United States v. Montijo-Maysonet, No. 18-1640

• Decision Date: 01 September 2020
• Docket Number: No. 18-1640
• Citation: 974 F.3d 34
• Parties: UNITED STATES of America, Appellee, v. Byron MONTIJO-MAYSONET, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

974 F.3d 34

UNITED STATES of America, Appellee,

v.Byron MONTIJO-MAYSONET, Defendant, Appellant.

No. 18-1640

United States Court of Appeals, First Circuit.

September 1, 2020

Jessica E. Earl, Assistant Federal Defender, with whom Eric Alexander Vos, Federal Public Defender, and Vivianne M. Marrero, Assistant Federal Defender, Supervisor, Appeals Section, were 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.¹

When he was twenty-eight, Byron Montijo-Maysonet drove three middle schoolers to a motel so he and his pal could have sex with them. That's called sexual assault, see P.R. Laws Ann. tit. 33, § 5191(a), and federal statutes make it a crime to "entice" or "induce" it over the Internet or "transport" a minor within Puerto Rico to commit it. See 18 U.S.C. §§ 2422(b), 2423(a) ; see United States v. Cotto-Flores, No. 18-2013, ––– F.3d ––––, ––––, 2020 WL 4582283, at *9 (1st Cir. Aug. 10, 2020). Montijo now asks us to flip his convictions and sixteen-and-a-half-year sentence. Seeing no reversible error, we affirm.

HOW THE CASE GOT HERE

The Two "Vueltas"

It all started in November 2015, when Montijo's cohort, Luis Meléndez (a/k/a "Puky"), met CAP (his cousin's daughter) at a family birthday party.² She had just turned fourteen and started eighth grade at Marchand Middle School, a school for seventh to ninth graders in Manatí, Puerto Rico. The two struck up a chat and, before they left, exchanged contact info so Meléndez could write to CAP on KIK, an instant messaging app. A few days later, Meléndez messaged CAP and they made plans to meet again, this time without her family knowing. In the meantime, Meléndez found CAP's friend DPP on Facebook and looped her into a group chat. DPP was thirteen years old and also in eighth grade. On a Friday, Meléndez, CAP, and DPP used KIK to plan to meet the following Monday (November 24, 2015) at the middle school and drive to a motel.

As planned, when they got to school on Monday, CAP and DPP walked to a nearby food truck, where Meléndez and Montijo were waiting. They weren't in their school uniforms, Montijo stresses. Before that day, neither girl had spoken to Montijo. Meléndez introduced himself to DPP, said Montijo was his "friend," and told her they "were going to go for a ride."

Montijo drove. First, they stopped at a housing project, where the men asked the children if they "wanted to smoke or drink anything." Then, Montijo drove to a motel called "El Jackeline," a secluded joint tucked away on a long road off of Route 2 and surrounded by a hedge and a concrete wall. The motel didn't charge an overnight rate. Instead, guests could pay twenty dollars to use a room for six hours. To rent a room, you pull into a garage next to a cabana, put the money in a drawer, and enter the room. An employee looks through a peephole at the gate to see the car's license plate number and record the plate number, the room number, and the time of arrival — all without seeing the guests. The motel room itself (at least the one Montijo used) is a 200-square-foot unit with two plastic chairs, a bathroom, and a double bed surrounded by mirrors. The whole set up (the motel's owner later testified) is designed to ensure guests' "privacy."

Once they got there, things happened "fast," DPP testified. Montijo and Meléndez rented two cabanas, and Montijo pulled the car into a garage next to one of them. Meléndez and CAP went into one room, and Montijo and DPP went into another. Once in the bedroom, Montijo "quickly told me that I didn't have to do anything I didn't want to," DPP later recounted. They sat down on the bed and Montijo told her that "he liked [her] hair, [her] eyes." In the other room, Meléndez had sex with CAP. Then, CAP and Meléndez called DPP to tell them they'd "finished," and they all met back at the car.

Montijo drove the girls back to the school. Once they got there, Montijo and Meléndez made sure to stay out of sight. Instead of driving DPP and CAP to the school's front door, the men dropped them off one street away — according to CAP and DPP, so "the teachers and people from the school" wouldn't see the defendants. After that, CAP never spoke to Meléndez or Montijo again.

But over the next week, Montijo used KIK to keep in touch with DPP. At trial, DPP testified that they "didn't talk about anything specific. It was just that [Montijo] wanted to see [her] again." Soon, another "group [chat] was formed," this time among Meléndez, Montijo, and DPP. "[O]nce [the chat] was opened, the first thing" Meléndez said was that DPP should "bring in [an]other person." In context, DPP took this to mean "another girl." So she added her friend KVM to the group chat. KVM was also thirteen and in eighth grade. With KVM added, Meléndez, Montijo, and DPP all said they "wanted to do another outing," meaning another "ride." They used the word "vuelta" in Spanish (the same word they'd used before). And they planned to "meet in the same way" as last time: Montijo and Meléndez would pick the girls up at the food truck and drive them back to the motel.

So, on November 30, 2015 (six days after the first outing), Montijo and Meléndez took DPP on another drive, this time with KVM. That morning, after DPP's mother dropped her off at school, she and KVM met Montijo and Meléndez at the same food truck. They were both in school uniform, and DPP had her schoolbag. After Meléndez "introduced himself to [KVM]," Montijo drove them once more to the housing project, where (once again) the men asked the children if they "wanted to drink anything or smoke anything." Then he drove to the same motel. On the way (DPP testified), KVM asked DPP what "she ha[d] to do." DPP (parroting Montijo) "told her that she didn't have to do anything she didn't want to do." When they arrived at the motel, the four paired off like last time — Meléndez with KVM, Montijo with DPP — into separate cabanas. This time, "when [DPP] got into the cabana with [Montijo]," they had sex.

At that point — in a scene Montijo made the centerpiece of his defense — DPP testified that she "took out [her] notebook," and Montijo "saw [her] grade" (which was presumably written on the notebook) and "asked [DPP] how old [she] was." DPP said thirteen. Montijo was "shock[ed]" (shocked!), he tells us. Meléndez and CAP had told him she was sixteen and told DPP that Montijo was twenty. Montijo told DPP that he was really twenty-eight, and that if he'd "known that [she] was [thirteen], he wouldn't have done it." But he assured her he would "wait for [her] to come out of high school" and "was going to take care of [her]."

Montijo and DPP then went to the cabana next door, where they saw Meléndez and KVM naked on the bed. DPP went into the room and "took the money ... that was right next to [Meléndez]," which she'd been told to take to Montijo. Just then, Meléndez's phone rang. DPP answered it. On the other line, CAP warned that the school had noticed they were gone and the police were waiting there. DPP hung up and gave Montijo the news. Once Meléndez and KVM got dressed, the men (with Montijo driving) drove the girls to a Burger King for an alibi — "so [they] could say" that they'd "been eating."

After the pit stop, Montijo drove the girls back to school, where KVM's father was waiting. He ran toward the car. KVM got out, but before DPP could follow, Montijo sped off. He drove to a house, where Meléndez spoke to a man DPP didn't know. The man ushered the three of them (Montijo, Meléndez, and DPP) into a van and drove them back to the housing project, where they waited "for things to calm down." When the coast seemed clear, another man drove Montijo and DPP to a street near the school, where they dropped off DPP.

The Trial

A federal grand jury indicted Montijo and Meléndez on a slew of sex crime charges. Specifically, count one charged that Montijo "used a facility and means of interstate commerce, namely the cellular phone application ‘KIK,’ to knowingly persuade, induce, entice, and coerce a 13-year-old minor female [DPP] to engage in sexual activity for which any person may be charged with a criminal offense under the laws of ... the Commonwealth of Puerto Rico," which violated 18 U.S.C. § 2422(b). Four other counts (one per victim per drive) charged him with transporting the minors in a "commonwealth, territory, or possession of the United States" with the same illicit intent, violating 18 U.S.C. § 2423(a).

The indictment charged Meléndez under the same statutes and added four unrelated charges against him for producing child pornography, which agents had found stored on his cell phone when they searched it.³ Before long, Meléndez entered a plea deal with the government and copped to one count of producing child pornography. In exchange, the government dropped the remaining counts. He was sentenced to 192 months in prison.

Montijo went to trial.⁴ To prove its case, the government called CAP, DPP, the motel owner (to describe the joint), KVM's father, and several government agents from the Department of Homeland Security Investigations (HSI) task force who'd investigated the case. CAP told the jury how she met Meléndez at the family party and narrated the first drive to the motel, when Meléndez had sex with her. Then DPP recounted both drives, the KIK chats, and how Montijo had sex with her on the second trip to the motel. By the end of her testimony, when she described how Montijo told her he'd "wait for [her] to come out from high school" and "take care of [her]," DPP broke down sobbing.

In his defense, Montijo did not dispute DPP's story or try to undermine her testimony. He agreed that the two went on a "blind date" set up by Meléndez, and that on the second "date," they "had sex" ...