been there . . . in court.” In other words, YMP never singled
Fighting on, the government points out that when the judge asked YMP (albeit awkwardly) if “that brings fear to you by the fact that [Cotto] is there?” YMP said yes. But it reads that statement in isolation — a luxury we don‘t have, see Anderson, 470 U.S. at 573 (tasking us to review “the entire evidence“). When pressed to explain, YMP clarified (as he had before) that he just didn‘t “want” to see Cotto because she made him “uncomfortable.” Of course, not wanting to see Cotto — or feeling “nervous,” “anxious,” and “uncomfortable” around her (like virtually all witnesses do) — didn‘t mean she‘d make him unable to “reasonably communicate” his story to the jury. See Craig, 497 U.S. at 856. And here‘s the real killer: when the defense asked him point-blank, YMP testified that he was “not afraid” of Cotto. With that plain statement etched in the record, we doubt it could have borne a finding that Cotto frightened YMP so much that she‘d chill his testimony. See United States v. Moses, 137 F.3d 894, 898–99 (6th Cir. 1998) (reversing the judge‘s because-of-fear finding where the child testified she was “not afraid of” the defendant but didn‘t “want” to see him).
Let‘s be clear: we do not expect that child victims will always (or even usually) be able to explain “what exactly” they fear about testifying in the courtroom or give the clarity Craig requires; and nor could we, when the wholе point is to figure out whether the witness can “reasonably communicate” in the defendant‘s presence. Craig, 497 U.S. at 856. But that‘s where expert testimony (while not required, United States v. Rouse, 111 F.3d 561, 569 (8th Cir. 1997)) can help fill in the gaps. See Craig, 497 U.S. at 842 (noting that “expert testimony” had “suggested that each child [victim] would have some or considerable difficulty in testifying in Craig‘s presence“); Cox, 871 F.3d at 485 (affirming the use of CCTV where an expert witness examined the child and gave “particularized” and specific testimony that the defendant‘s presence would cause the child trauma and interfere with their testimony); APA Br. at 24 (recommending that “multiple sources of information, including expert testimony, should be sought in making an individualized determination whether there is a need to limit the defendant‘s right to face-to-face confrontation when a particular child witness testifies“). In United States v. Graham, for example, “the district court, on voir dire, found that” the 17-year-old victim was “extremely nervous and uncomfortable and fearful . . . and credited her statement that she was ‘afraid’ of facing [her trafficker] in court.” Graham, 707 F. App‘x at 28. Still, the Second Circuit wrote that “[t]hese apprehensions of appearing for live testimony may fail to meet our demanding constitutional standard absent specific indicia of the emotional trauma the child witness would experience ‘not by [testimony in] the courtroom generally, but by the presence of the defendant.‘” Id. (quoting Craig, 497 U.S. at 856). What tipped the scales was a psychiatrist‘s finding (which the district court credited) that the witness would “be unable to reasonably communicate if forced to testify in the live presence of the defendant.” Id. Here in contrast, the government did not enlist an expert to examine YMP and help fill the holes or reconcile the contradictions in his in-chambers testimony.19
As a result, even if the district judge intended to find that YMP was “unable to testify in front of [Cotto],” we could “[ ]not on this record . . . sustain [that] finding” without more explanation for hоw the judge arrived at it. United States v. Oquendo-Rivera, 586 F.3d 63, 68 (1st Cir. 2009). Ordinarily, we might not require a trial judge to explain why he found certain facts, at least when “the basis is plain from the record.” Id. That‘s especially true when it comes to “credibility,” which (as we‘ve said) “is largely a matter for the fact-finder.” Id. at 67. But that doesn‘t mean we can “insulate . . . findings from review by denominating them credibility determinations[.]” Anderson, 470 U.S. at 575. As the Supreme Court has explained, that‘s because
factors other than demeanor and inflection go into the decision whether or not to believe a witness. Documents or objective evidence may contradict the witness’ story; or the story itself may be so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it. Where such factors are present, the court of appeals may well find clear error even in a finding purportedly based on a credibility determination.
Id. Thus, when it appears (but is not certain) that “[d]ocuments or objective evidence . . . contradict[ed] the witness’ story,” or when the relied-on testimony seems “implausible” or “internally inconsistent” on a critical issue, we have required judges to give more explanation for their conclusions. See, e.g., Oquendo-Rivera, 586 F.3d at 67–68 (vacating revocation judgment based on the judge‘s failure to explain why he credited a key witness‘s story despite apparent contradictions in the evidence); United States v. Forbes, 181 F.3d 1, 7–8 (1st Cir. 1999) (vacating order denying a motion to suppress for the same reason); see also United States v. Lacouture, 835 F.3d 187, 191–92 (1st Cir. 2016) (vacating sentence because judge failed to explain why he credited child victim‘s statements in transcript of a forensic interview despite “apparent inconsistencies” in the child‘s story). “How much explanation” is needed “depends on the circumstances — for example, on the closeness of the case, the nature and extent of gaps or doubts” that plague the record, and the “suppоsitions” needed “to fill the gaps or answer the doubts.” Oquendo-Rivera, 586 F.3d at 68. But the upshot is that “[i]n some cases, a result, possibly defensible, may not have been adequately explained or supported.” Id.
That‘s our conclusion in this case. Given the key gap in YMP‘s testimony — that he never testified he‘d be unable to testify in front of Cotto even in less daunting surroundings — his equivocation on the other critical point (whether Cotto frightened him at all), and the lack of any other evidence such as expert testimony to clear up the muddle, we could not sustain the
“Without [that] further explanation,” “we would have a definite and firm conviction” that the evidence was insufficient to show that CCTV was needed. Forbes, 181 F.3d at 8.
In sum, then, the trial judge applied an overbroad legal standard, failed to make the required “because-of-Cotto” finding, and didn‘t articulate the explanation necessary to support one (if the record permitted such a finding at all, which we don‘t decide). As a result, when the judge allowed YMP to testify by CCTV, he violated Cotto‘s right to confront YMP in person absent a compelling need for remote testimony. See Craig, 497 U.S. at 855–56.
Nonetheless, the government tells us, Cotto‘s conviction can stand because she hasn‘t argued the error impacted the verdict (so she‘s “waived” any argument it did). Appellee‘s Br. at 40. But it‘s the government, not Cotto, that must shoulder the burden to show that a constitutional violation was “harmless beyond a reasonable doubt.” Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986) (citing Chapman v. California, 386 U.S. 18, 24 (1967)). In answering that question, we have to assume that if Cotto had been allowed to confront YMP in person, “the damaging potential of [her] cross-examination” would have been “fully reаlized.” Id. As the Supreme Court explained in Coy, when the trial court violates the defendant‘s right to face-to-face confrontation, our assessment of harmlessness cannot include consideration of whether the witness testimony would have been unchanged, or the jury‘s assessment unaltered, had there been confrontation; such an inquiry would obviously involve pure speculation, and harmlessness must therefore be determined on the basis of the remaining evidence. 487 U.S. at 1021–22. Rather, we focus on “the importance of the witness’ testimony in the prosecution‘s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points,” and “the overall strength of the prosecution‘s case.” Van Arsdall, 475 U.S. at 684; see also Carter, 907 F.3d at 1210 (holding that the victim was wrongly permitted to testify by two-way CCTV and considering only the “remaining evidence” besides her testimony to hold that the error wasn‘t harmless).
Having scoured “the whole record” through that lens, we can‘t “confidently say” that “the constitutional error” here (letting YMP testify remotely without the required findings) was “harmless beyond a reasonable doubt.” Van Arsdall, 475 U.S. at 681. First off, as we‘ve explained in detail, it‘s not at all clear the judge would have permitted YMP to testify remotely if he‘d applied the right legal standard, grappled with Cotto‘s independent impact on YMP‘s testimony, and made the more precise findings Craig requires. And if YMP had testified under the “truth-inducing effect” of Cotto‘s “unmediated gaze,” Bordeaux, 400 F.3d at 554; Carter, 907 F.3d at 1207, he may well have changed his story or told the same tale less convincingly. See Coy, 487 U.S. at 1020–22. The government points out that Cotto and YMP‘s text messages detailed their sexual relationship, and that school staff and records corroborated that both of them left school early on the day in question. Moreover, records from the motel placed Cotto‘s car in the motel‘s garage that afternoon. But without YMP‘s testimony, none of that evidence establishes that Cotto took him to the motel, or that she did so to have sex with him. So in the end, the government admits that “YMP‘s testimony” was “undoubtedly . . . important” because he “was the only witness to establish Cotto transported him to the Motel Oriente on March 1, 2016 with the intent they have sex,” as charged in the indictment. Appellee‘s Br. at 41. Thus, if “the damaging potential of [YMP‘s] cross-examination were fully realized,” Van Arsdall, 475 U.S. at 684, the jury could have reasonably doubted Cotto‘s guilt. Instead, it may well have believed the other student‘s testimony that YMP left school in a white car (not Cotto‘s gray Kia) and YMP‘s initial statements to school staff and his friends that he hadn‘t seen Cotto that day. See Moses, 137 F.3d at 902 (holding the error wasn‘t harmless when the child “provided the only eye-witness testimony” to the crime).
Which brings us to the remedy. When a trial judge fails to make required factual findings or provide an adequate explanation for his decision, we “normally” remand for him to reconsider the evidence and make the appropriate findings, if warranted, or to reverse himself if not. See Pullman-Standard, 456 U.S. at 292; Forbes, 181 F.3d at 8 (remanding for the district court to “clarify and amplify the reasons for its factual findings or, perhaps, reconsider its conclusion“). However, we have broad discretion to craft the scope of our “remand in the interests of justice,” United States v. Merric, 166 F.3d 406, 412 (1st Cir. 1999), and may also order a new hearing or trial when it would serve those interests, Ruiz-Troche v. Pepsi Cola of P.R. Bottling Co., 161 F.3d 77, 88 (1st Cir. 1998) (holding that when a trial court excluded evidence on a mistaken basis, “[t]he choice of remedies (including whether to require a new trial or merely remand for further findings) [was] ours,” and remanding for a new trial even though further findings might have justified excluding the proffered evidence on other grounds) (citing
We think that‘s the appropriate course here. To begin with, when a trial judge has decided the facts — even under an incorrect legal standard — it can be hard “to put aside a belief sincerely arrived at and look at the evidence through fresh eyes.” Oquendo-Rivera, 586 F.3d at 69 (reassigning the case on remand for that very reason); see also United States v. Hernández-Rodríguez, 443 F.3d 138, 148 (1st Cir. 2006) (explaining that we may remand “to a different district judge not only in recognition of the difficulty that a judge might have putting aside his previously expressed views, but also to preserve the appearance of justice“). For similar reasons, the interests of justice counsel against asking the judge to revisit his previous ruling that CCTV was necessary and find the missing facts.21 In this case, the key finding needed to sustain Cotto‘s conviction by tele-testimony (i.e., that YMP could not have testified in Cotto‘s presence) has faint (at best) support in the evidence. To make it, the judge would have to rely on subtle variations in YMP‘s tone, pace, and demeanor when he gave certain answers. And he‘d need to do so based on two-year-old testimony. See Rucker v. Higher Educ. Aids Bd., 669 F.2d 1179, 1184 (7th Cir. 1982) (remanding for a new trial, instead of for further findings, when the judge applied an incorrect legal standard because, among other things, “the trial ended a year [before] and the record” would be too “stale in the judge‘s mind“). We trust that if asked to do so, the judge would rise to the challenge and reconsider his previous ruling with an open mind. But if in doing so he sustains his previous finding, “it might appear that his determination was improрerly influenced by his initial decision” instead of YMP‘s now-stale and barely sufficient testimony. Hernández-Rodríguez, 443 F.3d at 148.
Without a doubt, testifying in front of an abuser in court can “be more emotionally traumatic to [a] child than the initial abuse itself,” no matter what his age or gender. H.R. Rep. No. 101-681(I) (Sept. 5, 1990), reprinted in 1990 U.S.C.C.A.N. 6472, 6572; see Craig, 497 U.S. at 855 (citing the already-“growing body of academic literature documenting the psychological trauma suffered by child abuse victims who must testify in court“). That‘s true for adults as well as children, though Craig and its offspring don‘t protect them. See
END
For those reasons, we are bound to hold that despite Congress‘s promise to grant Puerto Ricans state-like “autonomy” over their local affairs, see Sánchez Valle, 136 S. Ct. at 1874, and an “end” to their island‘s “subordinate status” under federal law, Cordova, 649 F.2d at 42, the Protect Act — though it refers to Puerto Rico as a “commonwealth” — treats the island as a “territory . . . belonging to the United States” and not as a member of the Union. Shell Co., 302 U.S. at 257. As a result, we affirm the judge‘s decision to sustain the indictment and hold there was sufficient evidence to sustain Cotto‘s conviction.
But because Cotto‘s trial violated her Sixth Amendment rights, we vacate her conviction and remand for a new trial.
-Concurring Opinion Follows-
TORRUELLA, Circuit Judge, Concurring.
TORRUELLA, Circuit Judge, Concurring. Although I fully agree with the decision reached by the majority (as well as its reasoning) to reverse the conviction by reason of the violation of appellant‘s Sixth Amendment rights, I wish to express my disagreement with the manifestations made regarding Puerto Rico‘s constitutional status and related subjects.
The constitutional status of Puerto Rico was established by the infamous Insular Cases:22 it is that of an unincorporated territory, whatever that means. This is not a term you will find anywhere in the Constitution, but one by which the Supreme Court of the time23 used to validate Puerto Rico‘s colonial status of inequality,24 and by which the Court supported the Manifest Destiny and American exceptionalism theories that were prevalent during the imperial period of the United States. This ruling and the biased treatment of the residents of Puerto Rico that it promoted prevailed even after they were granted U.S. citizenship25 and continues to the present day. Although it is a status that is based on a rationale of racial inequality,26
A brief sample of the confusing and contradictory language that has issued over the last century will suffice to illustrate this point. The Court has ruled that under Puerto Rico‘s constitutional status as an unincorporated territory, Puerto Rico belongs to but is not a part of the United States;27 that it is “foreign to the United States in a domestic sense“;28 that it is a jurisdiction over which Congress has plenary powers29 pursuant to the Territorial Clause;30 that its residents are only entitled to the constitutional protection of fundamental rights,31 which does not include the right to trial by jury;32 that all the granting of U.S. citizenship did for the residents of Puerto Rico was to allow them the right to enter the United States freely, and there exercise full citizenship rights if they became residents;33 that state juries must reach unanimous verdicts;34 and that Puerto Rico is like a state for purposes of the Three-Judge Court Act,
It seems to me that much confusion and disenchantment would have been avoided had someone bothered to read the extensive evidence that is available as to what Congress intended and actually did in enacting the bill that authorized the “creation” of the “Commonwealth of Puerto Rico.”39
Starting with the statute in question, as we must, one cannot find an iota of language in that legislation, which simply authorized a modicum of autonomy and self-government to the people of Puerto Rico, that supports the contention that a new constitutional status was being created, much less that one was being established which superseded the existing unincorporated territorial one. If that statement is not convincing enough, even though the language of Public Law 600 self-evidently supports it, looking at the legislative history in the Congressional Record is helpful.
On May 17, 1950, the Senate subcommittee considering S. 3336, the precursor of Public Law 600, heard the testimony of Puerto Rico‘s Resident Commissioner in Congress,40 Dr. Antonio Fernós-Isern, regarding the bill, and specifically regarding the “in the nature of a compact” phrase, which was causing uneasiness because of its Sphinx-like inscrutability. In that respect Fernós-Isern testified: “S. 3336 would not change the status of the island of Puerto Rico relative to the United States. . . . It would not alter the powers of sovereignty acquired by the United States over Puerto Rico under the terms of the Treaty of Paris.”41
He had already testified in a similar manner the previous day before the House‘s committee dealing with H.R. 7674,42 the counterpart to S. 3336, at which hearing the Secretary of the Interior testified that there would be no change in “Puerto Rico‘s political, social and economic relationship to the United States,”43 a position also endorsed by Cecil Snyder, an Associate Justice of the Supreme Court of Puerto Rico, in his own testimony.44 The Senate‘s report on S. 3336 succinctly stated on this point: “The measure would not change Puerto Rico‘s fundamental political, social, and economic relationship to the United States.”45
I further disagree with the majority‘s views, to the extent it relies on the existence of a “compact” between the United States and Puerto Rico. At most, the language used in Public Law 600 is “in the nature of a compact,” which is a far cry from saying there is a “compact,” which implies mutually binding promises, a situation which does not and cannot exist between Puerto Rico and the United States,46 given Puerto Rico‘s unincorporated territorial status, which as previously demonstrated, is still validated by the Supreme Court.
I join the merits of this case notwithstanding its reliance on a “commonwealth” jurisdictional basis because, even ignoring the “commonwealth” issue, there is still jurisdiction to legislate intra Puerto Rico under the present Supreme Court case law regarding unincorporated territories. This alternate view validates the prosecution, and does not, however, affect my concurring with the majority on the outcome of this appeal.