United States v. Ramos

763 F.3d 45

UNITED STATES of America, Appellee,

v.Zairo RAMOS, Defendant, Appellant.

No. 12–1801.

United States Court of Appeals, First Circuit.

Aug. 13, 2014.

Steven A. Feldman, for appellant.

Nelson Pérez–Sosa, Assistant United States Attorney, Chief, Appellate Division, with whom Rosa Emilia Rodríguez–Vélez, United States Attorney, was on brief, for appellee.

Before THOMPSON, BALDOCK,^* and LIPEZ, Circuit Judges.

LIPEZ, Circuit Judge.

Zairo Ramos and three co-defendants were recorded on video engaging in sex acts with a fourteen-year-old girl. In defending at trial against a charge of aiding and abetting the production of child pornography, Ramos claimed unsuccessfully that he did not know the acts were being recorded. Invoking the insufficiency of the evidence, he presses that same argument on appeal, along with a claim that the trial judge deprived him of his right to call a key witness.

With respect to sentencing, Ramos contests the length of, and justification for, his prison term, and challenges supervised release conditions that generally forbid him from using a computer or the internet without permission from his probation officer or the court, and another supervised release condition that bars him from having any “pornographic material.”

After carefully considering the record, we affirm the conviction and reject Ramos's challenges to his prison sentence. However, we agree with Ramos that United States v. Perazza–Mercado, 553 F.3d 65 (1st Cir.2009), requires us to vacate the internet, computer, and pornography supervised release conditions. Under Perazza–Mercado, these conditions are not reasonably related to Ramos's characteristics and history, and thus deprive him of more liberty than reasonably necessary to achieve the goals of sentencing. There remain several narrower computer and internet restrictions that Ramos did not challenge on appeal.

I.

In 2010, KMV,¹ then 14, asked a friend of her mother's if he knew anyone in their housing project who had a computer and Internet access. ² KMV had known her mother's friend, Félix Iván Rodríguez–Acevedo, since she was seven or eight and considered him “like my uncle.” Rodríguez–Acevedo introduced KMV to Rey Vilanova–Delgado (“Vilanova”), a resident on another floor of her building. Through this introduction, KMV was able to use Vilanova's computer to check social-networking websites, lounge in his apartment playing video games, and watch movies. She told investigators that Vilanova and Rodríguez–Acevedo began to touch her during her visits to the apartment. Other men also came to the apartment and engaged in sexual acts with KMV.

In February 2011, a social worker in the housing project learned of the sexual contact between KMV and Vilanova. Other neighbors had heard this rumor as well; they reacted by beating Vilanova with a baseball bat. While Vilanova recovered in the hospital, his mother turned over to the social worker a box of sexually-explicit photos, along with various VCR and DVD recordings. Investigators from the cyber crimes unit of the Department of Homeland Security interviewed Vilanova, and they searched some of his electronic devices after he signed a form consenting to the searches.

Among the recordings turned over to police were three videos, shot from different angles, of an incident in May or June of 2010.³ In the videos, Ramos and co-defendants Rodríguez–Acevedo, Vilanova, and Félix Javier González–Morales, engaged in sex acts with KMV. Count 1 of a superseding indictment alleged that Ramos, “while aiding and abetting” the three co-defendants in the video, “did employ, use, persuade, induce, entice or coerce” KMV to engage in “the lascivious exhibition of the genital areas” and the performance of “sexual acts, for the purpose of producing a visual depiction,” in violation of 18 U.S.C. § 2251(a).⁴ The aiding and abetting statute, 18 U.S.C. § 2, provides that a defendant “is punishable as a principal” if he “aids, abets, counsels, commands, induces or procures” the commission of a federal crime.

At trial, Ramos conceded that he was depicted engaging in sexual acts with KMV, such as receiving oral sex, but contended that he did not know he was being filmed, and thus he could not have aided and abetted the crime of producing child pornography. The jury instructions, which are not challenged on appeal, told jurors to consider whether “the defendant was aware that recording, video recording, photographing, was taking place during the sexual conduct.” ⁵

At the close of the prosecution's case, Ramos moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29. The district court denied the motion, noting in its ruling from the bench that there was a video camera visible in one of the still images from the videos, and that it was “patently clear, it's beyond any reasonable doubt, that everybody in that room knew that they were being recorded, and that cameras were being used to record.”

Ramos then sought to call Vilanova as a witness to ask whether Vilanova had told him that the sex acts were being recorded. Vilanova asserted his Fifth Amendment right against self-incrimination, citing the pending sentencing on his plea deal in the case, possible incriminating answers that might be elicited on cross-examination, and local charges still pending for lascivious acts. The district court held that Vilanova had properly invoked the Fifth Amendment. The jury found Ramos guilty, and the court sentenced him to 188 months in prison and ten years of post-release supervision. Included in the special conditions of supervision were requirements that Ramos “shall not possess or use a computer that contains an internal, external or wireless modem without the prior approval of the Court,” and that he “shall not possess or use a computer, cellular telephone, or any other device with internet accessing capability at any time and/or place without prior approval from the probation officer.” Further, the court added a condition that Ramos “will not possess any pornographic material, unless approved by the probation officer.” Ramos objected only to the general ban on the use of computers and the internet. He followed with this timely appeal, which includes a challenge to the ban on the possession of pornographic material.

II.

We review de novo Ramos's preserved claim that there was insufficient evidence that he knew the sexual conduct with KMV was being recorded.⁶ Our task is to evaluate the evidence “in the light most favorable to the prosecution,” United States v. Jones, 674 F.3d 88, 91 (1st Cir.2012) (internal quotation marks omitted) to see if “a rational factfinder could find guilt beyond a reasonable doubt,” id. We do not re-weigh the evidence or take up the jury's credibility determinations, United States v. Polanco, 634 F.3d 39, 45 (1st Cir.2011), nor do we place a “premium” on “direct as opposed to circumstantial evidence; both types of proof can adequately ground a conviction.” United States v. Cortés–Cabán, 691 F.3d 1, 12 (1st Cir.2012) (internal quotation mark omitted).

Ramos's argument at trial and on appeal is largely the same: he protested twice in the videos when it appeared someone was recording or photographing him, and it “defies logic” that someone who so strenuously objected knew there was a camera recording. He characterizes the government's case as a mere “patchwork of surmises and guesses” about the video recordings. His argument fails.

Three overlapping videos, capturing about forty-six-and-a-half minutes of relevant content, were introduced at trial. The first video, referred to at trial as Video A, was thirty-three-and-a-half minutes. Ramos first appeared in that video after about two minutes of recording. Video B, the second recording, was shot from a different angle in the room. It overlapped with most of the content of Video A, and continued recording after the camera filming Video A was turned off.⁷ Ramos was in the bathroom with KMV when Vilanova turned on the camera for Video B, according to trial testimony from investigator Rosa Robles Carrasquillo. Ramos argued at trial that the beginning of videos A and B do not indicate that he saw the cameras being turned on; further, he argued that there was no testimony that the cameras made noise or had recording lights to alert him that they were on.

The final recording, Video C, was thirty seconds long. It was recorded at the end of the forty-six minutes of content shown at trial, and showed Ramos at the end of the bed, dressing KMV. The video zoomed in and out on KMV's breasts. Investigator Robles, who was familiar with the layout of the apartment, testified that from the angle of the camera it appeared that the person holding it was on the bed, within a few feet of Ramos and KMV. There is no indication in Video C that Ramos said anything in response to being recorded.

About twenty-nine minutes into the recorded content, Vilanova could be seen taking still photographs of a naked KMV. About a minute later, KMV grabbed a camera and began to use it to take photos of the men. When she attempted to take Ramos's photo, he said “no, not me” in Spanish. Ramos also commented in response to being recorded a few minutes later, when Vilanova took the video camera recording Video A and used it to scan around the room. When he did so, he zoomed in on KMV's vagina, then focused on Ramos. Someone in the video commented that Ramos was covering himself up in response to the camera, to which Ramos replied in Spanish that he was not covering himself, “it's that this motherfucker is recording.” Video A then stopped recording. Video B continued, capturing Ramos, Rodríguez–Acevedo, and KMV as they later danced together on the bed naked. Seeing these videos, the jurors could easily have concluded that Ramos's purported protests showed simply that he did not want to be the focus of attention in a video that showed him committing a federal crime.

KMV's testimony provides further...