First Circuit Rules Evidence of Interstate Child Pornography Crime Was Not Hearsay – U.S. v. Acevedo-Maldonado

October 23, 2012 by David S. Seltzer

Criminal defense law gives defendants several important civil rights, in an effort to prevent false convictions. One of them is the right not to have evidence presented against you by hearsay, which means testimony that is secondhand. That is, the person testifying must be testifying as to events seen firsthand; merely reporting on what others said is hearsay. Hearsay is not admissible in court because it violates the defendant’s right to confront his or her accuser under the Sixth Amendment. In United States v. Acevedo-Maldonado, Joseph Acevedo-Maldonado challenged the evidence that he had shipped child pornography across state or national lines as hearsay; the evidence derived from labels on a hard drive and webcam. The First U.S. Circuit Court of Appeals ultimately decided this was not hearsay.

Acevedo was convicted of producing, and aiding and abetting in the production of, materials showing a minor engaged in sexually explicit conduct. Police in Utuado, Puerto Rico, searched his home and his mother’s home for computer equipment and found a webcam; they later found his computer at his sister’s home. Immigration and Customs Enforcement later examined the seized equipment and found five videos on the hard drive that were produced by the webcam; all five showed an adult male, later alleged to be Acevedo, having sex with a young girl. At trial, forensic experts for the government testified that the hard drive and webcam were made overseas (in Korea and China, respectively). Acevedo moved at the end of trial for a judgment of acquittal, arguing that the only evidence of this being an interstate crime was the labels showing the overseas manufacture of the webcam and hard drive. This, he said, was hearsay and thus inadmissible, meaning the interstate aspect of the crime was not proven. The district court denied the motion.

After his conviction and sentencing to 25 years in prison, Acevedo appealed. He argued that the witnesses testifying that the equipment was foreign-made was hearsay because it was based solely on the labels on the equipment. Because Acevedo failed to object to the testimony at the time it was made, the First Circuit reviewed only for plain error. Unfortunately for Acevedo, the court concluded that his own briefs “doom” his argument by acknowledging that the testimony came in part from the witnesses’ expertise. Furthermore, the appeals court said, it is clear from the record that one witness had the training and experience to testify as to their origins without relying on the labels. Because that witness could have relied on his own expertise, the court said, there was no need to determine whether it was incorrect to rely on the labels to establish the interstate nature of the crime. The prosecution’s failure to ask the witnesses about the basis of his opinion did not make the conviction reversible, the court concluded. Thus, it affirmed the district court.

This case is interesting because very few defendants challenge the interstate or international aspect of federal child pornography production crimes; most cases are pretty clear because they involve distributing it over the Internet. In this case, it appears that the crime was only federal because the equipment used to commit it was shipped internationally. This may not be what most defendants think of when they think of international crimes (after all, the vast majority of computer equipment is manufactured overseas), but it’s another signal that defendants accused of serious cyber crimes can expect to be prosecuted federally if federal prosecutors are interested in taking the case. Though federal law is considered harsher, a state-law prosecution is not considered a cakewalk; you also face long sentences for a Florida state conviction for child pornography crimes.

If you’re being prosecuted—in federal court or in any state court in the United States—for serious crimes involving computers, the Internet or sexual acts with minors, don’t hesitate to call the experienced defense attorneys at Seltzer Law, P.A. For a free, confidential consultation, call us 24 hours a day and seven days a week at 1-888-THE-DEFENSE (1-888-843-3333) or send us an email.

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