          United States Court of Appeals
                     For the First Circuit


No. 17-1123

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                      RANDY CHARRIEZ-ROLÓN,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Aida M. Delgado-Colón, U.S. District Judge]


                             Before

                 Torruella, Lipez, and Thompson,
                         Circuit Judges.


     Alan Jay Black, for appellant.
     Christopher J. Smith, Attorney, Appellate Section, Criminal
Division, U.S. Department of Justice, with whom Rosa Emilia
Rodríguez-Vélez, United States Attorney, Mariana E. Bauzá-Almonte,
Assistant United States Attorney, Chief, Appellate Division, and
Franscisco A. Besosa-Martínez, Assistant United States Attorney,
were on brief, for appellee.


                           May 1, 2019



	
             THOMPSON,   Circuit      Judge.        Randy     Charriez-Rolón

(Charriez,    for   short)   stands    convicted      of   possessing    child

pornography and transporting a minor with the intent to engage in

criminal sexual activity. For his crimes, he received an effective

sentence of 420 months in prison (because the district judge

ordered concurrent time). Charriez now appeals, arguing that there

was insufficient evidence to convict him of possessing child

pornography and that the prosecutor's comments during closing

arguments crossed constitutional lines.           Neither of his arguments

persuade us, so we affirm his conviction on all counts.

                                  BACKGROUND

             Because   Charriez    challenges   the    sufficiency      of   the

evidence, among other things, we state the facts in the light most

favorable to the jury's verdict.            See United States v. Santos-

Soto, 799 F.3d 49, 56-57 (1st Cir. 2015).

                             A.   XFS Moves In1

             In 2009, when he was five years old, XFS and his family

moved into a neighborhood called "Las Cuchillas" in Toa Alta,

Puerto Rico — four houses away from Charriez.               There, XFS lived

with his parents and four siblings: two older sisters, one older

brother, and one younger sister.        About a year after XFS and his




     1 In cases involving minors, we refer to children by their
initials, rather than their full names, to protect their privacy.


                                    - 2 -
family moved in, Charriez approached XFS's mother and offered a

helping hand for whatever the family might need in the future.

             The   family   welcomed   the    help,   and   Charriez   began

regularly spending time at XFS's home as a friendship developed.

Charriez offered neighborly gestures, for instance when XFS's

parents could not pick up the kids from school, Charriez would get

them home.    When he ran errands, Charriez would visit the kids and

take them along for the ride.      He got close to them, particularly

with XFS.

             And XFS, who was bullied at school and had trouble

communicating with others, welcomed Charriez's invitations at

first.   After all, Charriez was showering him and his siblings

with gifts such as ice cream, video games, bicycles, and even a

bunk bed worth $1,000 for the boys.          Unfortunately, though, things

are not always as they seem, and XFS's view of Charriez quickly

changed — with good reason, as we are about to see.

                   B.   Charriez's Sexual Abuse of XFS

             In the fall of 2013, XFS was starting the third grade

and doing well.     That December, though, XFS's mother learned that

his grades were slipping, and so she asked him what was going on.

He told her that he just couldn't think.              By February, XFS was

failing every class.        Eventually, XFS spoke with his uncle and

revealed a horrifying secret about Charriez.




                                   - 3 -
               Turns out, Charriez's intentions were anything but pure.

After picking up the kids from school, Charriez would drop them

all off at home — all, that is, except for XFS, who Charriez would

spend more time with without the parents' permission.        Strangely,

too, at night Charriez would climb up a balcony to get into the

children's bedroom.

               But that was only the beginning.   Charriez began showing

XFS "bad things" on his cellphone (more on that later).         And his

gifts now came with conditions.          For example, if XFS wanted to

ride the bike Charriez bought him, XFS had to let Charriez put his

finger into XFS's anus.        Once, when XFS refused, Charriez shot him

in the knee with a pellet gun, tied him up, and sexually assaulted

him.       Charriez used Vaseline each time to facilitate the assaults.

               And to Charriez, location did not matter.       He would

assault XFS in restroom facilities at public parks and fast food

restaurants.       In his vehicle with tinted windows, he would drive

to isolated areas of public parking lots and assault XFS in the

passenger's seat. The abuse began in late 2013 and continued until

law enforcement got involved the following spring.

                        C.    Charriez Gets Arrested

               The month after XFS spoke up about the abuses, police

arrested Charriez.           Waiving his Miranda rights2 Charriez gave



       2   See Miranda v. Arizona, 384 U.S. 436 (1966).


                                    - 4 -
police permission to search his home, vehicle, and cellphone while

they interviewed him at the local station.          At his home, police

found a jar of Vaseline.      In his car, they found a pellet gun under

the driver's seat.     On his phone, they found what appeared to be

seven sexually explicit images involving minors (children under

the age of eighteen).

            When questioned by police, Charriez admitted to having

a "curiosity" for children, which he blamed on allegedly being

molested as a child.     He also said he would use his cellphone to

search the internet, using terms in Google like "youngsters,"

"pornography," "anal sex," and "pedophilia."         And he said he knew

child pornography involved minors around age 14 and would "download

adult and child pornography," watch it, and then erase it.

            Armed with these facts, a grand jury indicted Charriez

for possessing child pornography and transporting a minor with the

intent to engage in criminal sexual activity.            See 18 U.S.C. §§

2423(a), 2252A(a)(5)(B) and (b)(2).          He pled not guilty and went

to trial.

                              D.     The Trial

            Covering   only    the    highlights,   we   note   that   the

government's case against Charriez included:

     physical evidence — the pellet gun and the tub of Vaseline;

     documentary evidence — account statements for the bunk bed
      Charriez purchased for XFS;



                                     - 5 -
     photographic evidence    —    the    images   found    on   Charriez's
      cellphone; and

     testimony from police officers — about the incriminating
      statements made by Charriez; a computer Forensic Examiner —
      about finding and flagging the pornographic images on
      Charriez's cellphone; XFS's school social worker — about
      XFS's school life during the abuse; XFS's mother — about how
      Charriez got close to XFS; and XFS himself — about every time
      Charriez abused him.

All of this matched the government's theory of Charriez's crimes.

              1. Charriez's Judgment of Acquittal Motion

           At the end of the government's case, Charriez's attorney

orally moved for a judgment of acquittal on the possessing child

pornography charge.     See Fed. R. Crim. P. 29.        His sole argument

was that no reasonable jury could find that the images involved

minors.   In his own words (emphasis ours):

      [W]hat is the evidence to conclude if those people are
      in fact minors?     And . . . they don't have to be
      pediatrician[s] or anything like that, but I still think
      that . . . reasonable [jurors] cannot, beyond a
      reasonable doubt, understand that first he downloaded
      those images and that those are minors.      That is my
      position, Your Honor.

Insisting that Charriez's argument is a question for the jury to

determine, the prosecutor argued that the jurors had sufficient

evidence to decide whether the images Charriez possessed depicted

minors    given   his   incriminating      statements   to    police,    the

Examiner's testimony, and the images themselves.         The judge agreed

and denied the motion.




                                   - 6 -
                      2. Charriez Takes the Stand

            Against his attorney's advice, Charriez chose to testify

in his defense.    We again hit the highlights.

            On direct examination, Charriez testified that he had

albinism, a genetic condition that affected his skin and eyesight.3

Because of his albinism, he had very dry skin and needed Vaseline

to moisturize. His car had tinted windows to protect his sensitive

skin and eyes from direct sunlight, the hope being that he would

avoid skin cancer (or so he said).      He claimed that his albinism

so affected his vision that any pictures on his phone would look

"blurry."    Switching subjects, he discussed his relationship with

XFS's mother. She and he, he said, were no longer friends, because

he once called the police on her for hitting her oldest daughter

— something that ticked her off.        Then, he claimed that XFS's

mother would regularly access his (Charriez's) cellphone, using it

to "search the internet" — though he "[did]n't know what she was

looking for."

            On cross-examination, the prosecutor asked Charriez to

confront both his admissions to police and the charges against


     3 According to a leading medical dictionary, albinism is "[a]
group of inherited . . . disorders with deficiency or absence of
pigment in the skin, hair, and eyes, or eyes only, resulting from
an abnormality in melanin production."       Albinism Definition,
Stedman's Medical Dictionary (28th ed. 2006), available at
Westlaw.




                                - 7 -
him.    Charriez admitted he told police he would search Google for

terms     like     "pornography,"     "anal    sex,"     "pedophilia,"     and

"youngsters."      But he explained he only said so because he thought

that was what police wanted to hear.           Every time the prosecutor

brought up the abuse, though, Charriez's attorney objected that

the questions were outside the scope of direct examination.                The

judge agreed.      Unable to get Charriez to directly accept or deny

responsibility, the prosecutor quickly ended his cross.

            Charriez did not call any other witnesses, but he did

renew his acquittal motion, making the same arguments that he had

made in his previous motion.         The judge denied the renewed motion

for the same reasons as before.

                                  3. Summation

            Each    side   then     gave   closing     arguments,   with   the

prosecutor asking the jury to convict and the defense urging the

jury to acquit.       Of particular note, during the rebuttal portion

of his closing argument, the prosecutor took one last shot at

Charriez:

        In conclusion ladies and gentlemen and most important,
        the defendant came before you, took the stand and did
        not deny the allegations. Had the opportunity to and
        when given the opportunity to he did not deny the
        charges.

Charriez's attorney did not object.




                                     - 8 -
                           4. Jury Instructions

            The next day, just before she gave the final charge to

the jury, the judge talked to counsel about one instruction that

she had written up on her own — an instruction that read:

       [K]eep in mind that the defendant has a Constitutional
       right to be presumed innocent and not to testify.
       Actually when a defendant does not testify no inference
       of guilt may be drawn from the fact that the defendant
       did not testify.

       In this case the defendant Charriez Rolon decided to
       testify. He provided testimony on certain subjects upon
       which questions which were posed to him.

       Regardless of what might have been argued by counsel, I
       instruct you that you should examine and evaluate his
       testimony, that is what he said, what he testified about,
       and you are not to speculate or draw any adverse
       inference on matters that he did not testify about. The
       defendant[']s testimony is to be evaluated just as you
       would evaluate the testimony of any witness with an
       interest in the outcome of the case.

Both   sides   basically   agreed    to     the   instruction,   though   the

prosecutor proposed the following tweak:

       Your Honor, there is no objection [to the jury
       instructions] as such, but you have given me much food
       for thought with respect to your handwritten instruction
       here. I am wondering if it might not make sense even to
       make   it   stronger,   perhaps   mentioning   directly,
       statements made by counsel for the government or
       something along those lines. So that it becomes even
       more [evident] that this is curative instruction to
       anything that happened in the closing argument.

The judge responded (emphasis ours):

       [I]t is a curative instruction, a cautionary instruction
       for the jury. And for the record what I am referring to
       is that this is an instruction that is submitted to the
       jury because of the government[']s comments during


                                    - 9 -
     rebuttal, that the jury was to consider, or could
     consider that the defendant while taking the stand did
     not deny the conduct in Counts 1 and 2. Actually what
     it reads, in one of the sections is "Regardless of what
     may have been argued by counsel", I can add what might
     have been argued by counsel for the government. So that
     will pinpoint the attorney making the statement. But I
     don't want to unduly call the attention to a subject
     that otherwise could or could not have been ignored. I
     don't know. Any concerns by the defense?

Defense counsel said no and thanked the judge "very much."     The

prosecutor signed off.   And that was that.

          The judge issued the edited curative instruction, along

with the other agreed-on instructions.     And after she gave both

parties the chance to object, which neither side chose to do, the

jury deliberated.   That same day, the jury found Charriez guilty

on all counts.

                         ISSUES AND ANALYSIS

          Charriez now appeals, making two main arguments: first

that the government did not present enough evidence for the jury

to convict him of possessing child pornography, and second that

the prosecutor's closing arguments violated his constitutional

rights by spotlighting his decision to limit his testimony and not

address his guilt or innocence.   We consider each in turn.




                               - 10 -
          A.    Sufficiency of the Child Pornography Evidence4

               To convict Charriez of possessing child pornography, the

government needed to prove beyond a reasonable doubt that he

possessed photos that (1) contained minors who were (2) visually

depicted as being engaged in sexually explicit conduct.                   See 18

U.S.C. § 2252(a)(2).              A "minor" is a "person under the age of

eighteen."          Id. § 2256(1).          And "sexually explicit conduct"

includes "lascivious exhibition of the anus, genitals, or pubic

area."    Id. § 2256(2)(B)(iii).

               In moving for acquittal below, Charriez argued only that

the government did not adequately prove the first part of the

possessing-child-pornography charge:                that he possessed images of

minors.    And he makes that argument here, too.             But he also argues

for the first time that the government failed to provide sufficient

evidence       to   prove   the    second   part:     that   the   pictures   were

"lascivious."         Because      he   preserved      his   first   sufficiency

challenge, we review it with fresh eyes ("de novo" review in

legalese), analyzing the evidence in the light most favorable to

the government and reversing only if he carries the "heavy burden"

of "show[ing] that no rational jury could have found him guilty

beyond a reasonable doubt."             United States v. Scharon, 187 F.3d


     4 Curiously, unlike the jury and us, Charriez's appellate
counsel has not looked at the photos.




                                        - 11 -
17, 21 (1st Cir. 1999) (citing United States v. Rodríguez, 162

F.3d 135, 141 (1st Cir. 1998)).            But because he did not preserve

his second challenge, our review is limited to preventing a "clear

and gross injustice," United States v. Ponzo, 853 F.3d 558, 580

(1st   Cir.    2017),    knowing   there    can    be   no   "clear   and   gross

injustice" unless there has been such an "egregious misapplication

of legal principles" that reversal is required, United States v.

Greenleaf, 692 F.2d 182, 186 (1st Cir. 1982).

                1.    The Ages of the Persons in the Photos

              Relying on a Fifth Circuit opinion, United States v.

Katz, 178 F.3d 368 (5th Cir. 1999), Charriez writes that juries

sometimes need "expert testimony" to figure out the age of a model

in a child-pornography prosecution.               And he thinks that is the

case here, because even the Forensic Examiner was not absolutely

sure of the age of the persons depicted in the photos.                       The

government disagrees, insisting that the jury needed no expert

testimony because the images clearly showed prepubescent children

under age 18.        Reviewing de novo, we uphold the judge's ruling.

              The out-of-circuit case Charriez relies on — Katz — hurts

rather than helps his cause.        Yes, Katz says that expert testimony

"may well be necessary" if the government is trying to prove a

postpubescent model is under 18.           Id. at 373.       But — and it is a

big "but" — Katz also says that such testimony "is not necessary

or helpful" if images involve "prepubescent children who are . . .


                                    - 12 -
obviously less than 18."          Id. at 373 (emphasis added).        And

Charriez does not counter the government's point that the at-issue

images involve prepubescent children (he filed no reply brief).

So under the caselaw he favors, no expert was needed.

             Turning to our own caselaw, we have no opinion directly

on point.    As the government notes, one case does address whether

a sentencer needs an expert's help to make a finding that a

postpubescent female in a video was under 18.          United States v.

Batchu, 724 F.3d 1, 8 (1st Cir. 2013).       In answering no, however,

Batchu said that "even in assessing the more technical subject of

whether a sexually explicit image depicts a real or computer-

generated child," we do not demand that the government provide

"expert evidence on the ultimate question."          Id.   "[T]hat we do

not require experts for that fairly technical determination,"

Batchu added, "suggests that we should similarly not require the

government    to   provide   an   expert   witness   for   an   assessment

frequently and routinely made in day-to-day experience."              Id.

(citing United States v. Rodriguez-Pacheco, 475 F.3d 434, 441-44

(1st Cir. 2007)). And for support, Batchu approvingly cited United

States v. Cameron, a district court case holding that a factfinder

could find that a person in an image "is less than eighteen years

old" without any "confirming expert testimony."        See 762 F. Supp.

2d 152, 163-64 (D. Me. 2011) (noting that "Rodriguez–Pacheco's

logic is readily extended to the more commonsense determination of


                                  - 13 -
whether a person in an image is less than eighteen years old"),

aff'd in part, rev'd in part on other grounds, 699 F.3d 621 (1st

Cir. 2012).   So Batchu does nothing to help Charriez's claim that

expert testimony was needed here.

           True, Batchu left open "whether expert testimony is

required (or able) to prove beyond a reasonable doubt the minority"

of certain persons in a video or photo.          See 724 F.3d at 8.      But

we need not pursue that issue here, for a simple reason.           Not only

did the jury hear the Forensic Examiner talk about the prepubescent

children's "small" and underdeveloped bodies; and not only did the

jury get to see the photos of these persons for itself — the jury

also heard the police say how Charriez said that he knew child

pornography involved children around 14 years old and that he

searched   for   such    images   on    his    phone   using    terms    like

"pornography," "anal sex," "youngsters," and "pedophilia."               With

this evidence — viewed afresh, and in the light most agreeable to

the government — a rational jury could find, beyond a reasonable

doubt, that the images admitted into evidence contained minors.

           So Charriez's first sufficiency challenge fails.

                 2.   The Lasciviousness of the Photos

           Charriez     next   argues   that    the    photos   cannot    be

considered child pornography because the government failed to

provide enough evidence for the jury to find them "lascivious."

He again blasts the Forensic Examiner's testimony, claiming that


                                  - 14 -
because the Examiner never indicated that the images focused on

the genitals, pubic area, or intended to elicit a sexual response

in the viewer, the government failed to meet its burden.                       The

government thinks otherwise, arguing again that the images are

blatantly   lascivious.      Checking   only    for    a   clear    and   gross

injustice, we see no reason to disturb the judge's ruling.

            The problem for Charriez is that his brief does not

mention the clear and gross injustice standard, let alone develop

any argument to meet it.       And because we are not obliged to do a

party's work for him, we consider this aspect of his sufficiency

claim waived for inadequate briefing.             See United States v.

Freitas, 904 F.3d 11, 23 (1st Cir. 2018) (finding waiver in a

similar situation).

            Even if we were willing to overlook this waiver — and we

are   not   —   Charriez's     lascivious    argument      cannot    prevail.

"[L]ascivious    is   a   'commonsensical'     term"   and   "there       is   no

exclusive list of factors . . . that must be met for an image (or

a film) to be 'lascivious.'"        United States v. Silva, 794 F.3d

173, 181 (1st Cir.    2015).    There are certain factors that we have

considered relevant, though, including

      (1) whether the genitals or pubic area are the focal
      point of the image; (2) whether the setting of the image
      is sexually suggestive (i.e., a location generally
      associated with sexual activity); (3) whether the child
      is depicted in an unnatural pose or inappropriate attire
      considering her [or his] age; (4) whether the child is
      fully or partially clothed, or nude; (5) whether the


                                  - 15 -
     image suggests sexual coyness or willingness to engage
     in sexual activity; and (6) whether the image is intended
     or designed to elicit a sexual response in the viewer.

United States v. Amirault, 173 F.3d 28, 31 (1st Cir. 1999).                    Here,

the contested images contained fully nude minors engaged in various

sexual acts.     When images, like the ones on Charriez's cell phone,

show "young [children] almost always . . . fully nude" and engaging

in activities that "display[] their genitalia in a manner that

. . . a jury reasonably could deem to be intended to sexually

arouse the viewer[,]" that is enough to show that the images are

"lascivious."5       See Silva, 794 F.3d at 181.

             So Charriez's second sufficiency argument fails, too.

                 B.    The Prosecutor's Closing Comments

             Which    brings    us    to     Charriez's    argument     that     the

prosecutor's     comments      during      summation   were    so    improper    and

prejudicial as to require us to grant him a new trial.6                          The

government     counters     that     Charriez     waived      this   argument     by



     5 To the extent Charriez also questions the sufficiency of
lascivious evidence for lack of expert testimony on that point,
the argument is a no-go. See United States v. Frabizio, 459 F.3d
80, 85 & n.8 (1st Cir. 2006) (stressing that "whether a given
depiction is lascivious is a question of fact for the jury," so
"expert testimony is not required").
     6   As a reminder, the prosecutor's comments at issue were:
     In conclusion ladies and gentlemen and most important,
     the defendant came before you, took the stand and did
     not deny the allegations. Had the opportunity to and
     when given the opportunity to he did not deny the
     charges.


                                      - 16 -
accepting a curative jury instruction and then failing to object

before jury deliberations.         Even if the argument is not waived,

however, the government insists that the jury could reasonably

infer that if Charriez could truthfully deny or explain the

evidence against him, he would have.         For our part, we think the

government's waiver argument is a winning one.

               Remember, Charriez's counsel readily agreed that the

judge adequately cured any error in the prosecutor's comments by

telling the jurors that "[r]egardless of what might have been

argued by counsel for the government, . . . you . . . are not to

speculate or draw any adverse inference on matters that [Charriez]

did not testify about."          His lawyer, don't forget, thanked the

judge    for    adopting   the   prosecutor's   suggested   tweak   (which

prompted the judge to add the "[r]egardless of what might have

been argued by counsel for the government") — a tweak that worked

in his client's favor, for sure.        That is waiver, pure and simple.

See, e.g., United States v. Corbett, 870 F.3d 21, 30-31 (1st Cir.

2017).   We can, in our discretion, excuse such a waiver if justice

demands it.       See id. at 31 n.14.    But such cases are rare.     Id.

And Charriez has done nothing to convince us that this is one of

them.

               Enough said about the prosecutor's closing comments
issue.




                                   - 17 -
                          CLOSING WORDS

          For the reasons recorded above, we affirm the judgment

of conviction entered below.




                               - 18 -
