After a jury convicted him “on all counts of a
seventeen-count indictment charging mail fraud, wire fraud, bank fraud, and
aggravated identity theft”, Steve Soto appealed his conviction to the U.S.Court of Appeals for the 1st Circuit. U.S. v.
Soto, 2013 WL 3156598 (2013). This post examines one of the issues he
raised on appeal: whether “he trial court violated his 6th Amendment right to confront the witnesses against him by admitting testimony of a forensic
examiner about another examiner's prior examination.” U.S. v.
Soto, supra.
This, according to the opinion, is how the case arose:
On March 27, 2006, Soto brought his
girlfriend, Yessica Amaro, to Motorcycles of Manchester (MoM's) in New
Hampshire. Soto purchased a 2003 Suzuki motorcycle for Amaro, who was posing as
`Christine Escribano.’ Soto told the office manager at MoM's he would bring
Escribano's license when he came to pay and retrieve the motorcycle the next
day. Although Soto neglected to produce Escribano's license, MoM's completed
the sale . . . on March 28, 2006.
On April 1, 2006, Soto and Amaro
repeated the scheme at Kelly Power Sports in Danvers, Massachusetts. This time
they produced Escribano's driver's license, which a salesperson photocopied,
and they purchased another 2003 Suzuki motorcycle. On April 6, 2006, Soto and
Amaro continued the charade at North Reading Motor Sports in North Reading,
Massachusetts, once again using Escribano's driver's license to purchase two
Honda motorcycles. The manager at North Reading Motor Sports made a photocopy
of Escribano's license for his records.
Soto paid for the motorcycles with counterfeit
cashier's checks, and the dealerships applied for title and registration for
the motorcycles with the Massachusetts Registry of Motor Vehicles (RMV) in
Escribano's name. Soto then sent counterfeit notarized affidavits to the RMV, transferring the titles to the
motorcycles to either his uncle, Salvador Shower, or his friend, Abraham Dominguez.
Soto intercepted the `clean’ titles issued by the RMV from the mail of Shower
and Dominguez. Once Soto had the titles, another friend posed as either Shower
or Dominguez and sold the motorcycles to innocent third parties.
Christine Escribano testified that she
had lost her driver's license, and she identified her license from the
photocopy made by one of the motorcycle dealerships.
Soto also purchased three
automobiles posing as Gregory Bradley, a friend of Soto's who was incarcerated
at the time. Soto produced Bradley's driver's license to buy the cars and to
obtain financing for the car purchases. . . .
U.S. v. Soto, supra. (In its opinion, the court noted that “[b]ecause
Soto is not contesting the sufficiency of the evidence supporting the charges
related to the car purchases, we need not describe this scheme in detail.” U.S. v. Soto, supra.)
That brings us to the laptop: “Soto moved to suppress incriminating
evidence found on a laptop computer seized in an inventory search of one of the
automobiles [he] purchased using Bradley's identity”, claiming the seizure of
the laptop “violated his 4th Amendment rights.” The district court judge denied the motion. U.S. v. Soto, supra. As I noted in a recent post, the 4th
Amendment creates a right to be free from “unreasonable” searches and seizures;
“reasonable” searches and seizures are conducted either pursuant to a warrant
or to an exception to the warrant requirement.
As I noted, the Supreme Court has held it is “reasonable” to let
officers inventory the contents of seized vehicles to ensure nothing dangerous
is in the vehicle and to protect themselves from false claims that valuable
property is missing from the vehicle. The district court judge denied the motion
and Soto apparently did not challenge the inventory search in this appeal.
Instead, he challenged the admission of certain testimony:
At trial, Special Agent Michael Pickett
of the United States Secret Service testified about a computer forensics examination
he had conducted on the seized laptop. Pickett first testified generally about
how a forensics examination is conducted and then identified Exhibit 30 as the
hard drive removed from the laptop. Pickett explained that another forensics
examiner, John Murphy, had done a forensics examination before him. Pickett
testified: `I took the hard drive out of this laptop, I made my own image and I
examined the image of the hard drive and I confirmed that everything that was
in John Murphy's report was exactly the way he said it was.’
U.S. v. Soto, supra.
In testifying, Pickett “identified Exhibit 20, which consisted of several
documents that were found on the hard drive of the laptop” and also testified as follows:
PROSECUTOR: After you made an image of the hard
drive from Exhibit 30, the laptop computer, were you able to print out certain
documents that appear on the hard drive?
AGENT PICKETT: I did not make a hard copy printout;
however, I used the forensic program called EnCase to find this document, and
it was contained in the same folder that John Murphy had said that he had found
it in.
PROSECUTOR: So am I correct in
understanding that each of the pieces of paper in Exhibit 20 are hard copies of
stuff you confirmed were in the hard drive that was in Exhibit 30?
AGENT PICKETT: Yes. I saw this
document, this file, looking in EnCase and confirmed that it was on the image
of the hard drive that I made.
U.S. v. Soto, supra. The prosecution then “offered Exhibit 20”
into evidence, and Soto's counsel “stated: `Judge, for the record I have to
object pursuant to a previous motion I made to the Court, but I do that only
for the record.’” U.S. v. Soto, supra. The district court judge admitted Exhibit 20
into evidence. U.S. v. Soto, supra.
Pickett was then cross-examined by Soto’s attorney, a cross
examination that included the following:
COUNSEL: Just so we're clear, you were the second
Secret Service agent to perform forensic work on the laptop, correct?
AGENT PICKETT: That is correct. John Murphy was
the original examiner, and then I re-examined it.
COUNSEL: Why did you re-examine it?
AGENT PICKETT: I was asked to.
COUNSEL: By whom were you asked to?
AGENT PICKETT: By Attorney Capin.
COUNSEL: And what was the reason why you were
asked to?
AGENT PICKETT: To confirm that everything on John
Murphy's report was exactly the way he said it was.
U.S. v. Soto, supra.
This exchange came at the end of his testimony:
PROSECUTOR: And just one last question. You were
asked a number of questions about the original agent, I think Murphy, who
analyzed this. Do you know why Murphy isn't here today?
AGENT PICKETT: That is correct. John
Murphy has, as part of our normal career transition, has gone on to Washington,
D.C. He's now part of what's called our technical security division. He's in
charge of the alarms and electronic security at the White House.
U.S. v. Soto, supra.
As I noted above, Soto claimed this testimony violated his 6th
Amendment right to confront witnesses. U.S.
v. Soto, supra. The Court of Appeals
began its analysis of his argument by noting that, because he “did not raise a
contemporaneous 6th Amendment objection to Agent Pickett’s
testimony, we review the district court’s admission” of the testimony “for plain error.” U.S. v. Soto, supra. It explained that to prevail, Soto had to
show an error, “that is plain” and that affected his substantial rights. U.S. v.
Soto, supra. It also explained that
if he established all three elements, it could, “in its discretion,” “notice
the forfeited” error but if it seriously affected the fairness, integrity or
public reputation of judicial proceedings. U.S.
v. Soto, supra.
It then took up the 6th Amendment issue,
explaining that the amendment says that
`In all criminal prosecutions,
the accused shall enjoy the right . . . to be confronted with the witnesses
against him. . . .’ In Crawford
v. Washington, 541 U.S. 36 (2004), the Supreme Court held that the 6th
Amendment bars the `admission of testimonial statements of a witness who did
not appear at trial unless he was unavailable to testify and the declarant had
had a prior opportunity for cross-examination.’
U.S. v. Soto, supra.
It also pointed out, however, that a “critical part of the
Crawford” Court’s holdingis the
phrase `testimonial statements.’
Only statements of this sort cause the defendant to be a `witness' within the
meaning of the Confrontation Clause. It is the testimonial character of the
statement that separates it from other hearsay that, while subject to
traditional limitations upon hearsay evidence, is not subject to the
Confrontation Clause.
U.S. v. Soto, supra. The court also noted that the Supreme Court
has yet to “supply `a comprehensive definition of testimonial’”, but has
provided an “illustrative list” of the “`core class of “testimonial”
statements”. U.S. v. Soto, supra. The
list is as follows:
(1) `ex parte in-court
testimony or its functional equivalent -- that is, material such as affidavits,
custodial examinations, prior testimony the defendant was unable to
cross-examine, or similar pretrial statements declarants would reasonably expect
to be used prosecutorially,’ (2) `extrajudicial statements . . . in formalized testimonial materials,
such as affidavits, depositions, prior testimony, or confessions,’ and (3) `statements made under circumstances which would lead an objective witness
reasonably to believe that the statement would be available for use at a later
trial.’
U.S. v. Soto, supra
(quoting Crawford v. Washington, supra).
The court noted that in Bullcoming v. New Mexico, 131 S.Ct. 2705
(2011), the Supreme Court held that “a blood alcohol content report
can be used against the defendant only if [he] has the opportunity to confront
at trial the analyst who performed, observed, or supervised the forensic
examination.” U.S. v. Soto, supra. It also noted that in Williams v. Illinois, 132 S.Ct. 2221 (2012), the Court was divided
as to whether crime lab reports can be used at trial if the analyst who
prepared them did not testify. U.S. v.
Soto, supra.
The Court of Appeals then held that Pickett did not testify
as a surrogate witness for Murphy:
Bullcoming was . . . arrested for driving while intoxicated. At
trial, the government introduced into evidence a laboratory report certifying [his] blood alcohol content was above the legal limit. The report was
authenticated at trial by an analyst who was familiar with the laboratory's
testing procedures but otherwise had nothing to do with the test. . . .
The Court explained that the testifying analyst provided impermissible
`surrogate testimony’ because the testifying analyst had no knowledge about the
test of Bullcoming's blood alcohol content or the analyst who performed the
test. . . .
Unlike in Bullcoming, Murphy's
forensic report was not introduced into evidence through Pickett. Pickett
testified about a conclusion he drew from his own independent examination of
the hard drive. The government did not need to get Agent Murphy's report into
evidence through Agent Pickett. . . .
We do not interpret Bullcoming to
mean that the agent who testifies against the defendant cannot know about
another agent's prior examination or that agent's results when he conducts his
examination. The government may ask an agent to replicate a forensic
examination if the agent who did the initial examination is unable to testify
at trial, so long as the agent who testifies conducts an independent
examination and testifies to his own results.
U.S. v. Soto, supra.
It also found Soto's argument that Murphy's report bolstered
Pickett's testimony hit closer to
the mark. . . . Pickett
testified that the incriminating documents in Exhibit 20 were found on a laptop
. . . seized from Soto's car. Although Pickett had independent knowledge of
that fact, he testified that `everything that was in John Murphy's report was exactly
the way he said it was,’ and that Exhibit 20 `was contained in the same folder
Murphy said that he found it in.’ `[I]f what the jury hears is, in substance,
an untested, out-of-court accusation against the defendant . . .the defendant's 6th Amendment right to
confront the declarant is triggered.’ U.S. v. Meises, 645 F.3d
5 (U.S. Court of Appeals for the 1st
Circuit 2011).
These two out-of-court statements
attributed to Murphy were arguably testimonial and offered for their truth. Pickett
testified about the substance of Murphy's report which Murphy prepared for use
in Soto's trial. Murphy's conclusion in his report, which Pickett repeated, was
offered to show that the Exhibit 20 documents were located on the hard drive of
the laptop seized from Soto's vehicle. Pickett's testimony about Murphy's prior
examination of the hard drive bolstered Pickett's independent conclusion that
the Exhibit 20 documents were found on Soto's hard drive.
U.S. v. Soto, supra.
But while the court found this violated the 6th
Amendment’s Confrontation Clause, it also found the violation “was not plain
error.” U.S. v. Soto, supra. It noted that if Soto’s lawyer had made a
contemporaneous 6th Amendment objection or objected to Murphy's
absence, the trial court could have given a curative instruction, or the
government could have produced Murphy to testify. . . .Furthermore,
Murphy's out-of-court testimonial statements linking Soto to the Exhibit 20
documents were entirely cumulative of Pickett's in-court testimony regarding
his own independent examination. The admission of Pickett's statements about
the conclusions in Murphy's report did not affect Soto's substantial rights. We
conclude there was no plain error.
U.S. v. Soto, supra. For these and other reasons, the court
affirmed Soto’s convictions and sentence. U.S.
v. Soto, supra.
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