United States v. Greaux-Gomez ( 2022 )

United States Court of Appeals
For the First Circuit
No. 19-2065
UNITED STATES OF AMERICA,
Appellee,
v.
ALEXANDER GREAUX-GOMEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Lynch and Kayatta, Circuit Judges,
and Laplante,* District Judge.
Victor A. Ramos-Rodriguez, Johnny Rivera-Gonzalez, and
Wilfredo Diaz-Narvaez, on brief, for appellant.
W. Stephen Muldrow, United States Attorney, Mariana E. Bauza-
Almonte, Assistant United States Attorney, Chief, Appellate
Division, and Julia M. Meconiates, Assistant United States
Attorney, on brief, for appellee.
* Of the District of New Hampshire, sitting by designation.
October 27, 2022
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LAPLANTE, District Judge. Following lengthy pre-trial
litigation, including motions to suppress and dismiss, a jury
convicted Alexander Greaux-Gomez of enticement of a 15-year-old
minor for unlawful sexual activity in violation of 18 U.S.C.
§ 2422(b) and transportation of a minor to engage in criminal
sexual activity in violation of 18 U.S.C. § 2423(a). Additional
post-verdict litigation ensued, which the district court resolved
in the government's favor. Greaux appeals, asserting numerous
challenges to the criminal judgment, mostly related to the district
court's evidentiary rulings and the sufficiency of the evidence
supporting his conviction. Finding no merit to Greaux's
challenges, we affirm. In doing so, we hold that a defendant could
be found to persuade, entice, or induce a victim in violation of
Section 2422 notwithstanding purported evidence that the victim
agreed to engage in sexual activity.
I. Background
"We typically recite those facts relevant to sufficiency
claims and challenges to a denial of a motion to suppress in the
light most favorable to the verdict or to the district court's
ruling." United States v. Burgos-Montes, 786 F.3d 92, 99 (1st
Cir. 2015). "For other issues, such as claims of prejudicial
error, we offer a balanced treatment, in which we objectively view
the evidence of record." Id. (quotations and citation omitted).
Because "we cannot simultaneously recite the facts in both manners,
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we limit our initial summary . . . to those details essential to
framing the issues on appeal," id., and "describe other facts,
where necessary, in the appropriate discussions of [Greaux's]
challenges." United States v. Brown, 945 F.3d 597, 599 n.1 (1st
Cir. 2019).
In 2016, Greaux was a 39-year-old teacher and athletic
coach at the Albergue Olímpico ("Albergue"), a school in Salinas,
Puerto Rico that specializes in sports education. Greaux met the
victim, JFR,1 while she was a student at the Albergue.2 When JFR
was 15 and in tenth grade, Greaux was her track-and-field coach
and teacher. Their relationship became more personal, and later,
sexual, and Greaux abused his position of authority to entice JFR
for unlawful sexual activity. Greaux eventually had oral and
vaginal sex with JFR, who at 15 was too young to legally consent,
at the school, in his vehicle, and in a vacant home in Cayey,
Puerto Rico that Greaux had used as a homeschool. To get to the
vacant homeschool in Cayey, JFR would arrange for her mother to
drop her off at a supermarket in Cayey, and then Greaux would pick
her up and take her to the home. The victim's mother did not know
1 Although she was 18 at the time of trial, we refer to the
victim by her initials, JFR.
2 Students reside on the Albergue campus during the week, but
they can return home on the weekends. JFR lived in Cidra, Puerto
Rico during her sophomore year at Albergue.
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Greaux was picking JFR up from the supermarket and instead believed
that she was 'going to train.'
JFR also communicated with Greaux via cellular phone
using the messaging application WhatsApp. Using WhatsApp, the two
exchanged sexual messages, and Greaux asked JFR to send him
photographs of a sexual nature, which she did on several occasions.
Greaux also used code words in his messages to describe his sexual
desires or to arrange for a location to meet JFR to have sex.
The victim's mother discovered that JFR was exchanging
sexual messages and images with Greaux and confiscated her phone.
The victim's mother then brought the phone to the U.S. Department
of Homeland Security Investigations office ("HSI") in December
2016. HSI agents determined that the number JFR was messaging
with belonged to Greaux and obtained a warrant to search and seize
his phone.
While executing the search warrant in January 2017,
agents encountered Greaux outside of his residence. After
confirming his identity, agents showed Greaux the warrant,
explained why they were there, and asked if he would agree to
answer some questions, to which Greaux replied "yes." Agents then
instructed Greaux to get inside their vehicle. Once inside the
vehicle, agents had Greaux review the warrant and explained that
he was not under arrest. They also verbally provided Greaux his
Miranda warnings and presented him with a written Miranda
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acknowledgment and waiver form, which Greaux signed. See Miranda
v. Arizona, 384 U.S. 436 (1966) (holding that statements made
during custodial interrogation are not admissible into evidence
unless certain warnings are given).
Agents then began questioning Greaux. During
questioning, Greaux made several incriminating admissions. Agents
also seized Greaux's cell phone during the search. Forensic
evaluations of both JFR's and Greaux's phones revealed some of
their WhatsApp messages and various photographs of a sexual nature,
including a photograph of JFR in her bra and underwear and
photographs of JFR's vagina.
A grand jury charged Greaux with production of child
pornography, 18 U.S.C. § 2251, enticement of a minor for unlawful
sexual activity, 18 U.S.C. § 2422(b), and transportation of a minor
to engage in criminal sexual activity, 18 U.S.C. § 2423(a). After
a two-day trial, the jury acquitted Greaux on the production of
child pornography charge, but convicted him on the enticement and
transportation charges. The district court sentenced Greaux to
240 months' imprisonment, followed by fifteen years of supervised
release.
II. Analysis
Greaux appeals the district court's suppression ruling,
argues that there was insufficient evidence for the jury to convict
him on the enticement and transportation charges, and contends
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that the district court committed the following errors, the
cumulative effect of which entitle him to a new trial: (1) its
decision to exclude evidence of a prior criminal proceeding
involving JFR and a different adult male; (2) its decision to
exclude other allegedly exculpatory evidence; (3) its allowance of
leading questions during JFR's direct examination; (4) its
acceptance of a material, prejudicial variance between the facts
alleged in the indictment and those proven at trial; and (5) its
admission of one of the prosecution's exhibits. We consider and
reject each challenge in turn, beginning with the suppression
issue.
1. Suppression
Greaux moved to suppress the inculpatory statements he
made to law enforcement officers during their execution of the
warrant for his phone, arguing that they were the product of an
invalid Miranda waiver and coercive custodial interrogation.
After an evidentiary hearing at which two officers and Greaux
testified, the district court denied the motion.
"When reviewing a district court's decision on a motion
to suppress, we consider its 'conclusions of law de novo and its
factual findings, including its credibility determinations, for
clear error.'" United States v. Melo, 954 F.3d 334, 339 (1st Cir.
2020) (quoting United States v. De La Cruz, 835 F.3d 1, 5 (1st
Cir. 2016)). "In the Miranda context especially, we are reluctant
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to disturb the district court's suppression decision," and we will
affirm that decision so long as "any reasonable view of the
evidence supports" it. Melo, 954 F.3d at 339 (quoting United
States v. Boskic, 545 F.3d 69, 77 (1st Cir. 2008)).
Greaux argued that he was in custody when three armed
officers questioned him for nearly 30 minutes in the back of an
unmarked government vehicle. The evidence reasonably supports the
district court's conclusion3 that he was not "in custody" for
Miranda purposes when he was questioned. Even if agents subjected
Greaux to a custodial interrogation, however, the district court's
factual findings, including its decision to credit most of the
agents' testimony over Greaux's, were not clearly erroneous and
plainly show that: (1) agents advised Greaux of his Fifth Amendment
rights against self-incrimination and provided him the requisite
Miranda warnings; (2) Greaux understood and knowingly and
voluntarily waived those rights, both in writing and through his
conduct; and (3) the agents did not engage in coercive official
tactics, as claimed by Greaux, and thus, Greaux was not pressured
or intimidated into waiving his rights against self-incrimination
or making incriminating statements during the interview. See
3 The district court's suppression decision consisted of
Magistrate Judge Lopez's thorough and well-reasoned report and
recommendation, Judge Besosa's order adopting the report and
recommendation over Greaux's objections, and Judge Besosa's denial
of Greaux's motion for reconsideration.
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United States v. Simpkins, 978 F.3d 1, 11 (1st Cir. 2020) ("[T]he
relevant question is not whether the defendant explicitly waived
his Miranda rights but, rather, whether the defendant's conduct,
evaluated in light of all the attendant circumstances, evinced a
knowing and voluntary waiver." (citing United States v.
Carpentino, 948 F.3d 10, 26 (1st Cir. 2020))).
We need not dwell on this issue. "[W]hen lower courts
have supportably found the facts, applied the appropriate legal
standards, articulated their reasoning clearly, and reached a
correct result, a reviewing court ought not to write at length
merely to hear its own words resonate." United States v. Wetmore,
812 F.3d 245, 248 (1st Cir. 2016) (quoting DeBenedictis v. Brady-
Zell (In re Brady-Zell), 756 F.3d 69, 71 (1st Cir. 2014)). So it
is here. We nevertheless offer two additional observations.
First, the balance of factors used to determine whether
a person was in custody for Miranda purposes clearly favored the
prosecution here. See United States v. Crooker, 688 F.3d 1, 11
(1st Cir. 2012) ("To determine whether a person was in custody for
Miranda purposes," the district court looks to the surrounding
circumstances and several factors, including "where the
questioning occurred, the number of officers, the degree of
physical restraint, and the duration and character of the
interrogation." (quoting United States v. Guerrier, 669 F.3d 1, 6
(1st Cir. 2011))). Agents never handcuffed, physically
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restrained, or even touched Greaux, and they told him he was not
under arrest. Further, Greaux was not arrested after the
interview. While the interview took place inside an unmarked
government vehicle, it occurred on a public street in front of
Greaux's home, lasted a relatively short amount of time (just over
30 minutes), and none of the three interviewing officers (who were
not in full police uniform) brandished their weapons or otherwise
intimidated, badgered, or menaced Greaux in any way.4 See
Guerrier, 669 F.3d at 6 (finding no custody where interview
atmosphere was "relatively calm and nonthreatening" and interview
lasted approximately 20–25 minutes, "a relatively short time");
United States v. Hughes, 640 F.3d 428, 436-37 (1st Cir. 2011)
(finding no custody where four officers did not physically restrain
the defendant, there was no show of force, and the interview lasted
90 minutes (which we deemed a "relatively short duration")); United
States v. Nishnianidze, 342 F.3d 6, 12, 14 (1st Cir. 2003) (deeming
interrogation conducted by three officers non-custodial). The
district court correctly determined that Greaux was not in custody.
4 One of the agents admitted that he often spoke in a loud
tone of voice and told Greaux in that tone that the agents knew he
was lying. Greaux characterized the agent's tone as "annoyed."
The district court correctly distinguished an officer's loud or
annoyed demeanor from threatening or menacing conduct, and
correctly found the former to not be coercive in light of the
surrounding circumstances, which did not amount to a custodial
setting.
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Second, Greaux's suppression motion turned on several
credibility determinations, and we reiterate that "we will not
second-guess [the district court's] decision to credit [the
agents'] testimony as [more] credible [than Greaux's] after it
heard all the testimony and observed all of the witnesses'
demeanors firsthand." United States v. Guzmán-Batista, 783 F.3d
930, 938 (1st Cir. 2015).
2. Sufficiency of the Evidence
"We review the district court's denial of the
defendant's motion for judgment of acquittal de novo." United
States v. Oliver, 19 F.4th 512, 516 (1st Cir. 2021). In the
process, "we scrutinize the evidence in the light most hospitable
to the jury's verdict, draw all reasonable inferences to the
government's benefit, 'and ask whether a rational jury could find
that the government proved all the elements of the offense[s]
beyond a reasonable doubt.'" Id. (quoting United States v.
Fuentes-Lopez, 994 F.3d 66, 71 (1st Cir. 2021)). We will uphold
a conviction if the "verdict finds support in a plausible rendition
of the record." Id.There was a mountain of trial evidence to convict Greaux
on the enticement and transportation charges. The victim's
testimony, the "WhatsApp" messages, and Greaux's admission that he
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knew JFR was 15 at the time he had sex with her,5 all supported
the jury's finding that Greaux used a means of interstate commerce
(WhatsApp) to knowingly persuade, induce, or entice the minor
victim to engage in criminal sexual activity. See P.R. Laws Ann.
tit. 33, § 5191(a) (criminalizing sex with a person under the age
of 16).6
Greaux's arguments as to the dates that certain
photographs were created or JFR's alleged initiation of certain
communications fail. Even if JFR appeared to initiate some message
exchanges, Greaux initiated others. Indeed, the trial evidence
showed that Greaux groomed JFR, his minor student and mentee,
exploiting his position of authority to gain her trust before he
sought an impermissible sexual relationship with her. Once he
gained that trust, Greaux used WhatsApp to express his sexual
desires7 to JFR and to arrange for a meeting place for them to have
5 Greaux admitted during his interview with agents that he
was JFR's teacher and mentor and understood he was committing a
crime by having sexual relations with a minor. He also detailed
the nature of his oral and vaginal sex with JFR, and, when
confronted with screenshots of his WhatsApp messages with JFR,
Greaux explained that he used coded words to describe sexual
content and his sexual desires toward JFR, and explained another
message as him wanting to go to JFR's hometown of Cidra to pick
her up to engage in sexual intercourse.
6Greaux does not dispute that WhatsApp constitutes a facility
or means of interstate commerce for purposes of the enticement
statute.
7 A rational jury could have found that Greaux both explicitly
and implicitly (by using code words for certain sex acts he wished
to engage in with JFR) enticed, induced, coerced, or persuaded JFR
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sex. He also used WhatsApp to request and receive sexual images
from her. "[W]hen a defendant initiates conversation with a minor,
describes the sexual acts that he would like to perform on the
minor, and proposes a rendezvous to perform those acts, he has
crossed the line toward persuading, inducing, enticing, or
coercing a minor to engage in unlawful sexual activity." Montijo-
Maysonet, 974 F.3d at 41-42 (quoting United States v. Goetzke, 494
F.3d 1231, 1237 (9th Cir. 2007)). That is precisely what the trial
evidence showed here.
Moreover, Greaux’s contention that JFR allegedly agreed
to have sex – a finding we do not make – does not mean Greaux did
not persuade, entice, or induce her. We now join other circuits
in holding that such evidence, if it existed, does not change the
analysis; a defendant could be found to persuade, entice, or induce
a victim in violation of Section 2422 notwithstanding purported
evidence that the victim agreed to engage in sexual activity. See,
e.g., United States v. York, 48 F.4th 494, 500 (7th Cir. 2022)
("[W]e decline to apply a rule that a defendant can possess the
intent to 'persuade, induce, entice, or coerce' only if a defendant
to have sex with him. We have found that Congress "meant to cast
a broad net . . . to catch predators who use the Internet to lure
children into sexual encounters" by using verbs that "plainly reach
implicit coaxing or encouragement designed to 'achieve . . . the
minor's assent' to unlawful sex." United States v. Montijo-
Maysonet, 974 F.3d 34, 42 (1st Cir. 2020) (quoting United States
v. Dwinells, 508 F.3d 63, 71 (1st Cir. 2007)).
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manages to induce an unwilling minor to engage in sexual activity.
. . . The focus is therefore on the defendant, not the victim.");
United States v. Zupnik, 989 F.3d 649, 654 (8th Cir. 2021) ("Our
precedent makes clear that a defendant can be found to 'persuade'
or 'entice' even a seemingly 'willing' minor."); United States v.
Peterson, 977 F.3d 381, 389–90 (5th Cir. 2020) (rejecting argument
that the government must show that the minor was "unwilling" until
the defendant's actions persuaded the minor to engage in sexual
activity); United States v. Dhingra, 371 F.3d 557, 568 (9th Cir.
2004) ("So long as a defendant's actions constitute the act of
persuading, inducing, enticing, or coercing a minor to engage in
criminal sexual activity, § 2422(b) applies" so as not to
"mistakenly change[] the focus from the defendant to the victim").
Additionally, because Puerto Rico's age of consent is 16
years old, JFR could not legally consent to have sex with Greaux.
See P.R. Laws Ann. tit. 33, § 5191(a).
Ample trial evidence also supports Greaux's
transportation conviction. To satisfy this charge, the government
was required to show that Greaux transported a minor within Puerto
Rico with the intent to have sex. See Montijo-Maysonet, 974 F.3d
at 44 ("Puerto Rico is a 'commonwealth' within the meaning of the
[transportation statute]."). JFR testified that Greaux drove her
in his vehicle to his vacant homeschool in Cayey, where they would
have sex. She further testified that she had sex with Greaux at
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the Albergue school and in Greaux's vehicle. Greaux's sufficiency
challenges to his transportation and enticement convictions
accordingly fail.
3. Appellant's Other Challenges
Greaux also argues that the district court made five
additional errors, the cumulative effect of which deprived him of
a fair trial and prevented him from mounting a full defense.
Greaux failed to preserve several of these claims of error. We
review preserved challenges to evidentiary rulings for abuse of
discretion. See United States v. Veloz, 948 F.3d 418, 431 (1st
Cir. 2020). We review unpreserved challenges for "plain error
only." United States v. Etienne, 772 F.3d 907, 913 (1st Cir.
2014). "We reverse only sparingly in the plain error context,"
and to prove plain error, Greaux "bears the heavy burden of
demonstrating (1) that an error occurred, (2) which was plain or
obvious, (3) affected his substantial rights, and (4) 'seriously
affect[ed] the fairness, integrity, or public reputation of
judicial proceedings.'" Id. (quoting United States v. Whitney,
524 F.3d 134, 139-40 (1st Cir. 2008)). We address each alleged
error, in no particular order of importance.
Exclusion of Prior Proceeding Involving JFR. Greaux
first argues that the trial court abused its discretion by
excluding, in limine, evidence regarding an earlier criminal
proceeding involving a different coach and JFR. The court did not
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abuse its discretion, and properly excluded the evidence under
Rule 412 of the Federal Rules of Evidence because Greaux was
attempting to introduce it to prove JFR's sexual predisposition.
See Fed. R. Evid. 412(a)(1), (2) (prohibiting this type of evidence
for these very uses).
Greaux nevertheless argues for the first time on appeal
that the exception to Rule 412 allowing admission where "exclusion
would violate the defendant's constitutional rights" applies here
because he needed the evidence to show the victim's motive and
attack her credibility. Greaux fails to articulate why JFR's
status as a victim of sexual assault by a different perpetrator
has any bearing on her motives in the present case, to the extent
those motives are even a relevant consideration for the jury. For
example, Greaux does not allege that JFR falsely accused her prior
perpetrator. In fact, that individual was convicted.
Nor has Greaux shown that the prior proceeding bears on
JFR's credibility. See United States v. Roy, 781 F.3d 416, 421
(8th Cir. 2015) (noting that "our court has declared, 'unchastity
of a victim has no relevance whatsoever to [the victim's]
credibility as a witness'" and that evidence of prior sex acts
have "little impeachment value because it does not contradict [the
victim's] testimony about [the defendant]" (quoting United States
v. Elbert, 561 F.3d 771, 777 (8th Cir. 2009))). His newly raised
theories as to the alleged admissibility of this evidence are
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therefore speculative and legally unsupportable.8
Assuming this evidence held some impeachment relevance,
any probative value of the evidence was substantially outweighed
by the danger of unfair prejudice and inadmissible for that
additional reason. See United States v. Gemma, 818 F.3d 23, 34
(1st Cir. 2016) ("[E]ven if we were to accept [the defendant's]
contention that the evidence had some probative value with respect
to his relationship with [the victim], the balance of probative
and prejudicial effect is such that the court's decision [to
exclude the Rule 412 evidence] could hardly be said to have
violated his constitutional rights."); Elbert, 561 F.3d at 777(affirming trial court decision that defendant in sex trafficking
case could not impeach victims with prior instances of prostitution
because "[a]ssuming any impeachment relevance . . . in other acts
of prostitution, any probative value the evidence may have 'is
substantially outweighed by the danger of unfair prejudice'"
(quoting Fed. R. Evid. 403)). Indeed, such evidence "falls
squarely within a class deemed so extremely prejudicial as to
warrant special treatment under the Federal Rules of Evidence."
Gemma, 818 F.3d at 35.
8 As the government correctly points out, Greaux also failed
to follow the required procedure under Rule 412(c) for determining
the admissibility of such evidence. This failure alone is
"sufficient grounds to uphold the district court's decision" to
exclude the evidence. Roy, 781 F.3d at 421 (quoting United States
v. Eagle, 137 F.3d 1011, 1015 (8th Cir. 1998)).
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Finally, Greaux's complaints that the district court
improperly limited his ability to confront JFR ring especially
hollow considering that he chose not to cross-examine her during
trial. See Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per
curiam) (The Confrontation Clause guarantees only "an opportunity
for effective cross-examination, not cross-examination that is
effective in whatever way, and to whatever extent, the defense
might wish." (emphasis in original)). We therefore reject Greaux's
first claim of error.
Victim's Video Interview and Call Logs. Next, Greaux
contends that the trial court violated his Confrontation Clause
rights by denying his request to show a portion of a video-taped
interview of the victim as part of his defense case. Greaux is
incorrect. The trial court did not abuse its discretion in denying
the request for the following reasons.
The interview was conducted in Spanish. The Jones Act
therefore required Greaux to provide an accurate English-language
transcript of the interview to the jury. See 48 U.S.C. § 864 ("All
pleadings and proceedings in the United States District Court for
the District of Puerto Rico shall be conducted in the English
language."); United States v. Morales-Madera, 352 F.3d 1, 7 (1st
Cir. 2003) ("Providing an English-language transcript [of a
recording] is more than merely useful when the recorded language
is not English; for Jones Act purposes, it is necessary."). Greaux
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failed to follow this procedure and did not have an English-
language transcript of the interview ready for presentation during
the trial.9 See Morales-Madera, 352 F.3d at 8 ("Sound trial
management and considerations of fairness caution that" a party
provide English translations of recorded evidence to his opponent
"adequately in advance" of trial.).
Notwithstanding the lack of an English-language
translation, the trial court listened to the portions of the video
(outside the presence of the jury) that Greaux sought to introduce
and deemed them inadmissible. This too was a sustainable exercise
of discretion. Greaux sought to introduce portions of the
interview where JFR allegedly stated "that she was the one who
sent the pictures to Alex, that it was her idea to send the
photographs to Alexander Greaux," as this allegedly refuted "the
charge that [Greaux] persuaded her to send him the photographs."
As detailed above, however, the enticement charge turned on whether
Greaux persuaded JFR to have sex with him, not whether he persuaded
her to send sexually explicit photographs or whether she was an
allegedly "willing" participant. See York, 48 F.4th at 500 (noting
9Greaux did not request a delay in the trial. Instead, after
the jury rendered its verdict, Greaux moved to submit a certified
English-language translation of the video interview. Greaux's
counsel, however, represented to the district court that he first
received a copy of the original Spanish-language recording of the
interview the Thursday before trial began. Greaux therefore had
ample time prior to the start of trial to obtain a certified
English translation of the video interview.
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that the "focus [of an enticement charge] is therefore on the
defendant, not the victim"); see also Supra, § II, 2.10
Allegedly Prejudicial Leading of JFR. Third, Greaux
contends that the trial court impermissibly allowed the
prosecutors to lead the victim through her key testimony.11 We
acknowledge that the prosecutors at times used leading questions
with JFR and that such questions normally "should not be used on
direct examination except as necessary to develop the witness's
testimony." Fed. R. Evid. 611(c). We nevertheless find that the
trial court did not abuse its discretion in allowing such
questioning under these circumstances.
"We afford the district court 'extensive discretion over
the phrasing of questions,' because 'the trial judge is best
situated to strike a practical and fair balance.'" United States
v. Vázquez-Larrauri, 778 F.3d 276, 289 (1st Cir. 2015) (quoting
10 Greaux also contends that the district court erred in
refusing to admit logs of telephone calls between Greaux and JFR.
For similar reasons, the district court correctly excluded the
"call log" evidence. Greaux argues on appeal that these logs
"would have established that [JFR] was the one who initiated the
phone calls," but again, as discussed above, that fact, if true,
has no probative value to the enticement or transportation charges.
Greaux was also not prepared to authenticate the call logs, through
either a representative of the cellular phone companies or a
certified business record. See Fed. R. Evid. 902 (11), (13), (14).
11 Greaux raises a blanket challenge to the use of leading
questions, rather than attacking the allegedly improper questions
on a question-by-question basis. That makes our task of
determining whether the district court erred in allowing the
questions especially challenging.
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United States v. Hansen, 434 F.3d 92, 105 (1st Cir. 2006)). "[T]he
use of leading questions . . . must be left to the sound discretion
of the trial judge who sees the witness and can, therefore,
determine in the interest of truth and justice whether the
circumstances justify leading questions to be propounded to a
witness by the party producing him." United States v. Brown, 603
F.2d 1022, 1025-26 (1st Cir. 1979) (cleaned up).
It is readily apparent from the record that JFR became
uncomfortable answering the prosecutor's questions when the
questioning turned to the subject of her relationship with Greaux.
At that point, she struggled even further to answer or respond to
the questions. The court and prosecutor observed that she was
shaking uncontrollably and extremely nervous. At one point, she
asked for a break and had to consult with the victim witness
coordinator. The prosecutor also asked for the court's permission
to have the coordinator sit near, but not next to, JFR while she
testified. The trial court appeared to grant that request and
allowed some leading questions interposed with other non-leading
questions.12
12It was in fact JFR, not the prosecutor, who introduced the
notion that her relationship with Greaux became "sexual." JFR
also answered "no" to some of the prosecutor's questions, forcing
the prosecutor to clarify or re-word her questions. This suggests
that the questioning did not "cross the fine line between
stimulating an accurate memory and implanting a false one."
Hansen, 434 F.3d at 105 (quotation marks omitted).
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The trial judge, who is in the best position to assess
JFR's capacity to testify, determined that some degree of leading
questioning was appropriate. We see no abuse of discretion in
that decision. See United States v. Cotto-Flores, 970 F.3d 17, 40
(1st Cir. 2020) ("[W]e weren't there to see the testimony unfold
live; unlike the trial judge, we didn't see [the] witnesses face-
to-face or appraise in person their demeanor and inflection. We
can't see the distress on someone's face, or hear the stress in
their voice, by reading their words in 12-point Courier New."
(citation and quotation marks omitted) (quoting United States v.
Pérez-Díaz, 848 F.3d 33, 38 (1st Cir. 2017))), cert. denied, 141
S. Ct. 1121 (2021).
While JFR was not an adverse party witness, she was a
"hostile" witness in the sense that she was averse to answering
certain questions due to her nervousness and discomfort testifying
in Greaux's presence. See Rodriguez v. Banco Cent. Corp., 990
F.2d 7, 12-13 (1st Cir. 1993) ("A 'hostile' witness, in the jargon
of evidence law, is not an adverse party but a witness who shows
himself or herself so adverse to answering questions whatever the
source of the antagonism, that leading questions may be used to
press the questions home."); see also Fed. R. Evid. 611(c)(2)
("Ordinarily, the court should allow leading questions . . . when
a party calls a hostile witness"). We do not suggest that JFR’s
nervousness and discomfort was antagonism, however, it was an
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impediment to her direct examination. The district court was well
within its discretion to allow the prosecutors to use leading
questions to "develop coherent testimony from [JFR]." Hansen, 434
F.3d at 105.
The fact that JFR was 18 at the time of trial, as Greaux
repeatedly points out, does not change our conclusion. The
government has a "compelling" interest in protecting "minor
victims of sex crimes from further trauma and embarrassment."
Cotto-Flores, 970 F.3d at 38 (quoting Maryland v. Craig, 497 U.S.
836, 852 (1990)). Such protection may include using some leading
questions to help victims (including those who recently turned 18)
maintain their composure and elicit information about the
underlying events while confronting their perpetrators. See Fed.
R. Evid. 611(a)(3) ("The court should exercise reasonable control
over the mode and order of examining witnesses and presenting
evidence so as to . . . protect witnesses from harassment or undue
embarrassment."); cf. United States v. Grassrope, 342 F.3d 866,
869 (8th Cir. 2003) ("It is not uncommon that the precise
physiological details of sexual assault must be elicited by focused
questioning.").
Lastly, to the extent the district court erred in
allowing leading questions (again, a finding we do not make), any
error was harmless because Greaux does not claim that the questions
"prompted inaccurate testimony" from JFR, nor does the record
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support such a claim. United States v. Rivera-Rodríguez, 617 F.3d
581, 594 (1st Cir. 2010).
Allegedly Prejudicial Variance. Next, Greaux argues
that there was a prejudicial variance between the indictment and
the evidence presented at trial on the transportation charge.
Because he did not properly raise this argument below, plain error
review applies. There was no error, let alone plain error. The
indictment referenced travel from Salinas to "a residence located
in Cidra" to engage in criminal sexual activity, while the trial
evidence showed travel within Cayey. The indictment, however,
also referenced offense conduct "in the District of Puerto Rico,
and elsewhere within the jurisdiction" of that district and was
thus broad enough to encompass the travel proven at trial. See
United States v. Escobar-de Jesus, 187 F.3d 148, 172 (1st Cir.
1999) (noting "our reluctance to characterize what happened
[there] as a variance at all, given the breadth of the indictment's
description of the physical location of the attempted importation"
as including, as here, "elsewhere and within the jurisdiction of
[the District of Puerto Rico]").
Moreover, to prove the transportation charge, the
prosecution only had to show travel within the Commonwealth of
Puerto Rico with the intent to engage in criminal sexual activity.
See Supra, § II, 2. Proving that Greaux traveled from Salinas to
Cidra, versus within Cayey, was thus not an essential element of
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the crime. See United States v. Ayala, 289 F.3d 16, 22 (1st Cir.
2002) ("A part of the indictment unnecessary to and independent of
the allegations of the offense proved may normally be treated as
a useless averment that may be ignored." (quoting United States v.
Miller, 471 U.S. 130, 136 (1985))). Similarly, Greaux's defense
was not where he traveled within Puerto Rico, but whether he
traveled with JFR at all and for what purpose, and was thus not
impeded by the alleged variance.13 See United States v. Seng Tan,
674 F.3d 103, 110 (1st Cir. 2012) (noting that a prejudicial
variance leaves the defendant "so in the dark about the charge
against h[im] that []he could not prepare a defense or plead double
jeopardy to stop a second prosecution for the same crime").
To the extent this could be considered a variance, it
was neither material nor prejudicial. See United States v.
Arcadipane, 41 F.3d 1, 6 (1st Cir. 1994) (noting that where an
indictment gives a defendant "particular notice of the events
charged, and the proof at trial centers on those events, minor
differences in the details of the facts charged, as contrasted to
those proved, are unlikely to be either material or prejudicial.");
13The district court did not include the specific towns or
regions within Puerto Rico in its final instructions to the jury,
noting only that "travel wholly within the Commonwealth of Puerto
Rico constitutes transportation within a commonwealth, territory,
or possession of the United States" for purposes of § 2423(a).
Greaux's counsel did not object to this instruction. Nor did
defense counsel raise the alleged variance in travel locations in
his closing argument.
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Escobar-de Jesus, 187 F.3d at 172 (finding no material or
prejudicial variance where, as here, the precise "location of the
attempted importation was not an element of the crime," both of
the towns were within the court's jurisdiction, and the defendant
could not show that the "indictment's allegations caused him to be
misinformed of the charges against him"). We accordingly reject
Greaux's fourth claim of error.
Admission of Trial Exhibit 5. Fifth and finally, Greaux
argues that the trial court erred by admitting the prosecution's
trial Exhibit 5. Exhibit 5 contained screen shots from JFR's
iPhone of WhatsApp messages between Greaux and JFR.14 Greaux
challenges the messages' authenticity for the first time on appeal,
contending that the messages show the cell phone provider as
"CLARO" and neither he nor the victim used that provider.15
Greaux agreed to Exhibit 5's admission at trial, so plain
error review applies (if waiver does not), and we find no error.
The government introduced the exhibit through the victim's mother,
who had discovered the messages on her daughter's phone. Defense
counsel did not cross-examine the mother about the exhibit or
14 Greaux's briefs also reference trial Exhibit 6 as
containing screenshots from his cell phone. Exhibit 6, however,
was an extraction report from Greaux's phone that did not contain
any screenshots. Greaux's challenge to the admission of
screenshots thus appears to be directed at Exhibit 5 only.
15 Because the screenshots were taken from JFR's phone, the
identity of Greaux's cell phone provider is irrelevant.
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messages. Importantly, Greaux did not introduce evidence to the
jury that showed JFR used a cell phone provider other than Claro.
The government also had two law enforcement agents
testify about Exhibit 5 and further authenticate its contents.
The agents – one of whom had performed an extraction of the
victim's phone to obtain the text messages – confirmed that Exhibit
5 contained messages they had extracted from the victim's phone.
See Fed. R. Evid. 901(b)(1). Defense counsel did not cross examine
the agents about Exhibit 5 or otherwise challenge the authenticity
or veracity of the messages themselves or the extraction reports.
Greaux's admissions and the victim's testimony also corroborated
the contents of the messages. The trial court therefore did not
err in admitting this evidence.
Because we find that the district court did not commit
any individual errors, we likewise find that there was no
cumulative error warranting a new trial or vacatur of Greaux's
conviction.
III. Conclusion
For the reasons stated above, the judgment of the
district court is affirmed.
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