United States V. Dávila–Nieves

• Decision Date: 06 January 2012
• Docket Number: No. 10–1719.,10–1719.
• Citation: 670 F.3d 1
• Parties: UNITED STATES of America, Appellee, v. Eduardo DÁVILA–NIEVES, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

670 F.3d 1

UNITED STATES of America, Appellee,

v.Eduardo DÁVILA–NIEVES, Defendant, Appellant.

No. 10–1719.

United States Court of Appeals, First Circuit.

Heard July 28, 2011.Decided Jan. 6, 2012.

Héctor Luis Ramos–Vega, Assistant Federal Public Defender, with whom Héctor E. Guzmán, Jr., Federal Public Defender, was on brief, for Appellant.

Jenifer Yois Hernández–Vega, with whom Rosa Emilia Rodríguez–Vélez, United States Attorney, Nelson Pérez–Sosa, Assistant United States Attorney, Chief, Appellate Division, and Luke Cass, Assistant United States Attorney, were on brief, for appellee.

Before TORRUELLA, BOUDIN, and THOMPSON, Circuit Judges.

THOMPSON, Circuit Judge.

Eduardo Dávila–Nieves (Dávila) got caught attempting to induce a person he believed to be a minor to engage in sexual activity, and a Puerto Rico jury found him guilty of violating 18 U.S.C. § 2422(b). Claiming multiple errors, he appeals. As we find no merit to Dávila's arguments, we affirm.

BACKGROUND

“The facts, though disturbing, are not greatly disputed. Regardless, because [Dávila] challenges the sufficiency of the evidence, we recount them in some detail, and in the light most favorable to the verdict.” United States v. Berk, 652 F.3d 132, 134 (1st Cir.2011).

In June of 2007, a thirteen-year-old girl, Y.G., received a cell phone call from Dávila, whom she did not know. He asked Y.G. whether she was “the girl from the gas station.” Y.G. said she was not, but continued the conversation. Before hanging up, Dávila said he would call her back later. He did call back, and asked Y.G. her name and age. Y.G. falsely said that her name was Margarita and that she was fourteen. Dávila told her his real name, Eduardo, and his age, twenty-seven. They talked into the early morning.

Dávila and Y.G. continued communicating by phone and using text messages. Although the relationship started out as a friendship, Dávila steered their conversations to sexual matters. If they spent time together, he said, they might end up having sex. In phone conversations, Dávila discussed what he would do if they had sex and how Y.G. would feel. He also masturbated and asked Y.G. to touch herself.

Dávila made arrangements to meet Y.G. near her house on June 1, 2007. On that day, Y.G.'s family was having a birthday party for her younger sister and Y.G. said she could slip out to meet him. The meeting never happened because Y.G.'s uncle noticed a call that she received from Dávila. When Y.G.'s uncle asked her about the call, she told him that it was from a twenty-seven-year old friend of hers whom she spoke with regularly. He told Y.G.'s mother, who alerted the authorities.

Law enforcement officials began an investigation to corroborate Y.G.'s story. They ultimately recorded several conversations between Y.G. and Dávila. During those conversations, Dávila once again made plans to meet Y.G., this time at the movies. Y.G. also told Dávila other information—her real name and age, where she lived, where she went to school, and what grade she was in. Dávila said he wanted to take Y.G. to a motel where they could have sex. Although a meeting was initially scheduled to take place on June 21, it was cancelled because law enforcement officials needed more information to confirm Dávila's identity and location.

The Sting

Using Dávila's telephone number and records from the Puerto Rico Department of Motor Vehicles, law enforcement agents were able to verify Dávila's identity. Once they confirmed that Dávila had engaged in sexually themed communications with Y.G., that he was interested in meeting with her, and that he knew she was only thirteen, a sting operation targeting him commenced in earnest. To set up the operation, federal agent Rebecca González (González) instructed Y.G. to provide Dávila with an email address, which she did. Then, (pretending to be Y.G.) González sent an email to Dávila saying that Y.G.'s mom had found out about their plan to meet at the movies and had taken away Y.G.'s mobile phone. With no phone, she would have to channel her communications with Dávila through a thirteen-year-old friend, “Vanessa.” Actually, “Vanessa” was a fictional character played by González.

Dávila responded by email: “Hello is [sic] you know who, forget it, I'll wait for your call or leave me a message.” On July 2, González, still pretending to be Y.G., emailed Dávila asking if he had received a text message from “Vanessa.” Dávila replied on July 9: “Greetings, I haven't got any message. I wanted to know if you have called me several times private. When ever [sic] you want we can meet, bye.”

The trap had been set, but it would still be some time before it was sprung. In the meantime, there was almost a two-month break in communications between Dávila and law enforcement because González had to wait for her agency to provide her with an undercover phone. On September 5, 2007, González, pretending to be Y.G., reinitiated contact by emailing the fictitious “Vanessa's” mobile phone number (the new undercover phone number) to Dávila. Dávila called soon afterwards and throughout the rest of the month, González, posing as “Vanessa,” recorded four calls in which Dávila broached sexual topics and invited “Vanessa” to meet with him.

The operation seemed to be running smoothly until September 25, 2007. On that date, Dávila placed a late night 3 a.m. phone call to “Vanessa.” Initially, she did not pick up the phone but eventually she called Dávila back. In the conversation that ensued, Dávila asked repeatedly whether “Vanessa” wanted him to hang up so she could go back to sleep. As the conversation progressed, Dávila disclosed that he was in Miami looking for a job and would be returning to Puerto Rico on October 9. He offered to buy “Vanessa” a plane ticket to come to Miami, but she declined the offer. After that call, communications between Dávila and “Vanessa” ceased for about seven months. During that period, the undercover cell phone González had been using was turned off.

The sting operation resumed again on April 24, 2008, when “Vanessa” emailed Dávila to let him know she had a new mobile phone. Dávila sent emails on April 27 and April 28 asking for the new phone number. During April and May, “Vanessa” and Dávila communicated using text messages and email. “Vanessa” asked Dávila for his mobile phone number on several occasions, but he did not provide one right away. According to González, this was because Dávila did not have a mobile phone at that time. However, Dávila did try to contact “Vanessa” by calling her from a restricted phone number. He also sent her an email stating that “I have called you several times restricted and you don't answer.” “Vanessa” responded via email on May 12 saying, “Hey, don't call me private because I don't know who it is, just in case I am with my mom. Give me your number or call today in the evening.” On May 15, Dávila responded, “Every time I call you nobody answers it. What is more I'm not going to call, if you want to see me I'm going to be at the Fajardo basketball court in the TV transmission bus.”

Two days later Dávila emailed “Vanessa” and asked her to open an account so they could chat using an instant messenger service. She responded on May 20, adding Dávila as a “buddy” on her “buddy list” and sending Dávila an email invitation to chat in real time using instant messaging. On May 23, Dávila texted “Vanessa” with a new mobile phone number and they resumed speaking by phone, in addition to communicating using text messages and email. Law enforcement officials recorded several calls between Dávila and “Vanessa” in May and June of 2008.

On May 28, Dávila installed a webcam and invited “Vanessa” to see a video image of him over the internet. When she accepted and could see his image, he asked her to rate how he looked on a scale from 1 to 10. When she said she could see him from the neck up, he said that what was missing was “for [him] to get undressed.” Dávila mentioned that he had seen an online photograph of “Vanessa” in a bathing suit and that it “was not bad.” ¹ At this point, the conversations between Dávila and “Vanessa” became more explicit. ² Dávila said he had to “be beside [her] to teach [her]” and asked if she would let herself be “taught.” “Vanessa” asked what he wanted to teach her and he said about the computer, messenger, “and other things,” saying that “I am talking in double intentions.” Dávila asked “Vanessa” if she would bathe him. He told her that when a rooster makes love to a chicken “it is called that the rooster steps on it” and asked her if she was “going to let the rooster step on [her]?” “Vanessa” told Dávila “I have never been with anyone.” “Vanessa” said that a friend told her sexual intercourse hurts and that she bled. Dávila agreed but said that “afterwards its [sic] delicious” and “you are going to get hooked on how good it is and feels.” Dávila offered to use condoms, telling “Vanessa” that “you're not going to have kids or diseases.” He suggested that she “drink some beer so that [she] would relax” and then said he would bring beer and Smirnoff Ice beverages when they met.

During these conversations, Dávila expressed concern that “Vanessa” would “accuse” him “that [he] had relations with [her]” and that he would get sent to jail. Dávila then explained to “Vanessa” what it means to be a pedophile, which he described as “a man that goes to bed with girls, that is a crime.” Dávila said, “I don't want to do you.” “Vanessa” asked if Dávila had ever been with a girl her age. Dávila replied that he had already had sex with a fourteen-year-old, “and she loved it.” When “Vanessa” asked if it hurt, Dávila said that it needs to be done “softly” and said he would bring tampons in case she bled. He requested “please, the only thing I ask you is that you don't hurt me.” Dávila proceeded to discuss in detail the sexual acts he would perform on “Vanessa.”

Dávila continued communicating with “Vanessa” for about two...