United States v. Soler-Montalvo

• Decision Date: 02 August 2022
• Docket Number: 20-1311
• Citation: 44 F.4th 1
• Parties: UNITED STATES of America, Appellee, v. Rafael SOLER-MONTALVO, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

44 F.4th 1

UNITED STATES of America, Appellee,

v.Rafael SOLER-MONTALVO, Defendant, Appellant.

No. 20-1311

United States Court of Appeals, First Circuit.

August 2, 2022

Andrew S. McCutcheon, Assistant Federal Public Defender, with whom Eric Alexander Vos, Federal Public Defender, Franco L. Pérez-Redondo, Assistant Federal Public Defender, Supervisor, Appeals Division, and Kevin E. Lerman, Research & Writing Specialist, were on brief, for appellant.

Ross B. Goldman, with whom W. Stephen Muldrow, United States Attorney, Mariana Bauza and Ginette L. Milanés, Assistant United States Attorneys, Nicholas L. McQuaid, Acting Assistant Attorney General, and Robert A. Zink, Acting Deputy Assistant Attorney General, were on brief, for appellee.

Before Thompson and Howard, Circuit Judges, and Woodcock,^* District Judge.

THOMPSON, Circuit Judge.

After a four-day trial, a federal jury in Puerto Rico found Rafael Soler-Montalvo guilty of attempting to persuade, induce, or entice a minor to engage in criminal sexual activity. Appealing, he flags three areas of error. He says the evidence was constitutionally insufficient to convict him, that the district court erred in limiting the testimony of his expert witness, and that the prosecution engaged in a string of misconduct that ultimately discolored the jury's view of the trial. Finding the evidence sufficient, but the trial tainted by the erroneous limitation of Soler's expert's testimony, we vacate and remand for a new trial.

BACKGROUND

The story begins in March 2017. Soler was a 64-year-old retiree from the NYPD living in Guánica, Puerto Rico. After separating from his spouse at some point prior to 2017, he became lonely and had trouble socializing. So he began using some dating websites. One of the websites he used for dating was Craigslist, specifically the "Casual Encounters" section, where people posted personal ads.

In late March or early April 2017, one of the ads up on Craigslist in Puerto Rico was titled: "In Mayagüez for a few weeks." Opening up the ad that was posted as a "69" year-old woman (the poster) seeking a man (the responder), it said: "Hey, I'm visiting Mayagüez for a little bit, looking for a cool guy to spend some time with." One of the people who responded to the posting was Soler. After that, someone responded to Soler's email saying: "Hey, what's up can you send me a message on Kik Messenger at JanisN666. If you're into young thin girls say hi." "Janis," though, was actually Special Agent Ryan Sieg from Homeland Security Investigations, posing as a young girl.

From there, a Kik user -- later identified as Soler -- going by the username "4Real4U2Day" sent a message to Janis. And a conversation sparked over the next days or weeks. We'll get into much more detail later on, so we'll just give the highlights now.

Soler introduced himself (including telling Janis his background, where he lived, and about his children), asked Janis questions about her experience in Puerto Rico, and asked about where she was from. Quite early on in the conversation, Janis told Soler that she was 13 years old. Although Soler chuckled that remark off and said he thought Janis was joking, Janis doubled down that she was only 13. And although Soler expressed surprise that a 13 year old was posting on Craigslist Casual Encounters (which requires the poster to verify they are over 18), he acknowledged there was no way for Craigslist to verify that information.

From there, the conversation turned sexually explicit. Soler began asking Janis for photos of herself and making suggestive comments about her appearance. Eventually, Janis shared two photographs of "herself," which were actually childhood photos of a female law-enforcement officer used with her consent. The photos, which clearly reflected an underage girl, generated more suggestive comments from Soler about Janis's physical appearance. And the conversation became very sexual, with Soler telling Janis extensively -- and in some detail -- about the sexual things he wanted to do to her. He even sent a sexually explicit photo of himself.

Soler also discussed meeting up with Janis. The two discussed logistics, including for how long Janis could get away from her family, whether family members would be suspicious, where they should meet, and how Janis would get there. Throughout their conversation, Soler revealed concern that they would be caught and repeatedly sought assurances from Janis that their meeting would be their secret and that she wouldn't tattle to her family or the authorities. The two ultimately agreed to meet at the Walmart at the mall in Mayagüez. But on the day of the meet, "Janis" got scared and refused to come outside -- though not before figuring out what kind of car Soler was driving. After trying to convince Janis to come outside, Soler eventually drove away, leaving Janis with a reminder that everything should remain their secret. Soler was soon pulled over and arrested, and the officers pulled Soler's cell phone -- with the messages with Janis still on it -- out of the truck.

Following his arrest, a Puerto Rico federal grand jury handed down an indictment charging Soler with one count of attempt to persuade, induce, or entice a minor to engage in criminal sexual activity, in violation of 18 U.S.C. § 2422(b). And so began the criminal proceedings that eventually brought Soler to us. We'll offer more detail on all the procedural history later as it becomes relevant to the analysis. But, at a high level, here's what went down. At the district court, Soler and the government jostled over a host of issues before, at, and after the trial. Pre-trial, their spars included motion practice over the admission of Soler's proposed expert, with the district court ultimately issuing four separate, short orders on the subject, seemingly changing its mind (again, more on that later). After going to trial, at which Soler testified, a jury convicted Soler of the sole count against him. Soler moved for both a judgment of acquittal (claiming insufficient evidence to convict) and a new trial (claiming a litany of trial errors, including alleged evidentiary misfires, jury-instruction errors, and prosecutorial misconduct). The district court denied both motions, and Soler timely appealed.

DISCUSSION

I. Sufficiency of the Evidence

We begin with Soler's argument that there was insufficient evidence to find him guilty beyond a reasonable doubt, and that the district court therefore should have ordered an acquittal. See Fed. R. Crim. P. 29. Because Soler preserved his challenge to the sufficiency of the evidence below, our review is de novo. See United States v. Maldonado-Peña, 4 F.4th 1, 50 (1st Cir. 2021), cert. denied sub nom. Rivera-George v. United States, ––– U.S. ––––, 142 S. Ct. 1184, 212 L.Ed.2d 49 (2022). So we look at the issues with fresh eyes and without any deference to the district court's assessment. Id.

In testing the evidentiary sufficiency, we must "determine whether ‘any reasonable jury could find all the elements of the crime [proven] beyond a reasonable doubt.’ " United States v. Seary-Colón, 997 F.3d 1, 11 (1st Cir. 2021) (quoting United States v. Santos-Soto, 799 F.3d 49, 57 (1st Cir. 2015) ), cert. denied, ––– U.S. ––––, 142 S. Ct. 184, 211 L.Ed.2d 75 (2021). The question is not whether "no verdict other than a guilty verdict could sensibly be reached," but only whether "the guilty verdict finds support in a plausible rendition of the record." Id. (quoting United States v. Hatch, 434 F.3d 1, 4 (1st Cir. 2006) ). To affirm, we need not be satisfied that "the government succeeded in eliminating every possible theory consistent with the defendant's innocence." Id. at 14 (citation omitted).

To conduct our analysis, we review the record in the light most favorable to the verdict. United States v. Clough, 978 F.3d 810, 816 (1st Cir. 2020). In doing so, "we do not view each piece of evidence separately, re-weigh the evidence, or second-guess the jury's credibility calls." Seary-Colón, 997 F.3d at 12. Rather, we "giv[e] the prosecution the benefit of all sensible inferences and credibility choices." United States v. Cruz-Ramos, 987 F.3d 27, 36 (1st Cir. 2021). Indeed, it is not our role to "decide ‘which witness to credit,’ " for we must assume that the jury "credited those witnesses whose testimony lent support to the verdict." Id. at 38 (quoting United States v. Lara, 181 F.3d 183, 204 (1st Cir. 1999) ).

In the end, "[w]e will only reverse on a sufficiency challenge if, ‘after viewing the evidence and reasonable inferences in the light most flattering to the prosecution, [we conclude that] no rational jury could have found [the defendant] guilty beyond a reasonable doubt.’ " Seary-Colón, 997 F.3d at 11 (quoting United States v. Acosta-Colón, 741 F.3d 179, 191 (1st Cir. 2013) ). But if we do reverse, then that seals the deal because we must order acquittal, which then precludes a second trial. See Maldonado-Peña, 4 F.4th at 50.

Soler was charged with attempted coercion and enticement of a minor, in violation of 18 U.S.C. § 2422(b). To prevail, the government had to prove, beyond a reasonable doubt, that Soler (1) used a facility of interstate commerce (2) to attempt to, or to knowingly, persuade, induce, or entice (3) someone younger than eighteen years old (4) to engage in criminal sexual activity. See United States v. Dávila-Nieves, 670 F.3d 1, 7 (1st Cir. 2012). To prove its attempt theory, the government had to show that Soler "inten[ded] to commit the substantive offense" and took "a substantial step towards its commission." United States v. Berk, 652 F.3d 132, 140 (1st Cir. 2011). As most pertinent here, the parties agree that the government had to prove -- again, beyond a reasonable doubt -- that Soler believed Janis was a minor.¹

According to Soler, there was evidence that "undermined" the idea that he knew he was communicating with a minor. Chiefly, Soler points out that the encounter with Janis originated from a...