              United States Court of Appeals
                         For the First Circuit

No. 11-1646

                       UNITED STATES OF AMERICA,

                               Appellee,

                                   v.

                              STEVEN SOTO,

                         Defendant, Appellant.


              APPEAL FROM THE UNITED STATES DISTRICT COURT

                   FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Joseph L. Tauro,    U.S. District Judge]


                                 Before

                         Howard, Circuit Judge,
                       Souter,* Associate Justice,
                     and Torresen,** District Judge.


     Robert C. Andrews for appellant.
     Mark T. Quinlivan, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.


                             June 24, 2013




     *
      Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
     **
          Of the District of Maine, sitting by designation.
          TORRESEN, District Judge.         After a jury trial, the

appellant, Steven Soto, was convicted on all counts of a seventeen-

count indictment charging mail fraud, wire fraud, bank fraud, and

aggravated identity theft.1 On appeal, Soto argues that the trial

court violated his Sixth Amendment right to confront the witnesses

against him by admitting testimony of a forensic examiner about

another examiner’s prior examination.       Soto also challenges the

sufficiency   of   the   government’s   evidence   for   his   aggravated

identity theft convictions. For the following reasons, we uphold

Soto’s convictions on all counts.

I.   Sufficiency of the Evidence on the Aggravated Identity Theft
     Counts

     A. Factual Background

          We begin with Soto’s second argument because it allows us

to describe the fraudulent scheme behind all of the charges. Soto

contends that there was insufficient evidence that he knew that the

identification he fraudulently used to purchase four motorcycles

actually belonged to another person.      Because Soto challenges the

sufficiency of the government’s proof at trial, we recite the facts

in the light most favorable to the jury’s verdict.        United States

v. Valerio, 676 F.3d 237, 240-41 (1st Cir. 2012).

     1
       Counts one through four charged mail fraud in violation of
18 U.S.C. § 1341; counts five through seven charged wire fraud in
violation of 18 U.S.C. § 1343; counts eight and nine charged bank
fraud in violation of 18 U.S.C. § 1344; and counts ten through
seventeen charged aggravated identity theft in violation of 18
U.S.C. § 1028A.

                                  -2-
           On March 27, 2006, Soto brought his girlfriend, Yessica

Amaro, to Motorcycles of Manchester (MoM’s) in New Hampshire. Soto

purchased a 2003 Suzuki motorcycle for Amaro, who was posing as

“Christine Escribano.”        Soto told the office manager at MoM’s that

he would bring Escribano’s license when he came to pay and retrieve

the motorcycle the next day.           Although Soto neglected to produce

Escribano’s license, MoM’s completed the sale in the name of

Christine Escribano on March 28, 2006.            On April 1, 2006, Soto and

Amaro repeated the scheme at Kelly Power Sports in Danvers,

Massachusetts.         This   time   they    produced   Escribano’s    driver’s

license,   which   a    salesperson     photocopied,     and   they   purchased

another 2003 Suzuki motorcycle.             On April 6, 2006, Soto and Amaro

continued the charade at North Reading Motor Sports in North

Reading, Massachusetts, once again using Escribano’s driver’s

license to purchase two Honda motorcycles.              The manager at North

Reading Motor Sports made a photocopy of Escribano’s license for

his records.

           Soto paid for the motorcycles with counterfeit cashier’s

checks, and the dealerships applied for title and registration for

the motorcycles with the Massachusetts Registry of Motor Vehicles

(RMV) in Escribano’s name.           Soto then sent counterfeit notarized

affidavits2 to the RMV, transferring the titles to the motorcycles


     2
        In order to create the counterfeit affidavits, Soto used
the identity of Milagros Espinal, an actual notary public who had
notarized documents for Soto in the past.

                                       -3-
to either his uncle, Salvador Shower, or his friend, Abraham

Dominguez.     Soto intercepted the “clean” titles issued by the RMV

from the mail of Shower and Dominguez.       Once Soto had the titles,

another friend posed as either Shower or Dominguez and sold the

motorcycles to innocent third parties.

             Christine Escribano testified that she had lost her

driver’s license, and she identified her license from the photocopy

made by one of the motorcycle dealerships.

             Soto also purchased three automobiles posing as Gregory

Bradley, a friend of Soto’s who was incarcerated at the time. Soto

produced Bradley’s driver’s license to buy the cars and to obtain

financing for the car purchases.        Because Soto is not contesting

the sufficiency of the evidence supporting the charges related to

the car purchases, we need not describe this scheme in detail.

             At the conclusion of the government’s case-in-chief, Soto

moved for a Rule 29 judgment of acquittal, arguing in relevant part

that there was insufficient evidence that he knew that Escribano

was a real person.      The district court orally denied the motion.

Soto renewed the motion at the close of the evidence, and the

district court again denied the motion.

     B.      Standard of Review and Relevant Law

             We review the district court’s denial of a Rule 29 motion

de novo.   Valerio, 676 F.3d at 243.     We must uphold the denial if,

taking the evidence at trial in the light most favorable to the


                                  -4-
jury’s    verdict,       a    rational       factfinder       could    find      that    the

government proved each essential element of the crime beyond a

reasonable doubt.        Id. at 244.          Soto was convicted under 18 U.S.C.

§ 1028A, which states:

            Whoever, during and in relation to any felony
            violation enumerated in subsection (c), knowingly
            transfers, possesses, or uses, without lawful
            authority, a means of identification of another
            person shall, in addition to the punishment
            provided for such felony, be sentenced to a term of
            imprisonment of 2 years.

18 U.S.C. §1028A(a)(1).               Under this statute, the government was

required to prove beyond a reasonable doubt that Soto knew that the

means of identification that he used belonged to another person.

Flores-Figueroa v. United States, 556 U.S. 646, 657 (2009).                              The

government        need       not    have      direct     evidence       of    knowledge;

circumstantial evidence can be sufficient. Valerio, 676 F.3d at

244.

            Soto     argues        that     the    evidence   proved      only    that    he

possessed the license, not that he knew that the license was that

of     another    person.           Viewed        cumulatively,    the       government’s

circumstantial evidence was sufficient for a rational jury to find

beyond a reasonable doubt that Soto knew that the license belonged

to another person.

            First,       the       government       introduced    the     photocopy       of

Escribano’s       license      made    by    North     Reading    Motor      Sports     into

evidence.        The driver’s license contains a banner with the word


                                             -5-
“Massachusetts” and the state’s silhouette and seal.      The license

has a number, date of birth, vehicle classification, height, sex,

address, and expiration date.           The license bears Escribano’s

signature and contains two photographs –- one larger and the second

lighter and smaller, obviously some type of security feature.     The

license also bears the signature of the registrar running up the

left-hand side of the larger photograph. The license bears a small

heart, designating an organ donor.          Nothing about the license

suggests it is counterfeit or fake.            A modern Massachusetts

driver’s license is a sophisticated identification document with a

number of security features. Unlike social security cards or birth

certificates –- printed on card stock or paper –- a Massachusetts

driver’s license cannot be easily forged.         We believe that the

license alone provides strong evidence of its own authenticity.

Soto, himself a Massachusetts resident and driver, would have been

familiar with the features of an authentic Massachusetts driver’s

license.

           Second, Soto’s willingness to use Escribano’s license to

purchase expensive vehicles suggests that he knew that the document

was authentic.     Two of the dealerships actually copied the license

for their files.    The fact that Soto knew that the license might be

subjected to scrutiny by the dealerships supports the inference

that he knew that the license belonged to a real person.          See

Valerio, 676 F.3d at 244-45 (defendant’s willingness to subject


                                  -6-
means    of    identification       to     government      scrutiny     evidence      of

defendant’s knowledge).

               Finally, the government produced evidence at trial that

all of the other people who Soto involved in his schemes were real

people.      Soto forged the notary stamp from a notary he previously

used; he assigned titles to his uncle and his friend; he purchased

automobiles using his friend Gregory Bradley’s identity.                      The jury

could have reasonably inferred that Soto’s modus operandi was to

involve people whom he knew to be real.

               The   government       produced     evidence       beyond     the   mere

possession of Escribano’s license.               Cumulatively, the evidence was

sufficient      to   allow    a   reasonable       jury    to    conclude    beyond   a

reasonable      doubt   that      Soto    knew   Escribano’s       license    actually

belonged to another person.              We affirm the district court’s denial

of Soto’s Rule 29 motion.

II.     The Crawford Challenge

        A.    Procedural Background

               The   day     before       trial,    Soto        moved   to    suppress

incriminating evidence found on a laptop computer seized in an

inventory search of one of the automobiles Soto purchased using

Bradley’s identity.          Soto argued in his motion that the seizure

violated his Fourth Amendment rights.                The district court held a

hearing and denied the motion.

               At trial, Special Agent Michael Pickett of the United


                                           -7-
States   Secret   Service   testified   about   a   computer   forensics

examination he had conducted on the seized laptop.       Agent Pickett

first testified generally about how a forensics examination is

conducted and then identified Exhibit 30 as the hard drive removed

from the laptop.    Agent Pickett explained that another forensics

examiner, John Murphy, had done a forensics examination before him.

Agent Pickett testified: “I took the hard drive out of this laptop,

I made my own image and I examined the image of the hard drive and

I confirmed that everything that was in John Murphy’s report was

exactly the way he said it was.”

           Agent Pickett identified Exhibit 20, which consisted of

several documents that were found on the hard drive of the laptop,3

and he testified:

           PROSECUTOR: After you made an image of the hard
           drive from Exhibit 30, the laptop computer, were
           you able to print out certain documents that appear
           on the hard drive?
           AGENT PICKETT: I did not make a hard copy printout;
           however, I used the forensic program called EnCase
           to find this document, and it was contained in the
           same folder that John Murphy had said that he had
           found it in.
           PROSECUTOR: So am I correct in understanding that
           each of the pieces of paper in Exhibit 20 are hard



     3
       The documents were: (1) a welcome email from Expedia.com to
biznsmen@hotmail.com with login information for member ID
SSoto2006, (2) a 2005 W-2 and earnings summary for Carmen L. Soto,
(3) a 2005 W-2 and earnings summary for Gregory Bradley, (4) a
Comcast past due balance notice addressed to Gregory Bradley, (5)
a W-2 wage and tax statement from CMJ Management Co. for Gregory
Bradley, (6) a Paradise Real Estate pay stub for Gregory Bradley,
and (7) a Paradise Real Estate pay stub for Manuel Shower.

                                  -8-
             copies of stuff you confirmed were in the hard
             drive that was in Exhibit 30?
             AGENT PICKETT: Yes.    I saw this document, this
             file, looking in EnCase and confirmed that it was
             on the image of the hard drive that I made.

The government then offered Exhibit 20, and Soto’s counsel stated:

“Judge, for the record I have to object pursuant to a previous

motion I made to the Court, but I do that only for the record.”

The court admitted Exhibit 20 into evidence.

             On cross-examination, Agent Pickett testified:

             COUNSEL: Just so we’re clear, you were the second
             Secret Service agent to perform forensic work on
             the laptop, correct?
             AGENT PICKETT: That is correct. John Murphy was
             the original examiner, and then I re-examined it.
             COUNSEL: Why did you re-examine it?
             AGENT PICKETT: I was asked to.
             COUNSEL: By whom were you asked to?
             AGENT PICKETT: By Attorney Capin.
             COUNSEL: And what was the reason why you were asked
             to?
             AGENT PICKETT: To confirm that everything on John
             Murphy’s report was exactly the way he said it was.

             At   the   end   of   his   testimony,   Agent   Pickett

testified:

             PROSECUTOR: And just one last question. You were
             asked a number of questions about the original
             agent, I think Murphy, who analyzed this. Do you
             know why Murphy isn’t here today?
             AGENT PICKETT: That is correct. John Murphy has,
             as part of our normal career transition, has gone
             on to Washington, D.C.    He’s now part of what’s
             called our technical security division.    He’s in
             charge of the alarms and electronic security at the
             White House.




                                     -9-
     B.   Standard of Review

             Because   Soto   did   not   raise   a   contemporaneous   Sixth

Amendment objection to Agent Pickett’s testimony, we review the

district court’s admission of Agent Pickett’s testimony for plain

error.    See Fed. R. Crim. P. 51(b), 52(b); United States v.

Mercado, 412 F.3d 243, 247 (1st Cir. 2005).4           Thus, on appeal Soto

must show:

             “(1) error, (2) that is plain, and (3) that affect[s]
             substantial rights.” Johnson v. United States, 520 U.S.
             461, 467 (1997).   If he is able to satisfy all three
             elements, this court, in its discretion, may “notice a
             forfeited error, but only if (4) the error seriously
             affect[s] the fairness, integrity, or public reputation
             of judicial proceedings.” United States v. Borrero-
             Acevedo, 533 F.3d 11, 15 (1st Cir. 2008).

United States v. Acevedo-Maldonado, 696 F.3d 150, 156 (1st Cir.

2012) (other internal quotations omitted).

     C.   Relevant Law

             The   Sixth      Amendment     states:     “In   all   criminal

prosecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him . . . .”              U.S. Const.

amend. VI.    In Crawford v. Washington, 541 U.S. 36, 53-54 (2004),

     4
         Soto argues on appeal that we should review his Sixth
Amendment challenge de novo because Soto’s counsel made a general
objection during Agent Pickett’s testimony to the authenticity of
the Exhibit 20 documents. At trial, Soto’s counsel objected to the
admission of the documents found on the hard drive “pursuant to a
previous motion I made to the Court.” This objection must refer to
counsel’s pre-trial motion to suppress the laptop as the fruit of
an unreasonable search.         Because Soto did not make a
contemporaneous Confrontation Clause or even a hearsay objection,
we review for plain error.

                                     -10-
the Supreme Court held that the Sixth Amendment bars the “admission

of testimonial statements of a witness who did not appear at trial

unless he was unavailable to testify and the declarant had had a

prior opportunity for cross-examination.”

            A critical part of the Crawford holding

            is the phrase “testimonial statements.”        Only
            statements of this sort cause the defendant to be a
            “witness” within the meaning of the Confrontation
            Clause.   It is the testimonial character of the
            statement that separates it from other hearsay
            that, while subject to traditional limitations upon
            hearsay   evidence,   is   not   subject   to   the
            Confrontation Clause.

Davis v. Washington, 547 U.S. 813, 821 (2006) (internal citation

omitted).    As we have previously explained:

            Thus far, the Supreme Court has declined to supply
            “a comprehensive definition of testimonial.”
            Crawford, 541 U.S. at 68; see also Davis, 547 U.S.
            at 822. The Court has, however, provided an
            illustrative   list   of   the   “core   class   of
            ‘testimonial’ statements.” Crawford, 541 U.S. at
            51. It includes (1) “ex parte in-court testimony or
            its functional equivalent — that is, material such
            as affidavits, custodial examinations, prior
            testimony that the defendant was unable to cross-
            examine, or similar pretrial statements that
            declarants would reasonably expect to be used
            prosecutorially,” (2) “extrajudicial statements
            . . . contained in formalized testimonial
            materials, such as affidavits, depositions, prior
            testimony, or confessions,” and (3) “statements
            that were made under circumstances which would lead
            an objective witness reasonably to believe that the
            statement would be available for use at a later
            trial.” Id. at 51-52 (internal quotation marks and
            citation omitted). . . .     Mindful of Crawford’s
            bottom line, this court, in determining whether a
            statement is “testimonial,” inquires whether “an
            objectively reasonable person in the declarant’s
            shoes would understand that the statement would be

                                -11-
            used in prosecuting the defendant at trial.”
            United States v. Earle, 488 F.3d 537, 543 (1st Cir.
            2007).

United States v. Phoeun Lang, 672 F.3d 17, 22 (1st Cir. 2012).

            In Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309-11

(2009), the Supreme Court held that an affidavit reporting the

results of the state’s drug analysis falls within the “core class

of testimonial statements,” and the defendant must be afforded his

constitutional right to confront the analysts.            In Bullcoming v.

New Mexico, 131 S. Ct. 2705, 2713 (2011), the Court held that a

certified blood alcohol content report can be used against the

defendant only if the defendant has the opportunity to confront at

trial the analyst who performed, observed, or supervised the

forensic examination.     The Court explained: “In short, when the

State elected to introduce [the analyst’s] certification, [the

analyst] became a witness Bullcoming had the right to confront.”

Id.   at   2716.   The   Sixth   Amendment   was    not   satisfied   by   a

“surrogate” witness who was familiar with the lab’s practices but

who had formed no independent opinion concerning the forensic

examination results.     Id. at 2715-16; see also United States v.

Ramos-González, 664 F.3d 1, 5-6 (1st Cir. 2011). “Accordingly, the

analysts who write reports that the prosecution introduces must be

made available for confrontation . . . .”          Bullcoming, 131 S. Ct.

at 2715.




                                  -12-
              Finally, in Williams v. Illinois, 132 S. Ct. 2221 (2012),

the Supreme Court tackled the constitutionality of allowing an

expert witness to discuss a non-testifying expert’s statements when

the    non-testifying         expert’s    statements           are   not   admitted     in

evidence.      Justice Alito, Chief Justice Roberts, Justice Kennedy,

and    Justice    Breyer      reasoned    that    the     non-testifying       expert’s

statements could be discussed by the testifying expert because the

non-testifying expert’s statements were not offered for their

truth, but only to explain the assumption on which the testifying

expert based her opinion.              Id. at 2235-40.          In dissent, Justices

Kagan, Scalia, Ginsburg, and Sotomayor concluded that the non-

testifying expert’s statements were being offered for their truth

and    were   testimonial,       and    thus     found    a     Confrontation     Clause

violation.        Id.    at    2268-72    (Kagan,        J.,    dissenting).       In    a

concurring opinion, Justice Thomas agreed that the non-testifying

expert’s statements were offered for their truth but concluded that

they    “lacked    the     requisite      ‘formality       and       solemnity’   to    be

considered ‘testimonial’ for purposes of the Confrontation Clause.”

Id. at 2255 (Thomas, J., concurring).,

       D. Analysis

              Soto’s argument on appeal is that Agent Pickett testified

as a surrogate witness and a conduit for Agent Murphy’s report in

violation of the Confrontation Clause.                         He also argues that

allowing Agent Pickett to testify about Agent Murphy’s conclusions


                                          -13-
subverted his right to confront Agent Murphy and unfairly bolstered

the Government’s evidence by indicating that the forensic results

were verified by two agents.

          Agent Pickett did not testify as a surrogate witness for

Agent Murphy. Bullcoming provides guidance. Bullcoming was pulled

over and arrested for driving while intoxicated. At trial, the

government introduced into evidence a laboratory report certifying

that Bullcoming’s blood alcohol content was above the legal limit.

The report was authenticated at trial by an analyst who was

familiar with the laboratory’s testing procedures but otherwise had

nothing to do with the test.   Bullcoming, 131 S. Ct. at 2709.         The

Court explained that the testifying analyst provided impermissible

“surrogate   testimony”   because   the   testifying   analyst   had    no

knowledge about the test of Bullcoming’s blood alcohol content or

the analyst who performed the test.       Id. at 2715.      “Nor did the

State assert that [the testifying analyst] had any ‘independent

opinion’ concerning Bullcoming’s BAC.”      Id. at 2716.5


     5
         In part IV of the Supreme Court’s Bullcoming opinion,
joined only by Justice Scalia, Justice Ginsburg observed that the
state could have avoided a Sixth Amendment violation when it
realized that the original scientist was unavailable to testify “by
asking [the testifying analyst] to retest the sample, and then
testify to the results of his retest rather than to the results of
a test he did not conduct or observe.”      Id. at 2718.    Justice
Kennedy, with Chief Justice Roberts, Justice Breyer, and Justice
Alito, in dissent, concluded that testimony from a knowledgeable
lab representative is sufficient under the Sixth Amendment. Id. at
2723 (Kennedy, J., dissenting). Thus, it appears that six justices
would find no Sixth Amendment violation when a second analyst
retests evidence and testifies at trial about her conclusions about

                                -14-
            Unlike in Bullcoming, Agent Murphy’s forensic report was

not introduced into evidence through Agent Pickett.          Agent Pickett

testified about a conclusion he drew from his own independent

examination of the hard drive.       The government did not need to get

Agent Murphy’s report into evidence through Agent Pickett. Cf.

Bullcoming, 131 S. Ct. at 2716; Ramos-González, 664 F.3d at 6

(finding Sixth Amendment violation where testifying expert recited

non-testifying      analyst’s    conclusion    that   substance   contained

cocaine    and   provided   no   independent   opinion   about    nature   of

substance).      We do not interpret Bullcoming to mean that the agent

who testifies against the defendant cannot know about another

agent’s prior examination or that agent’s results when he conducts

his examination.      The government may ask an agent to replicate a

forensic examination if the agent who did the initial examination

is unable to testify at trial, so long as the agent who testifies

conducts an independent examination and testifies to his own

results.

            Soto’s argument that Agent Murphy’s report bolstered

Agent Pickett’s testimony hits closer to the mark. At trial, Agent

Pickett testified that the incriminating documents in Exhibit 20

were found on a laptop that was seized from Soto’s car.            Although

Agent Pickett had independent knowledge of that fact, he testified

that “everything that was in John Murphy’s report was exactly the


her independent examination.

                                    -15-
way he said it was,” and that Exhibit 20 “was contained in the same

folder that John Murphy had said that he had found it in.”              “[I]f

what the jury hears is, in substance, an untested, out-of-court

accusation against the defendant . . . the defendant’s Sixth

Amendment right to confront the declarant is triggered.”               United

States v. Meises, 645 F.3d 5, 21 (1st Cir. 2011).             These two out-

of-court   statements   attributed    to   Agent    Murphy    were    arguably

testimonial and offered for their truth.           Agent Pickett testified

about the substance of Agent Murphy’s report which Agent Murphy

prepared for use in Soto’s trial. Agent Murphy’s conclusion in his

report, which Agent Pickett repeated, was offered to show that the

Exhibit 20 documents were located on the hard drive of the laptop

seized from Soto’s vehicle.    Agent Pickett’s testimony about Agent

Murphy’s prior examination of the hard drive bolstered Agent

Pickett’s independent conclusion that the Exhibit 20 documents were

found on Soto’s hard drive.

           But this Confrontation Clause violation was not plain

error. Had counsel for Soto made a contemporaneous Sixth Amendment

objection or objected to Agent Murphy’s absence, the trial court

could have given a curative instruction, or the government could

have produced Agent Murphy to testify.         See Ramos-González, 664

F.3d at 4 (objection to absence of chemist who performed drug

analysis   sufficient    to   raise    Confrontation         Clause   issue).

Furthermore, Agent Murphy’s out-of-court testimonial statements


                                 -16-
linking Soto to the Exhibit 20 documents were entirely cumulative

of Agent Pickett’s in-court testimony regarding his own independent

examination. The admission of Agent Pickett’s statements about the

conclusions   in   Agent   Murphy’s   report   did     not   affect   Soto’s

substantial rights.     We conclude that there was no plain error.

                                 Conclusion

          For    the   reasons    discussed   above,    we   affirm   Soto’s

convictions on all counts.


     Affirmed.




                                    -17-
