First Circuit vacates CP convictions after FBI agent makes improper statements

The First Circuit recently reversed a child pornography conviction after admission of improper testimony. United States v. Vázquez-Rivera, 665 F.3d 351 (1st. Cir. 2011). The FBI had conducted a chatroom operation, posing as a 14-year-old girl. After sending video to the "girl" of a man (no face identifiable) masturbating, the FBI tracked the IP address back to the home of the defendant. Over 100 images of child pornography were found on the home computer, which was apparently accessible by seven people.

The first issue on appeal was whether test FBI Agent Segarra's testimony was improper overview testimony. Such testimony is usually presented "early during trial to describe the government's general theory of the case." The problem is when the witness provides an overview of the entire investigation "including aspects ... the witness did not participate in, before the government has presented evidence." However, the court found that the agent's testimony was not improper overview because the agent was the "penultimate witness on the first day of a five-day trial and, as such, did not "preview" the government's case."

On the stand, Segarra was asked to identify the person who was found to have been using the screen name at issue, and she responded with the defendant's name. The admission of this statement was plain error because it addressed the ultimate issue before the jury. Only circumstantial evidence existed to show a connection between the defendant and the chats. Further, the testimony was based "on the overall investigation rather than her personal observations." Here's the exchange:

Q: And just to make -- to clarify, IncestoPR is the same person as Secreto, correct?
A: Correct.
Q: And Secreto is the same person at Bienhotpr@hotmail.com?
A: Correct.
Q: And throughout your investigation, who did you identify that person to be?
. . . .
A: We identified him as William Vazquez-Rivera.

The court also addressed the specific wording of the testimony by Segarra: "we ended up identifying [the subject] as William Vazquez Rivera." This statement is also improper because it involves the opinion of other unidentified officers and because it declares the defendant to have "sent the illicit material and was therefore guilty."

She also testified regarding the video that has been sent. The defendant was wearing pajama pants in the video and was wearing those same pants the day that Segarra and others arrived at the defendant's home to execute a search warrant. Because she connected the pants to identify the defendant as the same person in the video, this testimony was improper.

This goes on and on with various other statements made by the agent, and the court strikes each down as improperly admitted. The court found that the "repeated and extensive use of improper testimony may have influenced the jury" and because the evidence was not "sufficiently compelling to assuage this concern," the conviction should be vacated.