          United States Court of Appeals
                     For the First Circuit


No. 11-1334

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                    JOSEPH ACEVEDO-MALDONADO,

                      Defendant, Appellant.


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

          [Hon. Gustavo A. Gelpí, U.S. District Judge]


                             Before

                       Lynch, Chief Judge,
              Torruella and Lipez, Circuit Judges.



     Anita Hill Adames, on brief for appellant.
     Luke Cass, Assistant United States Attorney, with whom Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Rosa Emilia Rodríguez-Vélez, United States Attorney,
on brief for appellee.




                        October 12, 2012
            TORRUELLA, Circuit Judge.          Defendant-Appellant Joseph

Acevedo-Maldonado ("Acevedo") was convicted after a jury trial of

producing, and aiding and abetting in the production of, a visual

depiction of a minor engaged in sexually explicit conduct using

materials mailed, shipped, or transported in interstate or foreign

commerce.    18 U.S.C. §§ 2251(a) & 2.         Acevedo appeals, asserting

that the Government's proof as to the crime's jurisdictional

element -- i.e., that the materials were a part of foreign or

interstate    commerce   --   rested   on   inadmissible        hearsay   which

violated his right to confrontation under the Sixth Amendment. For

the following reasons, we affirm Acevedo's conviction.

                              I.    Background

            Facts are derived from testimony given at trial. As this

appeal follows a conviction, "we recount the facts in the light

most favorable to the verdict."        United States v. Poulin, 631 F.3d

17, 18 (1st Cir. 2011).

            On January 30, 2009, police officer Javier Rivera-Yambo

("Rivera") executed a search warrant for computer equipment at both

Acevedo's apartment and the home of Acevedo's mother in Utuado,

Puerto Rico.    The search of Acevedo's apartment proved fruitless,

but   the   inspection   of   his   mother's     house    did   not:    officers

uncovered a webcam that Acevedo admitted was his to investigating

officers.      Acevedo   also   stated     during   the    search      warrant's




                                     -2-
execution that he had a computer at his sister's home.1        Based on

this statement, officers proceeded to his sister's house. Officers

seized   a    "computer   tower"2   located   "nearby   [the   sister's]

residence."    Rivera testified that the seized tower appeared to be

"broken down," as if someone had "tried to tear it apart."

             On February 2, 2009, Wilmary Ramos Soto ("Soto"), a Task

Force Agent in the Cyber Crimes Division of U.S. Immigration and

Customs Enforcement ("ICE"), went to the Utuado Police Station to

collect the evidence seized during the searches of Acevedo's

residences.     Among the items that Soto collected at the station

were the computer tower, the webcam, and other electronic devices.

Soto transported these items, including the hard drive, to a

forensic inspector; the hard drive3 was then sent to Drive Savers

in the mainland United States.        True to its company name, Drive

Savers specializes in retrieving lost information from damaged hard


1
   Questioning at trial confirmed that prior to executing the
search warrant, Acevedo was arrested for state charges unrelated to
this case. On being placed under arrest, officers administered
Miranda warnings to Acevedo.    Acevedo volunteered his statement
confirming ownership of the webcam, and informed officers as to his
computer's location in response to non-coercive police questioning.
2
   Both testimony and the parties' briefs refer to the seized
computer equipment as a "computer tower." A computer tower is a
type of computer that is generally in a box-like, rectangular
shape.   It holds many of the components of a desktop computer,
including a hard drive, motherboard, and power supply. We refer to
this equipment interchangeably as a "computer" or "computer tower."
3
   Testimony offered at trial by one of the computer equipment
examiners defined a hard drive as "a combination electronic/
mechanical device that's used to store data."

                                    -3-
drives for customers by repairing them and making duplicate copies

of their salvaged information.

          Ron Cen ("Cen"), a clean room4 technician who has worked

for nine years retrieving data from damaged hard drives at Drive

Savers, was in charge of examining and rescuing any available data

from Acevedo's hard drive and making an identical image copy5 of

the retrieved data.   Cen was successful in his tasks; he restored

Acevedo's hard drive and made a clone-image copy of the drive.

          ICE also enlisted the assistance of Maine State Police

Sergeant Glen Lang ("Lang"), a supervisor of that state's Computer

Crimes Unit who had extensive experience working and training

others in computer forensics, and who occasionally assisted in out-

of-state cases.   According to Lang's testimony, ICE sent him the

40-gigabyte6 Samsung hard drive seized from Acevedo's home and the

copy made by Drive Savers.    He also made his own image copy of the

drive seized by the police.    Lang had instructions to examine the



4
   Even though Cen did not explain during his testimony what a
clean room is, we presume it refers to a special type of laboratory
required to carry out the retrieval of data from damaged hard
drives.
5
   Cen explained that an image copy is, "a bit-by-bit clone of the
drive that is made to a "clean targetwell[]," or new hard drive
with purpose of producing "an identical copy of the data set" that
the engineers can work on.
6
   A gigabyte is a billion bytes. "Byte," in turn, means "a group
of adjacent binary digits often shorter than a word that a computer
processes as a unit," and the prefix "giga-" means "billion."
Webster's New Collegiate Dictionary 192, 517 (9th ed. 1986).

                                 -4-
data for any video clips it might contain.      His inspection of the

hard drive revealed a number of videos. Of those pertinent to this

case were approximately five, which "all contained a small string

of text . . . associated with the Logitech webcam" that Rivera

seized during the search of Acevedo's mother's home.       These videos

"all involve[d] some activities at a residence, generally involving

a girl and an adult male."

           On July 9, 2009, a grand jury indicted Acevedo and his

female partner, Jennisse López-Correa ("López") (collectively, the

"defendants") of one count.     The count charged that in April 2006,

defendants employed, used, persuaded, induced, enticed, or coerced

a female minor, identified as "L.G.,"7 to engage in sexually

explicit conduct with Acevedo for purposes of producing a visual

depiction of the same, which was recorded on a webcam and computer

that had been transported in interstate or foreign commerce. López

pled guilty to the charge; she also agreed to testify against

Acevedo at trial, which took place on July 7 and 8, 2010.

           At trial, the Government presented several witnesses,

including López and L.G.   López identified the seized computer and

webcam as the recording devices that she and Acevedo used to

document   Acevedo's   sexual   encounters   with   L.G.   López   also

described her role in filming Acevedo's sexual encounters with

L.G., and identified both of them in the videos -- obtained from


7
    The initials, "L.G.," are used to protect the victim's identity.

                                  -5-
the seized hard drive -- that were played for the jury.                 L.G.

likewise identified the seized webcam and computer as the devices

with which Acevedo and López recorded Acevedo's sexual encounters

with her, and identified herself and Acevedo in the videos shown to

the jury.

            The Government also presented the testimony of Cen and

Lang to establish the jurisdictional element of the offense.             The

prosecution tendered Lang as an expert in the area of computer

forensics, especially retrieval and preservation of electronic

evidence, without objection by Acevedo, who also declined an

invitation to voir dire.           Cen and Lang each testified at trial

concerning the origins of the hard drive and webcam, and their

testimony    served     as   the   only   evidence   introduced   at   trial

supporting the jurisdictional element of the Government's charge.

Specifically, the Government asked Lang as to the hard drive's

manufacturing location:

            Q:        And where was this hard drive made?

            LANG:     [K]orea.

                   ****
            Q:     And is that webcam compatible with the
            webcam you have described was used to create
            those videos?

            LANG:     Yes.




                                      -6-
          Q:     Now,       where         was   that     webcam
          manufactured?

                    ****

          LANG:     This webcam was made in China.

(Emphasis added.)

Cen, for his part, testified:

          Q:     Can you say the make of that [hard]
          drive, describe it?

          CEN:   It's a drive -- it's a Samsung 40-gig
          drive that it's, I believe -- the make -- was
          made in Korea.

                    ****

          Q:     And what is the country of fabrication
          of this hard drive?

          CEN:   This is a Samsung drive that's made in
          [K]orea.   And it's a 40-gig -- 40 gigabyte
          capacity.

(Emphasis added.)

          Acevedo did not object to the Government's submission

into evidence of the hard drive or the webcam, nor did he object to

Cen's or Lang's testimonies regarding the origins of the hard drive

and the webcam at the time they were offered.          In fact, Acevedo's

counsel did not cross-examine Cen at all and only cross-examined

Lang to inquire if he could tell, from the data he analyzed, who

created the videos and who accessed them after they were created.

That is, Acevedo's counsel did not probe Lang as to the basis for

his expert testimony regarding the origin of the hard drive and the

webcam.

                                    -7-
            Instead, prior to closing arguments, Acevedo moved for a

judgment of acquittal pursuant to Fed. R. Crim. P. 29.8                      Acevedo

asserted that the Government had failed to prove each element of

the charged offense beyond a reasonable doubt.                 In particular, he

argued that the only evidence offered concerning the interstate

commerce-element of the offense were the labels on the computer

equipment      and    Cen's    and    Lang's       testimonies,      which   Acevedo

understood to be a Crawford violation.9

            The district court denied Acevedo's Rule 29 motion,

stating that "no Crawford objection [had been] made," that Lang was

"an   expert    for    purposes      of    what    his   testimony    entailed      and

specifically he was an expert in . . . computer forensics," and

that, based on Cen's and Lang's respective expertise "and the fact

that they dealt with . . . [computer evidence] hundreds of times

and ... testified as to where it was manufactured," there was

sufficient     evidence       for    the    jury    to    consider    and    make    a

determination.        After a recess, the district court amended its

ruling denying the Crawford argument to add "that the nature of


8
   Rule 29 provides: "After the government closes its evidence or
after the close of all the evidence, the court on the defendant's
motion must enter a judgment of acquittal of any offense for which
the evidence is insufficient to sustain a conviction." Fed. R.
Crim. P. 29(a).
9
   A careful review of the record reveals that the labels affixed
to the computer components in question were not submitted into
evidence as separate items. Rather, they were attached to the hard
drive and webcam that were submitted. In fact, no one had mentioned
the labels until Acevedo brought them up in his Rule 29 motion.

                                           -8-
these [computer] labels is nontestimonial."                   It found that the

labels were "not made under circumstances [that] would reasonably

lead a reasonable person to infer that the statements in those

labels . . . would later be used at a trial for purposes of

prosecuting [Acevedo]."        After closing arguments, the trial court

once again addressed the Crawford issue and noted that, although

Acevedo had not made a contemporaneous objection at the time of

Cen's and Lang's testimonies, it would "for all purposes" consider

Acevedo's "argument as though it had been made at the time when

these witnesses testified or before that."

           On   July     8,   2010,    a    jury   convicted    Acevedo   of   the

underlying charge, i.e., violating 18 U.S.C. §§ 2251(a) & 2.                    He

was sentenced to twenty-five years imprisonment (to be served

concurrently with state sentences imposed in April and December of

2010) and a twenty-year term of supervised release.                  Judgment was

entered on March 2, 2011.        This timely appeal followed.

                               II.    Discussion

           Acevedo limits his arguments on appeal to contending that

the Government's proof regarding the jurisdictional element of 18

U.S.C. §§ 2251(a) was comprised of testimony based on inadmissible

hearsay.   He   argues    that   the       testimonies   of    the   Government's

witnesses regarding the origin of the hard drive and the webcam

constituted     inadmissible     hearsay       because    it    relied    on   the

statements contained in the labels affixed to the same.                   Acevedo


                                       -9-
posits that, by admitting the testimonies of the Government's

witnesses, the trial court violated his Sixth Amendment rights as

articulated in Crawford v. Washington, 541 U.S. 361 (2004).

           As a threshold matter, Acevedo contends that de novo

review is warranted because he made a Confrontation Clause argument

during his Rule 29 motion.10 However, the proper standard of review

is plain error since Acevedo failed to contemporaneously object to

the testimonies in question and he concedes as much in his brief.

See United States v. Rodríguez, 525 F.3d 85, 95 (1st Cir. 2008)

(plain error review applies where defendant failed to object on

hearsay grounds); United States v. Luciano, 414 F.3d 174, 178 (1st

Cir.   2005)   (same   for   failure   to   raise   Confrontation   Clause

objection).    Even though, after closing arguments, the trial court

revisited the Confrontation Clause argument posed by Acevedo,

stating that it would "for all purposes" consider his "argument as

though it had been made at the time when these witnesses testified

or before that," the lack of a timely objection cannot be cured by

a trial court's ruling to the contrary. In this Circuit, "the

contemporaneous objection rule is, for the most part, strictly

enforced," and "a belated objection does not cure the original

default." United States v. Houlihan, 92 F.3d 1271, 1298 (1st Cir.




10
   We note that Acevedo does not appeal the denial of his Rule 29
motion. He challenges his conviction instead.

                                   -10-
1996)(internal citations omitted). Therefore, plain error review is

proper.

           To establish plain error, Acevedo 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) (quoting United

States v. Olano, 507 U.S. 725, 732 (1993)).           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) (quoting Johnson v. United States, 520 U.S. 461,

467 (1997)). "[T]his inquiry is substantially similar to the

standard we follow in harmless error analysis, with the added

wrinkle that the petitioner, not the Government, bears the burden

of   persuasion   with   respect   to   prejudice."   United   States   v.

Rodríguez-Adorno, No. 11-1034, slip op. at 8 (1st Cir. Sept. 12,

2012) (quoting United States v. Vázquez-Rivera, 665 F.3d 351, 363

(1st Cir. 2011)) (additional citation omitted).

           Now, in tackling Acevedo's claims, we note that he

concedes in several portions of his brief that the witnesses in

this case relied on their expertise when testifying about the

origins of the computer components.         He directly states, "[t]he

other source of their testimony came from their years of experience

with the make and model of the [equipment]."          Acevedo goes even


                                   -11-
further:    "[a]ssuming    that    the   computer   label    is   a   hearsay

exception . . . , [Cen] and Lang provided testimony that did not

come from the information in the label, the source came from their

'expertise' which allowed them to recognize the make and model and

from there conclude that that type and model was manufactured [out-

of-country] and therefore shipped in foreign commerce."            (Emphasis

added).     This concession -- that the witnesses relied on their

expertise    to   assess   the   equipment's   possible     passage   through

interstate commerce -- dooms Acevedo's hearsay claim.             See United

States v. Martínez-Medina, 279 F.3d 105, 125 (1st Cir. 2001)

(finding that the concession regarding drug quantity made by a

defendant in a brief before this court was "fatal to his claim of

error").

            Moreover, not only does Acevedo concede that Lang could

have relied on his expert testimony, but it is also clear from the

record that Lang's training and qualifications more than allowed

him to testify as to the origin of computer components with which

he had logged years of experience, and as to which he both

conducted and trained others in forensic examinations of the same.

A review of his testimony permits a reasonable inference that he

relied only on his own expert judgment in concluding that the

components had been made in Korea           and China.        In fact, his

testimony states that he personally worked with the hard drive and

the webcam in question during the investigation.                  His direct


                                    -12-
contact with the objects and his expertise would have allowed him

to form an opinion about their origin through a comparison of his

observations with his prior experiences evaluating such equipment.

               Given that we conclude that Lang could plausibly have

relied on his own expert knowledge rather than the labels, we need

not   determine      whether    reliance       on    labels      to   establish    the

jurisdictional element of a crime would be permissible or whether

the labels themselves are admissible or testimonial.                    Such is not

the case before us, and we leave those difficult questions for a

future challenge, adequately brought and preserved.

               Evidently, the Government could have directly asked Lang

about    the     basis   for   his     opinion      that   the    components      were

foreign-made.       However, the absence of that foundation does not

have,    as    Acevedo     contends,    the    consequence       of   rendering    his

conviction reversible.         Lang's uncontested expert testimony alone

would have allowed the jury, after weighing it and giving it the

credibility it deemed proper, to conclude that the Government had

proven the jurisdictional element of the case beyond a reasonable

doubt.    We thus find no plain error.

                                III.    Conclusion

               Based on the reasons discussed above, we affirm the

judgment of the district court.

               Affirmed.




                                        -13-
