United States v. Cotto-Flores

• Decision Date: 10 August 2020
• Docket Number: No. 18-2013,18-2013
• Citation: 970 F.3d 17
• Parties: UNITED STATES of America, Appellee, v. Yaira T. COTTO-FLORES, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

970 F.3d 17

UNITED STATES of America, Appellee,

v.Yaira T. COTTO-FLORES, Defendant, Appellant.

No. 18-2013

United States Court of Appeals, First Circuit.

August 10, 2020

Luis Rafael Rivera-Rodríguez, with whom Allan Amir Rivera-Fernández was on brief, for appellant.

Julia M. Meconiates, 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 Howard, Chief Judge, Torruella and Thompson, Circuit Judges.

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 P.R. Laws Ann. tit. 33, §§ 4770, 4772. And to anyone familiar with our federal system of government, which trusts the states to handle most local criminal offenses (and thereby protects their citizens from federal overreach), it might have seemed like a case for Puerto Rico to prosecute and punish. After all, "[p]erhaps the clearest example of traditional state authority is the punishment of local criminal activity." Bond v. United States, 572 U.S. 844, 858, 134 S.Ct. 2077, 189 L.Ed.2d 1 (2014). By limiting federal jurisdiction over local criminal conduct, and leaving room for state prosecutors to exercise discretion, the Constitution not only protects states' "sovereign" policy choices; it safeguards "the liberty of the individual from arbitrary power." Id. at 864–65, 134 S.Ct. 2077. It gives people "within a State" the right to be free from federal prosecution for "laws enacted in excess" of Congress's delegated "governmental power[s]," Bond v. United States, 564 U.S. 211, 222, 225, 131 S.Ct. 2355, 180 L.Ed.2d 269 (2011), powers that are carefully "limited" within the fifty states, United States v. Morrison, 529 U.S. 598, 607, 618, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000) ("The regulation and punishment of intrastate violence that is not directed at the instrumentalities, channels, or goods involved in interstate commerce has always been the province of the States."). But not in Puerto Rico.

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, 100 S.Ct. 1929, 64 L.Ed.2d 587 (1980) (quoting U.S. Const., Art. IV, § 3, cl. 2 ) (emphasis added). For that reason, in important ways, the U.S. government can treat the island and its residents differently. See id. ; Puerto Rico v. Shell Co., 302 U.S. 253, 257, 58 S.Ct. 167, 82 L.Ed. 235 (1937) (citing Balzac v. Porto Rico, 258 U.S. 298, 304, 205, 42 S.Ct. 343, 66 L.Ed. 627 (1922) ); Franklin Cal. Tax-Free Tr. v. Puerto Rico, 805 F.3d 322, 344–45 (1st Cir. 2015) ; see also below at 50–52 and cases cited. Unfortunately for Cotto, that's just what happened here.

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. 18 U.S.C. § 2423(a).¹ Cotto was tried, convicted, and sentenced to ten years in federal prison. She now appeals.

She makes four main arguments. First, she contends that § 2423(a), like its counterpart covering adult victims, see United States v. Maldonado-Burgos, 844 F.3d 339, 349–50 (1st Cir. 2016) (construing 18 U.S.C. § 2421(a) ), only applies to transportation in "interstate or foreign commerce" with respect to Puerto Rico (that is, to travel to or from the island); and since she never left Puerto Rico with the victim, the drive wasn't a federal crime. Second, even if § 2423(a) covers intra-Puerto Rico travel, there was insufficient evidence to prove she drove the victim anywhere — even within Puerto Rico. Third, the judge confused the jury by explaining the elements of the Puerto Rico crimes (of "sexual assault" and "lewd acts") the government alleged she'd intended to commit at her destination. And fourth, the judge should not have let the victim testify by two-way videoconference, which violated Cotto's Sixth Amendment right to confront her accuser in person.

Here are the spoilers. We disagree with all but one of Cotto's gripes. Namely: § 2423(a)'s ban on transporting a minor to commit a sex crime, unlike § 2421(a)'s general prohibition, applies to transportation within Puerto Rico, which is a "commonwealth ... of the United States" under the statute; there was ample evidence to find Cotto guilty; and the judge properly instructed the jury on the local crimes Cotto allegedly drove the victim to the motel to commit. However, we hold that the judge violated Cotto's Sixth Amendment right to in-person confrontation when he allowed the victim to testify by two-way close-circuit television ("CCTV") under a misreading of Maryland v. Craig, 497 U.S. 836, 855–56, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), and without making the specific "on the record" findings that 18 U.S.C. § 3509(b)(1)(C) and Craig require. On these unique facts, we conclude that the appropriate remedy is to reverse Cotto's conviction and remand for a new trial.

HOW WE GOT HERE

The Crime²

Cotto started teaching at Escuela Manuel Torres Villafañe, 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.

"I have left a lot for you," she messaged him, "and risk myself every day, to losing even my job." "We have to hide babe" (she wrote); "[i]f your mom makes a complaint, well, then the biggest scandal in the world explodes." On February 3, 2016, they went to a nearby motel and had sex for the first time.

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 18 U.S.C. § 2423(a), which (along with §§ 2421–24) codifies the Mann Act of 1910, Pub. L. No. 61–277, § 2, 36 Stat. 825 (1910), as amended in the Protection of Children from Sexual Predators Act of 1998, Pub. L. No. 105–314, § 103, 112 Stat. 2974, 2976 (1998) (the "Protect Act").³ Section 2423(a) provides that anyone "who knowingly transports" someone under eighteen years old "in interstate or foreign commerce, or in 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." 18 U.S.C. § 2423(a). Cotto twice moved to dismiss the indictment, arguing both times that § 2423(a) requires transportation across state or territorial lines and doesn't cover trips from one place to another within Puerto Rico. But the judge denied both motions, finding that Puerto Rico is a "commonwealth" within the meaning of the Act. See United States v. Cotto-Flores, No. Cr. 16-206, 2016 WL 5818476, at *2–3 (D.P.R. Oct. 5, 2016). Having upheld the indictment, the judge set the case for trial.

Several days before trial, the government filed a motion to have YMP testify by two-way closed-circuit television ("CCTV") under 18 U.S.C. § 3509(b) (permitting that procedure if the government shows the victim can't testify in the defendant's presence "because of fear" or because expert testimony has established a "substantial likelihood" (s)he "would suffer emotional trauma from testifying," among other reasons).⁴ Cotto opposed the request, arguing that remote testimony wasn't necessary and...