United States v. Soler-Montalvo ( 2022 )

United States Court of Appeals
For the First Circuit
No. 20-1311
UNITED STATES OF AMERICA,
Appellee,
v.
RAFAEL SOLER-MONTALVO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, U.S. District Judge]
Before
Thompson and Howard, Circuit Judges,
and Woodcock,* District Judge.
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.
* Of the District of Maine, sitting by designation.
August 2, 2022
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
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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
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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
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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.
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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,
142 S. Ct. 1184 (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, 142 S. Ct. 184 (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).
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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)
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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
website designed specifically for adults, which required that the
poster affirm she is over the age of 18. He contends that there
were points in the conversation with Janis that showed that it was
a role-play, including Janis's supposed understanding of what a
"daddy relationship" entails. And he points to his "candid"
1 We note the circuits have divided concerning whether a
defendant must know the individual being persuaded, induced, or
enticed was a minor. See United States v. Montijo-Maysonet, 974
F.3d 34, 43 (1st Cir. 2020) (describing the split and collecting
cases). It does not appear that we have decided whether mistake
of age is an available defense to a prosecution under § 2422(b).
See id. But, in any event, the government itself conceded in the
district court that it had to prove that Soler believed Janis was
a minor. So we need not decide that question here.
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testimony in which he "categorically rejected" that he thought he
was doing anything but role-playing.
The problem with Soler's arguments, though, is that
there was plenty of other circumstantial evidence from which a
reasonable jury could have surmised that Soler believed he was
speaking with a minor. For example, in his messages with Janis,
Soler expressed surprise that someone so young posted on Craigslist
after Janis said she was 13. But Janis responded: "Ya so? Anyone
can[.]" And Soler agreed with her: "I realize that, they have no
way of knowing." Plus, Janis out and out told Soler that she was
13 years old. And though Soler replied with a snicker that he was
100 years old and later said that he thought Janis was "joking"
that she was 13, Soler continued the conversation after Janis
repeated that she was only 13. And she brought it up again, asking
Soler twice if he was "cool with [her] being 13," to which Soler
one time responded: "Why shouldn't I be? You sound very mature
[] and from your pic very nice also."
What's more, Janis sent two fake photographs of herself,
and those photos were quite clearly of an underage girl. See
United States v. Montijo-Maysonet, 974 F.3d 34, 44 (1st Cir. 2020)
(noting the jury could find that photographs depicted a minor).
Soler also reacted to the photographs, calling Janis "gorgeous"
and her (clearly underage) body "beautiful," later telling her
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that he was "admiring [her] sexyness [sic]," and even asking for
more photos on multiple occasions.
Additionally, the conversation between Soler and Janis
could also be viewed as reflecting Soler's belief that Janis was
young and sexually inexperienced. For example, Janis asked if sex
was "going to hurt[.]" Janis told Soler that she "d[oes]n[']t
really know much about sex" and that she worried that she "won[']t
be good at sex probably like older girls and [she] will feel
bad[.]" But Soler told her: "I won't let you feel you bad, your
[sic] so beautiful I will make you feel very good[.]" Janis also
expressed inexperience with condoms, oral sex, and lubricants, and
asked if certain things were "what girls do . . . . [l]ike older
girls?" Soler acknowledged Janis's lack of experience, too, asking
her if she had "ever hear[d] of doggy style" and telling her,
"[y]ou['ll] probably be nervous but I'll try to keep you calm and
happy[.]"
Soler also repeatedly expressed concern about getting
caught. He pressed again and again that everything should be kept
his and Janis's "secret," seeking assurances that she wouldn't
tattle. In arranging their meeting, Soler persistently worried
that Janis's cousin, who would have to drive Janis to the mall,
would not think anything amiss if Janis disappeared for a couple
of hours and cautioned Janis not to let anyone see her texting on
the day of the meet-up. He said it would be best if they could go
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to his home instead of a motel because "it's a lot safer here at
home. No nosey people around us." Later, he acknowledged it could
be "too risky" for them to go to the beach or a movie. And he
told Janis that once she got in the car she could "put the seat
back . . . [so] nobody can spot [her]." Soler contends that all
of this was part of the role-play. But given that the jurors knew
he was a retired detective, and just given the jurors' common
sense, see Montijo-Maysonet, 974 F.3d at 42 (noting "[j]urors don't
have to check 'common sense' or 'mature experiences' at the
courthouse door" (citation omitted)), they could have inferred
that Soler was saying all of this because he knew the risks
involved and needed to cover his tracks.2
Soler took even more steps that a jury could have seen
as beyond a simple role-play. Soler discussed with Janis using a
unique type of condom, which he said was only sold at a store
called "Condom World." So he told her he would call the store
near the mall where they were going to meet to see if they had any
in stock. And, in fact, Soler actually called that store like he
said he would. Soler also discussed a strawberry lubricant with
Janis, and he in fact had that same strawberry lubricant in his
2 Soler also testified that his risk concerns arose from his
fear that the person who he was communicating with, and who he
believed to be another adult, might release all of the personal
information Soler had shared and embarrass him. Again, as with
his role-play testimony, it was the jury's call on whether to
believe that explanation or not.
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home. The jury reasonably could have drawn the inference that
someone wouldn't have taken those steps had it been a mere role-
play.3
To be sure, Soler testified that he never believed Janis
was a minor, he was merely role-playing (though he never clearly
defined the contours of what role-playing involved for him, whether
it was merely cyber-based or possibly in-person). And, in
explaining why he assumed it was role-play, Soler testified about
3Soler's expert (who we'll get to in more detail later) told
the jury about so-called "de-masking" activities that occur from
role-playing online, in which one party tries to identify who the
other party they're talking to really is. So (Soler's argument
goes) he went to the meet-up to try to de-mask his conversation
partner, knowing full-well that a meet-up "most likely wasn't going
to happen." And, apparently trying to account for the real-life
steps Soler took here, his counsel seemed to insinuate at closing
argument that Soler might have left open the possibility that his
meet-up could end in a consensual sexual encounter, perhaps
continuing the role-play in-person, with that adult. Problem is,
Soler didn't testify that he was preparing for such a real-life
sexual encounter. Instead, Soler testified that he tried to meet
up merely because he "was extremely curious to whom [he] was
speaking." And he never testified that he intended to continue
his role-play fantasy in-person with another adult, instead
testifying only that "going to meet up and have sex" was one of
his undefined "fantasies" in the chat. Nor was Soler asked at
trial why he took these real-life steps. Moreover, Soler's expert
Dr. Kraft did not testify about de-masking habits leading to
consensual, in-person, role-playing sexual encounters. Dr. Kraft
testified only that de-masking, which "doesn't happen that often,"
usually leads to the two individuals "laugh[ing]" about the
fantasy, or is borne out of one party's "frustration" with people
misrepresenting themselves. Given Soler's and Dr. Kraft's
testimonies, the jury could have reasonably rejected Soler's
closing-argument insinuation that he was preparing for a
consensual adult sexual encounter with the steps he actually took
outside of the role-play chat.
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holes he saw in Janis's story that he said led him to believe she
was not actually the 13-year-old girl she claimed to be. Soler
noted that it made no sense that a girl that young would have been
on a three-to-four-week April school vacation, and that it was odd
that she was unfamiliar with the geography of Virginia even though
that's where she said she lived.
Ultimately though, it was up to the jury to decide
whether to credit Soler's testimony in the face of this ample
evidence questioning Soler's claimed belief that he was only role-
playing with a consenting adult. "[S]ifting through conflicting
testimony and determining where the truth lies is the sort of work
that falls squarely within the jury's province, not ours." Cruz-
Ramos, 987 F.3d at 38 (cleaned up) (quoting United States v.
Nascimento, 491 F.3d 25, 46 (1st Cir. 2007)). And the jury "was,
of course, free to reject [Soler's] defense" that "he had no
interest in actually having sex with [a] minor[], but was instead
engaging in a form of 'role playing.'" Berk, 652 F.3d at 140 n.8;
see also United States v. Gomez-Villamizar, 981 F.2d 621, 624 (1st
Cir. 1992) (noting the jury is not obligated to credit a
defendant's testimony that she didn't know there was cocaine in
the suitcase); United States v. Ocampo-Guarin, 968 F.2d 1406, 1410
(1st Cir. 1992).
Nor was the evidence, as Soler contends, in equipoise
concerning his guilt and innocence. It is true that we "must
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reverse a conviction on the grounds of evidentiary insufficiency
where an equal or nearly equal theory of guilt and a theory of
innocence is supported by the evidence viewed in the light most
favorable to the verdict." United States v. Rodríguez-Martinez,
778 F.3d 367, 373 (1st Cir. 2015) (quoting United States v.
Woodward, 149 F.3d 46, 57 (1st Cir. 1998)). But "this equal-
evidence rule takes hold only after [we] ha[ve] drawn all
reasonable inferences in favor of the verdict." United States v.
Simon, 12 F.4th 1, 32 (1st Cir. 2021) (emphasis in original)
(quoting Magraw v. Roden, 743 F.3d 1, 5 (1st Cir. 2014)), cert.
denied, 142 S. Ct. 2811, 142 S. Ct. 2812 (2022); see also
Rodríguez-Martinez, 778 F.3d at 373 (explaining the equipoise rule
comes into play where "[w]ithout additional circumstantial
evidence from which the jury could rationally infer that one was
more supportable than the other, . . . [the] evidence . . . permits
two equally plausible inferences"). Here, to find equipoise, we
would have to credit Soler's testimony inconsistent with the
verdict. That we cannot do, especially given the plentiful
evidence from which the jury could reasonably infer that Soler's
explanation was not credible.
The district court did not err in denying Soler's motion
for a judgment of acquittal.
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II. Exclusion of Dr. Kraft's Testimony
Soler contends the district court erroneously excluded
part of the testimony of his proposed expert, Dr. Chris Kraft. He
accordingly demands a new trial.
Dr. Kraft, who holds a Ph.D. in clinical psychology, is
a Board-certified psychologist working at the Johns Hopkins
University specializing in internet sexual behaviors. Before
trial, Soler proffered Dr. Kraft to opine on two subjects. First,
Dr. Kraft would (and ultimately did) testify on the psychology
behind internet communication and messaging, and specifically the
frequency of role-play, imagination, or exaggeration in online
messaging. Second (and this one is important for us here), Soler
wanted him to testify about "the difference between a desire to
actually engage in sexual activity with a minor and mere fantasy
and role-playing related to sexual contact with children." As
part of that category of testimony, Soler proffered that Dr. Kraft
would testify that "the chats here . . . may be consistent with
the conduct and behavior of consenting adults using forums for
fun, play, fantasy and cybersex," but they are not consistent with
the patterns of child sexual predators.
A. Preservation
On appeal, Soler complains that the district court,
siding with the government's pre-trial motion, precluded Dr. Kraft
from testifying on the second subject, the modus operandi of
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predators and how his behavior differed. But the government throws
in a new appellate wrinkle: It now says that Dr. Kraft's testimony
was not at all limited by the district court as Soler claims, and
since no such limitation was imposed upon him, the government
declines on appeal to speculatively respond as to why Soler chose
not to probe the issue at trial.
To evaluate the government's claim, a brief (but
detailed) procedural recap is in order so the reader can follow
our analysis that is to come. Initially, the district court
granted the government's request to exclude Dr. Kraft's testimony
in its entirety. In a six-sentence order, the court explained
that Dr. Kraft's testimony "ultimately . . . involves the
defendant's state of mind." As the court understood the proffer,
"Dr. Kraft . . . would review the evidence and conclude that the
same is probative of a desire to engage in fantasy role playing
with children rather than in actual sexual contact," further
opining that Soler "is not a typical internet sexual predator . . .
[and] possesses none of the characteristics of one." Thus, the
district court said, the testimony was not proper.
Unhappy, Soler moved for reconsideration of that ruling.
In his motion, Soler explained that the district court did not
recognize the two distinct areas of Dr. Kraft's proposed testimony:
(1) testimony concerning "psychology of the internet, internet
messaging, fantasy[,] and role-play"; and (2) testimony about the
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patterns of sexual predators and analysis that Soler's actions
here do not line up with those patterns.
Denying the motion for reconsideration, the court
stated: "The Court notes that in the Joseph case from the Second
Circuit, defendant himself testified and that the excluded
evidence would have been relevant to defendant's credibility.
Here, the proffered evidence seeks to be presented in a vacu[u]m
and not in addition to any other evidence." But less than two
hours later the district court walked things back. It amended its
reconsideration order to add that "[s]hould [Soler] testify at
trial, following said testimony the Court will allow the testimony
of Dr. Kraft. See US v Joseph, 542 F3d 13, 21 (2nd Cir. 2008)."
Finally, when the time came for Dr. Kraft to testify at
trial, the district court added another note: "[Y]ou have to
remember the expert is just going to testify in general terms.
He's not going to testify -- he hasn't interviewed him [meaning
Soler], he hasn't -- he's not going to come to a conclusion about
him. He can't talk about him."
Staring at these four terse, quite ambiguous orders,
we're left to piece together whether the district court's rulings
meant that Dr. Kraft could not testify about the patterns of sexual
predators (i.e., the typical-predator testimony) and/or how
Soler's actions did not fit those patterns (i.e., the not-a-
typical-predator testimony). Reviewing the record, we think Soler
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was correct to understand the court's orders as precluding Dr.
Kraft from offering his not-a-typical-predator testimony.4
First, we think the district court's mid-trial
qualification made clear that it was, in fact, limiting Dr. Kraft's
ability to testify concerning Soler's actions in this case.5
Contrary to the government's appellate position, Soler did not
have free rein from the district court.6 And the government does
4 At oral argument, Soler was not clear whether he believed
he was also precluded from introducing Dr. Kraft's opinion on the
general pattern of sexual predators, separate from his analysis of
how that pattern lined up with the facts here. His appellate
briefing seems to make clear that he treated the typical-predator
testimony and not-a-typical-predator testimony as one cohesive
unit, such that he would not introduce one segment without the
other. And his post-trial briefing did not suggest that he thought
the typical-predator portion of the testimony was precluded --
only the not-a-typical-predator portion. We thus do not understand
Soler to argue that he was precluded from introducing the limited
segment of the testimony concerning the general pattern of sexual
predators. Yet it was completely reasonable for Soler to treat
Dr. Kraft's testimony as one integrated unit composed of both the
typical-predator profile and the not-a-typical-predator analysis.
The two were inextricably intertwined, and offering only the
profile of an online predator, without the ability to demonstrate
why he didn't fit that profile, would have been extremely
prejudicial to Soler.
5 The government, in its brief, fails to recognize that the
district court ordered mid-trial that Dr. Kraft "can't talk about
[Soler]." Instead, it claims that the district court's "final
word" on the scope of Dr. Kraft's testimony was the amended order
on the reconsideration motion, even though Soler's post-trial
briefing pointed specifically to -- and quoted directly from --
the court's mid-trial order on the subject.
6 The district court's citation to Joseph also further
suggests that it "w[ould] allow the testimony of Dr. Kraft" only
on the first category of evidence: the psychology of internet
fantasy and role-playing. Indeed, Joseph involved only expert
evidence of that category. See 542 F.3d at 21–22. It did not
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not explain how Soler could have, consistent with that mid-trial
order, elicited testimony about how his actions did not fit a
predator's m.o. if Dr. Kraft had to "testify in general terms" and
"[could]n't talk about [Soler]." Testifying about Soler's actions
would, of course, have violated that limitation.
Second, the only apparent confusion about whether the
not-a-typical-predator testimony was excluded has come from the
government's appellate counsel. Indeed, the government's trial
counsel below agreed in its briefing on Soler's new-trial motion
that the district court had excluded Dr. Kraft's testimony
concerning whether Soler's actions fit the pattern of an internet
predator. As the government put it below: "[T]he Court properly
determined that the proposed testimony was irrelevant and, even if
relevant, it should be excluded." That was so, said the
government, because "Dr. Kraft never evaluated, examined, or
treated Soler so he could not . . . try to draw a comparison [from
Soler] to other types of sexual predators he may have treated or
studied."
involve proposed expert testimony concerning the patterns of
sexual predators or whether the defendant in that case's actions
fit the bill of a typical predator. See id. If the district
court's re-reconsideration order was meant to swing open the door
to expert testimony concerning how Soler's actions lined up with
those typically expected of a predator, then Joseph would be an
odd citation.
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To tie a bow on it, the district court, post-trial,
agreed with everyone's understanding of its orders. In denying
Soler's motion for a new trial, the district court explained:
"[T]he exclusion of part of Dr. Kraft's expert testimony was
warranted. It is undisputed that he did not evaluate, interview,
meet[,] nor treat [Soler]. . . . Thus, Dr. Kraft could not testify
as to [Soler]'s state of mind." In fact, prior to ruling on the
new-trial motion, the district court ordered Soler to identify
where in the record each of his new-trial arguments was preserved
by timely objection. Responding, Soler pointed to both the pre-
trial orders and the court's mid-trial can't-talk-about-him order,
after which the district court did not correct anyone's
understanding of those orders.7
7 At oral argument, the government argued that the district
court's in-trial statement was merely a "rehash" of the agreement
Soler made that he would not ask Dr. Kraft to testify directly
about his state of mind. But Soler thrice explained that he would
not ask Dr. Kraft to testify so directly, rather he would ask Dr.
Kraft to testify only as to a comparison of the activities here to
the modus operandi of sexual predators. Yet the district court's
post-trial ruling apparently concluded that the proffered
testimony, even considering that self-imposed limitation, would
still have violated Rule 704(b), and the court thus concluded it
did not err in imposing the limitation about which Soler
complained. That makes the government's reading highly
implausible. To buy it, we would have to assume that the district
court either ignored or repeatedly misunderstood Soler's
explanation -- and also the government's similar understanding --
that the issue presented was whether Dr. Kraft could testify as to
whether Soler's actions fit the pattern of a typical predator
without testifying directly about Soler's state of mind.
- 21 -
Given the parties' -- and the district court's -- clear
understanding below of what was and wasn't excluded, we conclude,
contrary to the government's contention here, that Soler is
correct: The district court precluded Dr. Kraft's proposed not-
a-typical-predator testimony. And so the evidentiary ruling is
properly before us.
B. Merits
We turn now to examining if the district court was
correct in barring Dr. Kraft from testifying about whether Soler's
actions fit the mold of a sexual predator. In excluding the
evidence, the district court appeared to base its decision on two
rules of evidence: Rule 704(b) and Rule 403. We take each in
turn.
As we do so, we bear in mind that evidentiary calls are
generally left to the district court's discretion. See Maldonado-
Peña, 4 F.4th at 37; United States v. Galíndez, 999 F.3d 60, 64
(1st Cir. 2021). Still, abuse-of-discretion review is not
toothless. Jodoin v. Toyota Motor Corp., 284 F.3d 272, 279 (1st
Cir. 2002). A district court abuses its discretion "when a
relevant factor deserving of significant weight is overlooked, or
when an improper factor is accorded significant weight, or when
the court considers the appropriate mix of factors, but commits a
palpable error of judgment in calibrating the decisional scales."
- 22 -
United States v. Taylor, 848 F.3d 476, 484 (1st Cir. 2017) (quoting
United States v. Jiménez, 419 F.3d 34, 43 (1st Cir. 2005)).
1. Rule 704(b)
Admission of expert testimony is governed by Federal
Rule of Evidence 702. See Montijo-Maysonet, 974 F.3d at 47. But
that's not the only hurdle expert testimony must clear. Expert
testimony is still subject to the rigors of other rules, including
in criminal cases Rule 704(b). That rule provides that "an expert
witness must not state an opinion about whether the defendant did
or did not have a mental state or condition that constitutes an
element of the crime charged or of a defense," since "[t]hose
matters are for the trier of fact alone." Fed. R. Evid. 704(b);
see United States v. Valle, 72 F.3d 210, 215 (1st Cir. 1995)
(recounting the history of Rule 704(b)).
Applying Rule 704(b), we have held time and again that
although "Rule 704(b) bars a witness from characterizing the
defendant's intent, . . . it 'does not . . . apply to predicate
facts from which a jury might infer such intent.'" United States
v. Henry, 848 F.3d 1, 11 (1st Cir. 2017) (quoting United States v.
Peña-Santo, 809 F.3d 686, 694 (1st Cir. 2015)); see Valle, 72 F.3d
at 216; United States v. Lamattina, 889 F.2d 1191, 1193-94 (1st
Cir. 1989).
Identifying where the line lies in the sand, we have
held that "a qualified expert does not violate Rule 704(b) by
- 23 -
expressing an opinion as to whether predicate facts are consistent
with drug distribution rather than mere possession." Henry, 848
F.3d at 11. Accordingly, expert testimony that "explained that
the quantity of crack found at the search site was consistent with
distribution, as opposed to personal use" in a case concerning
intent to distribute drugs did not violate Rule 704(b). Valle, 72
F.3d at 216. Nor did an expert's opinion that the drugs at issue
in a similar case were "packaged for sale" since "the expert
grounded his opinion that the drugs were packaged for sale on his
general knowledge of criminal practices and the circumstantial
evidence bearing on the issue of intent that was produced during
the trial." Henry, 848 F.3d at 11. Similarly, an expert's
testimony that "recorded conversations involved loansharking" did
not cross the line into testimony on the defendant's state of mind,
but rather only "may have provided the jury with some basis for an
inference as to defendant's state of mind." Lamattina, 889 F.2d
at 1194 (emphasis added). In sum, we have held repeatedly that
testimony that a defendant's actions are consistent with the modus
operandi of illegal activity, though allowing the jury to infer
the defendant's state of mind, does not violate Rule 704(b)'s
ultimate-issue prohibition.
Dr. Kraft's not-a-typical-predator testimony fits
comfortably within that rubric. Dr. Kraft would have compared the
conversations and surrounding circumstances of this case to the
- 24 -
patterns of online predators and identified inconsistencies, thus
suggesting that Soler's actions did not accord with those of a
typical predator. We see no distinction between that testimony
and a government-offered expert's testimony that the manner in
which drugs were packaged were consistent with the m.o. of drug
distributors where the issue was whether the defendant intended to
distribute drugs. See Henry, 848 F.3d at 11; Valle, 72 F.3d at
216. Nor is there any daylight between the testimony here and the
testimony in Lamattina concerning whether the recorded
conversations "involved loansharking" in a prosecution for
loansharking. 889 F.2d at 1194. The only difference is that the
testimony here was that Soler's actions were not consistent with
illegal activity.
In this precise scenario, one of our sister circuits has
drawn the same conclusion, just on the side of the government. In
United States v. Romero, 189 F.3d 576 (7th Cir. 1999), the Seventh
Circuit faced a defendant's challenge to a government-proffered
expert who testified that "hypothetical" facts mirroring the
defendant's actions were consistent with the patterns of child
molesters, id. at 585–86. The defendant there was charged with
various counts related to his transportation of a minor with the
intent to engage in criminal sexual activity. Id. at 581.
Objecting that the expert's analysis of the supposed hypotheticals
violated Rule 704(b), the defendant argued that the testimony was
- 25 -
tantamount to an opinion on his intent to molest the victim. Id.
at 586. The Seventh Circuit rejected that argument. Id. Relying
on case law in that circuit similar to ours in Henry and Valle
concerning drug distribution, the court said that the testimony
passed Rule 704(b) comfortably since the expert "never directly
opined as to [the defendant's] mental state." Id. Nor did his
explanation of "what types of actions might distinguish the actual
molester from the mere collector of child pornography" violate
Rule 704(b), even where the defendant admitted an interest in child
pornography but disclaimed any intent to act on that interest.
Id.; see id. at 582.
So too here. Dr. Kraft's not-a-typical-predator
testimony, as proffered by Soler, did not cross the line into the
territory of Rule 704(b). Rather, his testimony was limited only
to whether certain facts were consistent with the pattern typically
seen with individuals who were interested in having sex with
minors. Just as an expert may opine on whether the packaging of
drugs is consistent with distribution, Dr. Kraft could have
permissibly testified about whether Soler's actions here were
consistent with role-play rather than the pattern of those who
entice minors into sexual activity. The district court abused its
discretion in precluding this testimony under Rule 704(b).
- 26 -
2. Rule 403
The district court also appeared to conclude that Dr.
Kraft's not-a-typical-predator testimony should be excluded under
Rule 403, noting (without citing the rule) that "any probative
value of the [testimony] is substantially outweighed by confusion
of the issue at bar, to wit, [Soler]'s state of mind."8 Rule 403
allows a court to "exclude relevant evidence if its probative value
is substantially outweighed by," among other reasons, "a danger of
. . . unfair prejudice, confusing the issues, [or] misleading the
jury . . . ." Fed. R. Evid. 403.
Even though Dr. Kraft's testimony passed the strictures
of Rule 702's gatekeeping of expert evidence, it was still subject
to the Rule 403 balancing test. See United States v. Pires, 642
F.3d 1, 12 (1st Cir. 2011). As we have explained before, there is
a particular worry with expert testimony that "jurors may assign
more weight to [it] than it deserves." Id. Expert testimony "can
8The district court's reliance on Rule 403 is further muddled
by its subsequent orders on the issue. In denying Soler's motion
for reconsideration, it did cite Rule 403, but not for the same
reason it suggested in its initial order. Rather, the
reconsideration order spotted a risk of prejudice or confusion in
the fact that the evidence would be presented in a vacuum and not
to support the credibility of Soler's testimony, since Soler to
that point had not said that he planned to testify in his own
defense. Of course, Soler ultimately testified. And later on
when denying Soler's motion for a new trial, the district court
did not again recite its "substantially outweighed" language, but
merely said that Dr. Kraft's testimony would have offered an
opinion on Soler's state of mind, thus signaling reliance on Rule
704(b) -- not Rule 403.
- 27 -
carry with it an unwarranted 'aura of special reliability and
trustworthiness,'" id. (quoting United States v. Fosher, 590 F.2d
381, 383 (1st Cir. 1979)), so "courts must guard against letting
it intrude in areas that jurors, by dint of common experience, are
uniquely competent to judge without the aid of experts," id."Because of this risk, the judge in weighing possible prejudice
against probative force under Rule 403 . . . exercises more
control over experts than over lay witnesses." Daubert v. Merrell
Dow Pharms., Inc., 509 U.S. 579, 595 (1993) (quoting Jack B.
Weinstein, Rule 702 of the Federal Rules of Evidence Is Sound; It
Should Not Be Amended, 138 F.R.D. 631, 632 (1991)).
We review district courts' Rule 403 rulings under the
abuse-of-discretion framework detailed above, with a few
additional notes. We have said specifically to Rule 403 that
district courts have "wide discretion in steadying the . . .
seesaw." Pires, 642 F.3d at 12. Reflecting our deference for the
district court's battlefield judgment, it is only in the rarest
and most compelling cases that "'we, from the vista of a cold
appellate record,' [will] reject a judge's on-the-scene Rule 403
ruling." United States v. Rodríguez-Soler, 773 F.3d 289, 294 (1st
Cir. 2014) (quoting DiRico v. City of Quincy, 404 F.3d 464, 468
(1st Cir. 2005)).
Still, the standard for exclusion under Rule 403 is a
high one. See United States v. Fahey, 769 F.2d 829, 841 (1st Cir.
- 28 -
1985). When conducting the Rule 403 balancing test, courts must
heed that the default rule is that relevant evidence will be
admitted. See United States v. Jones, 689 F.3d 12, 19 (1st Cir.
2012). And it is not enough for Rule 403 that the evidence's
dangers of unfair prejudice or confusion somewhat outweigh the
probative value of the evidence. See United States v. Trenkler,
61 F.3d 45, 56 (1st Cir. 1995) (concluding prior-bad-acts evidence
was admissible under Rule 403 even though there was "some danger"
that the jury would use it to assume a defendant's propensity for
criminal behavior). Rule 403 permits exclusion not when the
evidence is merely outweighed by the dangers of its admission, but
only when it is "substantially outweighed." See Fed. R. Evid. 403
(emphasis added).
With that framework in mind, and mindful of our bounded
review, we think the district court -- to the extent it relied on
Rule 403 in excluding Dr. Kraft's testimony -- erred in determining
both the probative value of the evidence and, relatedly, that the
probative value was substantially outweighed by a risk of confusing
or misleading the jury.
Probative value. Dr. Kraft's not-a-typical-predator
testimony was highly relevant to and probative of the key issue in
the case. Soler's defense effectively revolved around his argument
that he was merely role-playing and did not actually believe Janis
was a minor. Dr. Kraft's excluded testimony bore directly on the
- 29 -
credibility of Soler's testimony concerning his state of mind and
sought to explain (just in the converse of oft-admitted government-
expert testimony) how seemingly sinister conduct could be part of
innocent sexual fantasy. Cf. United States v. Long, 328 F.3d 655,
666–68 (D.C. Cir. 2003) (finding government expert's child-
molester m.o. testimony probative under Rule 403 because it helped
show "how seemingly innocent conduct could be part of a seduction
technique" (cleaned up)).
The government's arguments made below (again, only below
because the government does not defend, even in the alternative,
the district court's exclusion on appeal since it thinks there was
no exclusion to begin with) do not demonstrate the testimony's
minimal probative value. First, although the jury may have been
familiar with "sexting" and sexual role-play fantasies, we find it
hard to believe that the jury would be familiar with prototypical
grooming behavior by an individual seeking out sex with minors and
thus how that behavior compared to Soler's.9
Second, we disagree that the testimony's relevance was
minimal because Soler "was not accused of being a pedophile or
child molester and he was not charged with possession of child
9 Nor do we have any information to confirm this speculation
about the jurors' knowledge of sexting, sexual roleplay, or
grooming behaviors. Although Soler proposed certain voir dire
questions that may have revealed some jurors' familiarity with
these concepts, the district court declined to ask those questions
at jury selection.
- 30 -
pornography." The government charged Soler with attempting to
entice a minor to engage in unlawful sexual activity. Testimony
that Soler's actions were inconsistent with the typical m.o. of
one attempting to entice a minor -- as opposed to engaging in role-
play with a consenting adult -- is highly relevant to that charge.
Moreover, Dr. Kraft was not proffered to testify as to whether
Soler was a pedophile or a child molester. He was proffered to
testify only as to whether Soler's actions were consistent with
patterns of known pedophiles or child molesters, similar to
testimony on whether a defendant's actions are consistent with the
patterns of other drug dealers in a case charging intentional
distribution of drugs.
The testimony was also relevant to respond to the
government's attempt to show that Soler acted like a typical
predator in an effort to demonstrate his knowledge. At trial, the
government elicited testimony from Agent Sieg about his use of
codewords in the Craigslist post.10 It then asked Agent Sieg:
"[I]n your experience, who are the people that generally use code
words[?]" To which Agent Sieg responded: "Well, anyone wanting
to keep something secret or their intentions masked." The
The codewords Agent Sieg referred to were "young," "thin,"
10
and "girls" in his initial email to Soler saying: "If you're into
young thin girls say hi." Sieg testified that he used those words
because they "are code words among those people who would seek to
engage in illegal sexual activity with minors."
- 31 -
government, of course, was trying to suggest that since Soler
responded to codewords like others who actually intended to keep
their intentions masked (which includes those who try to engage in
sex with minors), the jury should not buy Soler's feigned innocence
and role-play defense. Dr. Kraft's testimony would have done the
same thing, just delivering the opposite inference.
Thus, to the extent the district court found Dr. Kraft's
not-a-typical-predator testimony not probative, we believe it
erred. See Rubert-Torres ex rel. Cintron-Rupert v. Hosp. San
Pablo, Inc., 205 F.3d 472, 479 (1st Cir. 2000) (finding abuse of
discretion in assessment of probative value where we concluded the
evidence was "highly relevant" to a "central issue" in the case);
Espeaignnette v. Gene Tierney Co., 43 F.3d 1, 6 (1st Cir. 1994)
(similar). The testimony was, in fact, highly relevant to and
probative of the central issue in this case: Soler's belief that
Janis was a minor.11
11 Our decision in Pires is not to the contrary. There, a
defendant sought to introduce expert evidence that he did not have
any mental illnesses, sexual deviances, or a prurient interest in
children as evidence that he lacked a motive to possess child
pornography. 642 F.3d at 10. Yet we said that evidence was of
"diminished relevance" because the only question in that case was
whether the defendant knowingly received and possessed the child
pornography, not whether he received and possessed the images
related to a sexual interest in children. Id. at 10–12. Here,
though, Dr. Kraft's testimony was highly probative of whether
Soler's actions were consistent with role-playing or typical
grooming behavior. The evidence was thus not "peripheral" as it
was in Pires. See id. at 12.
- 32 -
Balancing act. Given the high probative value of the
evidence, we expect the countervailing interests weighing against
the admission to be great to exclude the evidence. "When proffered
evidence relates to the central issue in a case, it is a difficult
matter indeed to show that the prejudicial effect of that evidence
substantially outweighs its highly probative nature, as Rule 403
requires." Rubert-Torres, 205 F.3d at 479.
But the district court's reasoning, once corrected, is
not so weighty. Critically, the district court's assessment of
the danger of confusion was bound up in its erroneous analysis of
whether Dr. Kraft would opine on an ultimate issue in the case.
As the district court put it, "any probative value of the
[testimony] is substantially outweighed by confusion of the issue
at bar, to wit, [Soler]'s state of mind." Yet as we've explained,
Dr. Kraft's testimony would not opine on Soler's state of mind --
it would only offer evidence to the jury from which it could infer
that Soler did not believe Janis was 13 given that he did not
operate like a typical predator. Thus, we think the potential
danger of confusion posed by the testimony was substantially
limited when viewed in its proper light.12
12Nor were the district court's concerns about Dr. Kraft's
testimony being presented in an evidentiary "vacuum" still
relevant. At trial, Soler testified and spoke directly to his own
state of mind. As the district court admitted, Dr. Kraft's
testimony could be probative of whether Soler's testimony was
credible, if he chose to testify.
- 33 -
To be sure, we share the district court's concern that
expert testimony brushing up against -- but not directly touching
on -- the defendant's state of mind could weigh heavily on the
jurors' minds. We have often worried that jurors may be smitten
by an expert's "aura of special reliability and trustworthiness"
and therefore "assign more weight to expert testimony than it
deserves." E.g., Pires, 642 F.3d at 12.
Yet even recognizing that risk, there are "less
restrictive means to minimize the prejudice than entirely
excluding" testimony. Rubert-Torres, 205 F.3d at 479 ("Because
the Federal Rules of Evidence favor the admissibility of evidence,
less intrusive measures to minimizing the prejudicial effect of
evidence are preferred to excluding evidence."). For example, the
district court instructed the jury that it should not deem Dr.
Kraft credible merely because he is an expert. See United States
v. Encarnacion, 26 F.4th 490, 506 (1st Cir. 2022) (noting that
careful jury instructions on the weight to be given to an expert's
testimony help mitigate risks of unfair prejudice from the expert's
special stature). Rather, the district court told the jury that
credibility calls should be made the same way whether the jury was
judging Soler, Dr. Kraft, or Agent Sieg. The district court also
could have crafted a specific jury instruction that Dr. Kraft's
testimony should not be interpreted as an opinion on whether Soler
knew that Janis was a minor, thus blunting the potential danger.
- 34 -
See United States v. Morris, 576 F.3d 661, 676 (7th Cir. 2009)
(noting that limiting instructions, as well as careful
construction of the examinations, can help alleviate risks of
confusion from expert-criminal-m.o. testimony). And it could have
-- as it did on Dr. Kraft's first subject of testimony -- given
the government an adequate opportunity to cross-examine Dr.
Kraft's not-a-typical-predator testimony. See Encarnacion, 26
F.4th at 506.
* * *
Though the district court had "wide discretion in
steadying the Rule 403 seesaw," Pires, 642 F.3d at 12, it still
needed to explain why the highly probative value of the evidence
was so "substantially outweighed" by the risks of confusing or
misleading the jury that the testimony should have been excluded
wholesale, Fed. R. Evid. 403; see Rubert-Torres, 205 F.3d at 479.
And the need was more pronounced considering the court's allowance
of Agent Sieg's testimony about the use of codewords. The district
court failed to do so, thus creating the rare and most-compelling
case in which we conclude -- and do not do so lightly -- that the
district court abused its discretion in excluding this testimony
under Rule 403, too.
3. Harmlessness
Even if we find error in the district court's evidentiary
ruling, we must affirm if we find the error nonetheless harmless.
- 35 -
See Rodríguez-Soler, 773 F.3d at 297. Non-constitutional errors
in admitting or excluding evidence are harmless "unless the
evidence 'likely affected' the trial's outcome." United States v.
Correa-Osorio, 784 F.3d 11, 25 (1st Cir. 2015) (quoting United
States v. Landrón-Class, 696 F.3d 62, 71 (1st Cir. 2012)). Thus,
we will not reverse "if we can say with fair assurance, after
pondering all that happened without stripping the erroneous action
from the whole, that the errors did not substantially sway the
jury's verdict." United States v. Rivera-Carrasquillo, 933 F.3d
33, 46 (1st Cir. 2019) (cleaned up).
We're not so assured here. At the end of the day, the
key issue in this case was whether Soler believed that Janis was
13. And though there was substantial evidence from which the jury
could have concluded that he did, Soler's role-play defense turned
almost exclusively on the credibility of his testimony. Dr.
Kraft's not-a-typical-predator testimony could have provided
substantial support to Soler's credibility in claiming that he
truly believed Janis was just an assumed identity of another
consenting adult. Whether the jury ultimately buys that story is
for it to decide. But we could only speculate as to whether the
additional evidence could have swayed the jury's credibility
determination on that key element, leaving the error not
- 36 -
harmless.13 See Rubert-Torres, 205 F.3d at 480 ("On such a central
issue as causation, . . . it would be speculation at best, much
less with fair assurance, to say that the jury verdict was
unaffected by the error."); United States v. Ouimette, 753 F.2d
188, 193 (1st Cir. 1985) (error not harmless where the excluded
evidence went to "the core of the defendant's case"); see also
United States v. Kilmartin, 944 F.3d 315, 339 (1st Cir. 2019)
(finding erroneously admitted testimony not harmless to the jury's
assessment of the defendant's intent since "[i]ntent is inherently
difficult to demonstrate" and though there was ample
circumstantial evidence of intent, the defendant offered
alternative innocent explanations).14
CONCLUSION
For these reasons, we vacate the judgment of the district
court and remand for a new trial.
The government suggests that the testimony Dr. Kraft
13
actually gave was good enough since the "basic thrust" was to
suggest that some people merely role-play without acting on it.
Yet the government glosses over the difference between Dr. Kraft's
proposed role-play-based testimony and not-a-typical-predator-
based testimony, which were two distinct categories of testimony.
The latter builds implicitly on the first (i.e., there is a
difference between a true predator and a mere role-player), but
the government has not directed us to anywhere in the record that
Dr. Kraft actually testified that Soler's actions were
inconsistent with the modus operandi of child sex predators.
Given our conclusion, we need not address whether a new
14
trial is required because of alleged prosecutorial misconduct --
though we do caution the government to take greater care in its
in-court statements before the jury on remand.
- 37 -
- CONCURRING OPINION FOLLOWS -
- 38 -
WOODCOCK, District Judge, concurring. I write
separately because I am not convinced that the record establishes
that Soler properly preserved at the trial court the error he
presents here as required by Federal Rule of Evidence 103 or that
the district court ever excluded the expert's evidence about the
characteristics of sexual predators and their typical patterns of
behavior and use of the internet.
Although the district judge changed his mind about the
admissibility of Dr. Kraft's testimony in prior orders, his final
ruling just before trial was:
The order at Docket No. 95 is hereby amended
as follows. Should defendant testify at
trial, following said testimony the Court will
allow the testimony of Dr. Kraft. See US v
Joseph, 542 F3d 13, 21 (2nd Cir. 2008).
Nothing in this final order intimated that the defendant would not
have been allowed to present Dr. Kraft's full testimony as Soler
proposed it, including his testimony about sexual predators and
the internet. I am unable to conclude that the district judge
would have disallowed Dr. Kraft's testimony on sexual predation
because, following this order, Soler never moved its admission and
never received a definitive ruling against its admission.
Tracking the way this issue developed at trial, I see
the district judge's first concern turning on whether Dr. Kraft
would be allowed to testify if Soler did not take the stand, an
offshoot of the government's argument that Dr. Kraft's opinion
- 39 -
testimony should not be a backdoor way of admitting Soler's
testimony. In my view, the district judge was rightfully concerned
about the prospect of Dr. Kraft testifying about Soler and then
Soler declining to testify, leaving Dr. Kraft's testimony - to the
extent it relied upon Soler's testimony - being without foundation.
Once defense counsel informed the jury in the opening statement
that Soler intended to take the stand, the district judge's concern
on this point was alleviated, but the district judge still had the
obligation to enforce Federal Rule of Evidence 704(b), which
prohibited Dr. Kraft from expressing an opinion "about whether the
defendant did or did not have a mental state or condition that
constitutes an element of the crime charged or a defense." Fed.
R. Evid. 704(b).
I see Soler's argument that he preserved this
evidentiary issue by giving the prior Notice of Expert as falling
flat. It is true that a definitive ruling on a pretrial motion in
limine may preserve an objection to an evidentiary ruling without
requiring the party to renew the objection at trial. Fed. R. Evid.
103(b); United States v. Grullon, 996 F.3d 21, 30 (1st Cir. 2021);
Zachar v. Lee, 363 F.3d 70, 75 (1st Cir. 2004) ("The 2000 Amendment
to Federal Rule of Evidence 103 specifically provides that once
the district court 'makes a definitive ruling on the record
admitting . . . evidence, either at or before trial, a party need
not renew an objection . . . to preserve a claim of error for
- 40 -
appeal.'" (quoting Fed. R. Evid. 103(a)(2), now denominated as
Fed. R. Evid 103(b))). The problem here is that, as just noted,
the district judge's last ruling before trial allowed the expert's
testimony without qualification. As a result, in my view, the
defendant's motion in limine and Notice of Expert did not preserve
this issue on appeal because the district court's superseding
ruling allowed the expert's testimony to come in at trial (under
the condition that Soler testify, which he did).
It appears to me that the defense confused the district
judge's repeated rulings about Federal Rule of Evidence 704(b)
with a ruling excluding the expert's testimony on sexual predation.
The line between proper and improper expert testimony in this area
is subtle and it strikes me that the district judge's concern that
the expert not "talk about [Soler]" was a reminder that Rule 704(b)
prohibits an expert from expressing opinions about a defendant's
state of mind. My view is buttressed by the fact that the district
judge emphasized both during trial and in the post-trial order
that Dr. Kraft never interviewed Soler and therefore could not
testify about him.
To the extent that the defense was confused about the
district judge's rulings and the line between proper and improper
expert testimony, the burden was on defense counsel to obtain a
definitive ruling and, if the evidence were disallowed, to make an
offer of proof. Fed. R. Evid. 103(a)(2) ("[I]f the ruling excludes
- 41 -
evidence, a party informs the court of its substance by an offer
of proof, unless the substance was apparent from the context.");
see Kelley v. Airborne Freight Corp., 140 F.3d 335, 347 (1st Cir.
1998); Earle v. Benoit, 850 F.2d 836, 847 (1st Cir. 1988) ("[I]t
is precisely for such a situation, where a court refuses to receive
evidence and yet the same is needed to elucidate proponent's claim
for admissibility, that the offer of proof device exists.").
We do not know what would have happened at trial if
defense counsel had complied with Federal Rule of Evidence 103,
approached sidebar, cited United States v. Romero, 189 F.3d 576(7th Cir. 1999), and informed the judge that the defense would
like to explore Dr. Kraft's expert views about the significance of
already admitted evidence, namely the online chats, and to
elucidate Dr. Kraft's views of the hallmarks of an online predator,
such as the presence of collections of child pornography, the
grooming of children, and employment or activities that involve
children, and how those hallmarks compared to Soler's background
and behavior as already set forth on the record or to be supplied
by Soler's later testimony. The defense could have reminded the
judge that none of this proffered evidence would have suggested
what the defendant himself thought, only what Dr. Kraft in his
expert opinion would have expected to find in a case of online
sexual predation and that any opinion as to how Soler's behavior
compared with typical sexual predators was based on the evidence
- 42 -
presented at trial and not a clinical examination. If the defense
had done so, we would know for certain whether the trial judge
would have excluded all, part, or none of Dr. Kraft's proposed and
unpresented testimony. But we do not know how the district judge
would have ruled because, after the judge ruled all of Dr. Kraft's
testimony admissible, the district judge was never squarely asked
to make a definitive ruling excluding any portion of it.
Finally, my reading of the record is further supported
by the fact that on cross-examination of Dr. Kraft, the district
judge allowed the government, over the defense's objection, to
extensively discuss sexual predation. Even after the government
elicited this testimony, the defense made no effort to present Dr.
Kraft's sexual predation testimony on the ground that the
government had opened the door. Instead, the defense asked no
further questions of Dr. Kraft.
Before we assign error to a district court's evidentiary
ruling, we should be clear that the trial court actually excluded
the admissible evidence and typically the burden is on the losing
party to demonstrate that he clarified his objection and obtained
a definitive ruling excluding the evidence. See Grullon, 996 F.3d
at 30-31 ("[W]hen a judge issues a preliminary, conditional, or
'tentative' ruling that 'clearly invites the party to offer the
evidence at trial,' then the party has an obligation to raise it
again to preserve the claim." (quoting United States v. Almeida,
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748 F.3d 41, 50 (1st Cir. 2014)); United States v. Takesian, 945
F.3d 553, 562 (1st Cir. 2019) ("Rule 103 requires the objecting
party . . . 'to clarify whether an in limine or other evidentiary
ruling is definitive when there is doubt on that point.'" (quoting
Crowe v. Bolduc, 334 F.3d 124, 133 (1st Cir. 2003))).
Despite my reservations about whether the error was
preserved and whether the district judge committed any error, I am
concurring, not dissenting, because after the trial, the defendant
and the government both treated Dr. Kraft's evidence on sexual
predation as having been excluded. In its response to the
defendant's claim in his post-trial briefing that Dr. Kraft's
sexual predation testimony should not have been excluded, the
government did not claim that the district judge never excluded
it. To the contrary, in its post-trial memorandum, the government
argued:
Accordingly, the Court properly determined
that the proposed testimony was irrelevant
and, even if relevant, it should be excluded
because its probative value was far outweighed
by the potential for confusing and misleading
the jury, and unnecessarily protracting the
trial.
In contrast, the trial judge's post-trial ruling does
not appear to be based on the parties' mutual misunderstanding of
the basis for exclusion at trial:
[T]he exclusion of part of Dr. Kraft's expert
testimony was warranted. It is undisputed
that he did not evaluate, interview, meet nor
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treat defendant. He himself admitted this at
trial upon questioning by the Court. Thus,
Dr. Kraft could not testify as to defendant's
state of mind.
In my view, the parties' post-trial arguments and the
district judge's post-trial ruling pass like ships in the night.
The parties, including the government, claim that the trial court
excluded Dr. Kraft's proposed testimony as irrelevant, and the
trial judge reiterates that he excluded only Dr. Kraft's testimony
about the defendant's state of mind, which is consistent with Rule
704(b).
The situation evidenced by the record is thus unusual,
if not unique. Fairly read, I cannot find a defense objection
consistent with the preservation requirements of Federal Rule of
Evidence 103, but the record strongly suggests that both the
government and the defense believed that the district judge
excluded the sexual predation part of the proffered expert
testimony. If only the defendant had misunderstood the trial
judge, it would be one thing, but here, as evidenced by its post-
trial filing, the government was also under the misimpression that
the trial judge had excluded this part of Dr. Kraft's testimony as
irrelevant. From the government's post-trial filing, I agree that
even if the government's position does not quite tie the bow on
the question of preservation, both parties, for whatever reason,
treated the district judge's rulings and reminders as prohibiting
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the sexual predation testimony of Dr. Kraft rather than as
reminders of the boundaries of Rule 704(b). In my view, although
the issue is a close one, there is enough play within Federal Rule
of Evidence 103(e) to allow us to reach the substantive question,
even absent proper preservation. Fed. R. Evid. 103(e) ("A court
may take notice of a plain error affecting a substantial right,
even if the claim of error was not properly preserved.").
Given this conclusion, and for the reasons well stated
by the majority, I join in the majority's conclusion that the jury
should have been presented with Dr. Kraft's proposed testimony
about sexual predation and the internet, including the
characteristics and behavioral patterns of a typical online
predator. I am also influenced by the majority's view that Dr.
Kraft's expert opinion on the hallmarks of online sexual predation
and the significance of the online chats in this case could have
made a difference in the jury verdict and therefore, I concur with
the majority's resolution of this appeal.
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