United States Court of Appeals For the First Circuit

No. 18-2013

UNITED STATES OF AMERICA,

Appellee,

v.

YAIRA T. COTTO-FLORES,

Defendant, Appellant.

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

[Hon. Daniel R. Domínguez, U.S. District Judge]

Before

Howard, Chief Judge, Torruella and Thompson, Circuit Judges.

Luis Rafael Rivera-Rodríguez, with whom Allan Amir Rivera- Fernández was on brief, for appellant. Julia M. Meconiates, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

August 10, 2020 THOMPSON, Circuit Judge. Once again, we are called upon

to explain how a federal government in which Puerto Ricans have no

vote may regulate them more extensively than it can most every

other American citizen. Bound by our precedent, here we go.

One fateful day in March 2015, Yaira Taines Cotto-

Flores, then a 26-year-old English teacher, drove a 14-year-old

student to a motel in San Lorenzo, Puerto Rico and had sex with

him. That was a crime. See

, 4772.

And to anyone familiar with our federal system of government, which

trusts the states to handle most local criminal offenses (and

thereby protects their citizens from federal overreach), it might

have seemed like a case for Puerto Rico to prosecute and punish.

After all, "[p]erhaps the clearest example of traditional state

authority is the punishment of local criminal activity." Bond v.

United States,

(2014). By limiting federal

jurisdiction over local criminal conduct, and leaving room for

state prosecutors to exercise discretion, the Constitution not

only protects states' "sovereign" policy choices; it safeguards

"the liberty of the individual from arbitrary power."

at 864–

65. It gives people "within a State" the right to be free from

federal prosecution for "laws enacted in excess" of Congress's

delegated "governmental power[s]," Bond v. United States,

(2011), powers that are carefully "limited" within

the fifty states, United States v. Morrison,

,

- 2 - 618 (2000) ("The regulation and punishment of intrastate violence

that is not directed at the instrumentalities, channels, or goods

involved in interstate commerce has always been the province of

the States."). But not in Puerto Rico.

As the Supreme Court frequently reminds us, Puerto Rico

is not a "State" but part of the "Territory or other property

belonging to the United States." Harris v. Rosario,

(1980) (quoting U.S. Const., Art. IV, § 3, cl. 2) (emphasis

added). For that reason, in important ways, the U.S. government

can treat the island and its residents differently. See id.;

Puerto Rico v. Shell Co.,

(1937) (citing Balzac

v. Porto Rico,

(1922)); Franklin Cal. Tax-

Free Tr. v. Puerto Rico,

, 344–45 (1st Cir. 2015); see

also below at 64-67 and cases cited. Unfortunately for Cotto,

that's just what happened here.

After an investigation, federal prosecutors charged

Cotto in the United States District Court for the District of

Puerto Rico with transporting a minor "in interstate or foreign

commerce, or [as relevant here] in any commonwealth, territory or

possession of the United States" with the intent to engage in

criminal sexual activity — a federal crime under the Mann Act of

1910 (as amended) that carries a mandatory minimum sentence of ten

- 3 - years in prison.

(a).1 Cotto was tried, convicted,

and sentenced to ten years in federal prison. She now appeals.

She makes four main arguments. First, she contends that

§ 2423(a), like its counterpart covering adult victims, see United

States v. Maldonado-Burgos,

, 349–50 (1st Cir. 2016)

(construing

(a)), only applies to transportation

in "interstate or foreign commerce" with respect to Puerto Rico

(that is, to travel to or from the island); and since she never

left Puerto Rico with the victim, the drive wasn't a federal crime.

Second, even if § 2423(a) covers intra-Puerto Rico travel, there

was insufficient evidence to prove she drove the victim anywhere

— even within Puerto Rico. Third, the judge confused the jury by

explaining the elements of the Puerto Rico crimes (of "sexual

assault" and "lewd acts") the government alleged she'd intended to

commit at her destination. And fourth, the judge should not have

let the victim testify by two-way videoconference, which violated

Cotto's Sixth Amendment right to confront her accuser in person.

1 In a related case heard on the same day as this one, see United States v. Montijo-Maysonet, No. 18-1640, defense counsel reported that Puerto Rico is the only place where the government has prosecuted wholly local conduct like Cotto's under § 2423(a), based on her search of the judiciary's Public Access to Electronic Records system. When we followed up during oral argument in this case, the government responded that it was not aware of any such case brought in any other United States territory outside of Puerto Rico.

- 4 - Here are the spoilers. We disagree with all but one of

Cotto's gripes. Namely: § 2423(a)'s ban on transporting a minor

to commit a sex crime, unlike § 2421(a)'s general prohibition,

applies to transportation within Puerto Rico, which is a

"commonwealth . . . of the United States" under the statute; there

was ample evidence to find Cotto guilty; and the judge properly

instructed the jury on the local crimes Cotto allegedly drove the

victim to the motel to commit. However, we hold that the judge

violated Cotto's Sixth Amendment right to in-person confrontation

when he allowed the victim to testify by two-way close-circuit

television ("CCTV") under a misreading of Maryland v. Craig,

, 855–56 (1990), and without making the specific "on the

record" findings that

(b)(1)(C) and Craig require.

On these unique facts, we conclude that the appropriate remedy is

to reverse Cotto's conviction and remand for a new trial.

HOW WE GOT HERE

The Crime2

Cotto started teaching at Escuela Manuel Torres

Villafañe, a public school in San Lorenzo, Puerto Rico, in August

2015. Before long, other teachers started to notice that a 14-

year-old ninth grader — we'll call him "YMP" — wasn't finishing

2 Since Cotto makes a sufficiency challenge, we tell the story from the government's perspective so far as the evidence reasonably supported the inferences the government draws. See United States v. Tanco-Baez,

(1st Cir. 2019).

- 5 - his schoolwork and would often skip class to spend time alone with

Cotto. One day, a teacher walked by Cotto's classroom and saw her

alone with YMP holding hands. As it turns out, that was the tip

of the iceberg. By November, Cotto and YMP were messaging each

other constantly through WhatsApp (the smartphone application).

Cotto told YMP that she loved him, that "if you were older, I would

already be by your side," and proposed that they have sex. In

January, she planned how to do it without getting caught: "I

prefer to go into that motel than out front in the car because

it's not safe," she wrote. She told him she'd take steps to make

sure she didn't get pregnant. She also bought him gifts — facial

creams and an expensive watch for Valentine's day — and left love

notes in his school bag. All the while, Cotto stressed the need

to keep their relationship hidden. "I have left a lot for you,"

she messaged him, "and risk myself every day, to losing even my

job." "We have to hide babe" (she wrote); "[i]f your mom makes a

complaint, well, then the biggest scandal in the world explodes."

On February 3, 2016, they went to a nearby motel and had sex for

the first time.

A month later, on March 1, 2016, YMP told a school staff

member that he needed to leave early to go to the barbershop and

his grandmother's house. In reality, just after noon, he walked

to the restaurant La Casa de Abuela (which, to be fair, translates

to "Grandmother's House"), where he and Cotto had planned for her

- 6 - to pick him up. YMP testified that about five minutes after he

got to the restaurant, Cotto arrived in her gray Kia Rio, YMP got

into the passenger seat, and they drove to Motel Oriente. When

they got there, Cotto drove into the carport and paid through a

window. They went to a room on the second floor and had sex.

Meanwhile, tipped off that something was up, the school social

worker and a volunteer went to the barbershop and YMP's

grandmother's house and learned that YMP hadn't been to either.

Around three hours later, Cotto dropped off YMP on a road near the

restaurant and he walked back to school, where the principal and

YMP's mother were waiting for him. Initially, YMP told those

adults and his friends that he hadn't been with Cotto that day.

But later, YMP revealed that he had been.

The Trial

Cotto was charged under

(a), which (along

with §§ 2421–24) codifies the Mann Act of 1910, Pub. L. No. 61–

277, § 2,

(1910), as amended in the Protection of

Children from Sexual Predators Act of 1998, Pub. L. No. 105–314,

§ 103,

, 2976 (1998) (the "Protect Act").3 Section

2423(a) provides that anyone "who knowingly transports" someone

under eighteen years old "in interstate or foreign commerce, or in

3 We chronicled the post-1910 amendments to the Mann Act in Maldonado-Burgos,

n.3.

- 7 - any commonwealth, territory or possession of the United States

with intent that [the minor] engage in prostitution, or in any

sexual activity for which any person can be charged with a criminal

offense, shall be fined . . . and imprisoned not less than 10 years

or for life."

(a). Cotto twice moved to dismiss

the indictment, arguing both times that § 2423(a) requires

transportation across state or territorial lines and doesn't cover

trips from one place to another within Puerto Rico. But the judge

denied both motions, finding that Puerto Rico is a "commonwealth"

within the meaning of the Act. See United States v. Cotto-Flores,

No. Cr. 16-206,

, at *2–3 (D.P.R. Oct. 5, 2016).

Having upheld the indictment, the judge set the case for trial.

Several days before trial, the government filed a motion

to have YMP testify by two-way closed-circuit television ("CCTV")

under

(b) (permitting that procedure if the

government shows the victim can't testify in the defendant's

presence "because of fear" or because expert testimony has

established a "substantial likelihood" (s)he "would suffer

emotional trauma from testifying," among other reasons).4 Cotto

4Section 3509(b)(1)(D) describes how the procedure works: essentially, it's a two-way videoconference. The witness, the prosecutor, and the defendant's attorney go to a separate room, while the judge, jury, and defendant stay in the courtroom. The attorneys for each side then question the witness in the separate room (conducting direct and cross examination) while a camera transmits the live video/audio feed of the minor to a

- 8 - opposed the request, arguing that remote testimony wasn't

necessary and would violate the Sixth Amendment Confrontation

Clause; in her view, YMP had to testify in open court in Cotto's

presence. But the judge disagreed. Long story short (we'll give

you the details when the time comes), after interviewing YMP in

chambers, the judge found YMP would be unable to testify in court

in front of Cotto, granted the government's motion, and permitted

YMP to testify via two-way CCTV.

So at trial, the Assistant United States Attorney

("AUSA" for short) and Cotto's attorney questioned YMP in a

separate room, with his testimony streamed via CCTV to Cotto, the

judge, and the jury in the courtroom. See

(b)(1)(D). YMP could see Cotto and she could see him. See

He testified to the WhatsApp messages, his relationship with

Cotto, the trip to the motel, and the sex. In her defense, Cotto

called one of YMP's classmates, who testified that he saw YMP leave

school that day and get into a white car, not Cotto's car. But

based on YMP's testimony, along with that of two other teachers,

a school volunteer, the school social worker, the school director,

monitor/speaker in the courtroom, where the defendant, judge, jury, and the public can see and hear the minor testify.

Meanwhile, thanks to another camera in the courtroom, the minor can see a live video stream of the defendant (on a monitor in the separate room) and hear the judge through a speaker while (s)he testifies.

The defendant must also be given a way to privately communicate with his defense attorney during the testimony.

- 9 - YMP's mother, and several government investigators, the jury found

Cotto guilty.

After the last government witness, then again after the

guilty verdict, Cotto moved for a judgment of acquittal under Rule

29 of the Federal Rules of Criminal Procedure. She repeated her

claim that § 2423(a) requires the defendant to have transported

the minor across state or territorial lines, and she urged that

even if § 2423(a) applied to drives from here to there within

Puerto Rico, there was no evidence Cotto drove YMP to the motel as

charged. The judge denied those motions and sentenced her to the

mandatory minimum of ten years in prison. Needless to say, Cotto

appealed.

ANALYSIS

Applying § 2423(a) within Puerto Rico

On appeal, as she did below, Cotto first argues that her

case should never have gone to trial because § 2423(a) does not

apply to the conduct she was charged with — transporting a minor

within Puerto Rico to commit a sex crime. In the fifty states,

that section only applies if the defendant transported the victim

"in interstate or foreign commerce." In Cotto's view, the same is

true in Puerto Rico, which is (since 1952) a "self-governing

Commonwealth" vested with "state-like autonomy." United States v.

Maldonado-Burgos,

, 348–50 (1st Cir. 2016) (first

quote quoting Puerto Rico v. Sánchez Valle,

, 1874

- 10 - (2016)). In fact, she reminds us, in Maldonado-Burgos, we held

that another section of the Mann Act (

(a), which

penalizes transporting anyone "in interstate or foreign commerce,

or in any Territory or Possession of the United States" to commit

a sex crime) did not apply to travel within Puerto Rico. 844 F.3d

at 349–50. Cotto urges us to read § 2423(a) in the same way. If

she's right, then the judge should have dismissed the indictment,

which never alleged Cotto took YMP beyond Puerto Rico. On the

other hand, the government insists the plain text of § 2423(a)

(which covers the transportation of a minor "in any commonwealth,

territory, or possession of the United States" to commit a sex

crime) shows that unlike its more general cousin, § 2423(a) covers

intra-Puerto Rico transportation.

Despite Cotto's objections, we have to agree with the

government. Cotto has this much right though: given its promise

to grant Puerto Rico state-like status, we don't lightly conclude

that Congress intended to exercise a police power — like the power

to define, prosecute, and punish local crime — in Puerto Rico that

the law elsewhere reserves for state governments. See Cordova &

Simonpietri Ins. Agency Inc. v. Chase Manhattan Bank N.A.,

(1st Cir. 1981); see also Morrison,

("Indeed, we can think of no better example of the police power,

which the Founders denied the National Government and reposed in

the States, than the suppression of violent crime and vindication

- 11 - of its victims."). In this case, however, the plain words of the

Protect Act (which amended § 2423(a) to specifically add the word

"commonwealth"), compel that conclusion. So unlike § 2421(a),

§ 2423(a) applies to a defendant who transports his or her victim

wholly within Puerto Rico.

Like any question of statutory interpretation, whether

and how a statute applies to Puerto Rico depends not only on the

"words in the statute," but also "the context, the purposes of the

law, and the circumstances under which the words were employed."

Maldonado-Burgos,

(quoting Cordova,

). So here, as in Maldonado-Burgos, Puerto Rico's transition

into a "self-governing Commonwealth" sets the stage for our

analysis.

at 340–41. To start then, we'll retrace that

historical current and reinforce the strong tug it exerts against

the government when it claims that a federal law regulates conduct

in Puerto Rico that the law doesn't reach in the states. See

at 342–43 (citing Cordova,

). With that background

in place, we'll come back to the statute's text.

Puerto Rico's Commonwealth Status under Federal Statutes

Before Puerto Rico became a "commonwealth," that is, for

its first fifty-four years as a United States territory, its

internal affairs were almost entirely "subject to the command of

Congress," Cordova,

, and a local government largely

run by federal appointees, see Sánchez Valle,

.

- 12 - Starting in 1900 (under the Foraker Act), "[t]he U.S. President,

with the advice and consent of the Senate, appointed the governor,

supreme court, and upper house of the legislature," although "the

Puerto Rican people elected the lower house themselves."

Over

time, Congress gave the Puerto Rican people limited self-

government over local affairs but kept a firm grip on levers of

colonial control. See Cordova,

. In 1917, the Jones

Act granted Puerto Ricans U.S. citizenship and the right to elect

both houses of the local legislature. See Sánchez Valle,

. But the U.S. President still appointed the

territory's most powerful executive and judicial officers

(including the governor, the attorney general, the commissioner of

education, and the justices of the Puerto Rico Supreme Court);5

and federal law required the Puerto Rican legislature to report

all its acts to the federally-appointed governor and to Congress,

which could veto them. See Cordova,

; Jones Act of

1917, §§ 12–13, 34, 40,

, 960–61 (Mar. 2, 1917).

Moreover, "in cases of conflict, Congressional statute, not Puerto

5 In 1947, Congress amended the Jones Act to let Puerto Ricans elect the governor "and granted that Governor the power to appoint all cabinet officials," but the United States "President retained the power to appoint (with Federal Senate confirmation) judges, an auditor, and the new office of Coordinator of Federal Agencies." Fin. Oversight & Mgmt. Bd. for Puerto Rico v. Aurelius Inv., LLC,

(2020) (citing Act of Aug. 5, 1947, ch. 490, §§ 1, 3,

, 771).

- 13 - Rico law, would apply no matter how local the subject." Cordova,

(citing the Jones Act, §§ 37, 57, 39 Stat. at 964,

968).

The tectonic plates shifted in 1950, which marked "a

significant change in the relation between Puerto Rico and the

United States." Id. That year, under mounting pressure from

Puerto Rico's leaders and the international community, Congress

authorized Puerto Rico to call a convention to draft its own

constitution, which would take effect when ratified by popular

referendum in Puerto Rico and approved by Congress. See Act of

July 3, 1950, Pub. L. 600, § 1,

("[F]ully recognizing

the principle of government by consent, this Act is now adopted in

the nature of a compact so that the people of Puerto Rico may

organize a government pursuant to a constitution of their own

adoption."). Two years later, when Congress approved the new

constitution, it repealed the inconsistent provisions in the Jones

Act and rechristened the remainder the Puerto Rico Federal

Relations Act (the "PRFRA"), which (along with the U.S.

Constitution) is now the cornerstone of the island's legal

relationship with the federal government. See

§§ 4, 5, 64

Stat. at 320. Puerto Rico thus emerged from the process "a new

kind of political entity, still closely associated with the United

States but governed in accordance with, and exercising self-rule

through, a popularly ratified constitution." Sánchez Valle, 136

- 14 - S. Ct. at 1874. Or as we've put it, "Puerto Rico's status changed

from that of a mere territory to the unique status of

Commonwealth": the name the new constitution and the statute

approving it gave the new polity. Cordova,

; see

P.R. Const. art. I, § 1 ("The Commonwealth of Puerto Rico is hereby

constituted."); Act of July 3, 1952, Pub. L. 447,

(approving "the constitution of the Commonwealth of Puerto Rico").

The Puerto Rico constitutional convention chose that

label ("commonwealth") because in the delegates' view, it

reflected Puerto Rico's "legislative autonomy in local matters."

Cordova,

. As the convention explained:

the single word 'commonwealth', as currently used, clearly defines the status of the body politic created under the terms of the compact existing between the people of Puerto Rico and the United States, i.e., that of a state which is free of superior authority in the management of its own local affairs but which is linked to the United States of America and hence is a part of its political system in a manner compatible with its federal structure.

P.R. Const. Convention Res. 22 (P.R. 1952).

Congress ratified that understanding when it approved

the Puerto Rico constitution and passed the PRFRA, acts which

(according to the Supreme Court) "relinquished [Congress's]

control over [Puerto Rico's] local affairs" and granted the island

"a measure of autonomy comparable to that possessed by the States."

Sánchez Valle,

(quoting Examining Bd. of Eng'rs,

- 15 - Architects and Surveyors v. Flores de Otero,

(1976)); see also Calero-Toledo v. Pearson Yacht Leasing Co.,

(1974) (holding that Puerto Rico was a "State" under

the federal statute requiring that a three-judge panel convene to

consider any challenge to a state statute; reasoning that the

Commonwealth, like a state, is "sovereign over matters not ruled

by the [U.S.] Constitution," unlike "a territory whose local

affairs are subject to congressional regulation"); Cordova,

(reviewing the 1950–52 legislative history and

concluding that "Commonwealth represents the fulfillment of a

process of increasing self-government over local affairs by the

people of Puerto Rico" and an "end" to its "subordinate status").

And in 1953, the executive branch assured the United Nations that

Public Law 600, the PRFRA, and the Puerto Rico constitution gave

the new commonwealth the authority to respond to Puerto Rican

voices free from federal "interference with matters of local

government."6

6 In 1953, the U.S. State Department, seeking to have Puerto Rico classified as a "self-governing territory" (which freed the United States from certain international obligations with respect to the island), wrote in a memorandum to the United Nations that "Congress ha[d] agreed that Puerto Rico shall have, under [its] Constitution, freedom from control or interference by the Congress in respect of internal government and administration, subject only to compliance with applicable provisions of the Federal Constitution, the [PRFRA] and the acts of Congress authorizing and approving the Constitution, as may be interpreted by judicial decision." Cordova, 649 F.2d at 40–41 & n.28. And it assured the

- 16 - In at least one way, these broad brushstrokes exaggerate

the rights the 1950–52 Acts granted Puerto Rico and its people.

Under the U.S. Constitution, Puerto Rico is still a "Territory,"

meaning that Congress (acting under its power to "make all needful

Rules and Regulations respecting the Territory . . . belonging to

the United States," U.S. Const., Art. IV, § 3, cl. 2), "may treat

Puerto Rico differently from the States so long as there is a

rational basis for its actions." United States v. Vaello-Madero,

(1st Cir. 2020) (quoting Harris, 446 U.S. at 651–

52); Franklin Cal. Tax-Free Tr.,

(holding that

"the limits of the Tenth Amendment do not apply to Puerto Rico"

because it is "still constitutionally a territory" and its "powers

are not 'those reserved to the States' but those specifically

granted to it by Congress under its constitution" (quoting U.S.

Const. amend. X)). Before 1952, we held (following Supreme Court

precedent) that Congress may use that power under the Territory

Clause to regulate purely local crime or other internal affairs in

Puerto Rico that Congress could not reach in the states. See

members that "[t]hose laws which directed or authorized interference with matters of local government by the Federal Government ha[d] been repealed."

at 41 n.28. Presidents Truman and Kennedy made similar statements in other official memoranda. See

at 40–41 (quoting President Truman's recognition, in transmitting the draft constitution to Congress, that its approval would vest "full authority and responsibility for local self-government . . . in the People of Puerto Rico").

- 17 - Crespo v. United States,

(1st Cir. 1945). We

assume (because Cotto does not dispute) that even after 1952,

Congress may still regulate such intra-Puerto Rico conduct, even

if doing so would break the promises it made that year. See below

at 68-70; United States v. Lopez Andino,

, 1172–75

(1st Cir. 1987) (concluding that the Court in Harris "reaffirmed

the existence of Congress's post-1952 plenary power over Puerto

Rico pursuant to the Territory Clause," and the PRFRA is not a

true "compact" but "merely an Act of Congress" that "does not bind

future Congresses"). But see Fin. Oversight & Mgmt. Bd. for P.R.

v. Aurelius Inv., LLC,

, 1677–83 (2020) (Sotomayor,

J., concurring) (arguing that, to the contrary, the 1952

legislation may well have been a "compact" that may place limits

on Congress's power to regulate Puerto Rico).7

In other words, we need not decide whether the 1952

legislation restricts Congress's power to legislate in Puerto

Rico. Rather, "this case requires us [only] to answer a question

of congressional intent," Maldonado-Burgos,

: what

did Congress mean to do when it amended § 2423(a) to include the

7 Thus, in case there's any room for doubt, we need not and do not decide that the 1952 legislation constitutes a "compact" between the United States and Puerto Rico that differs from a regular statute; and we do not suggest that there is some basis other than the Territory Clause on which Congress may criminalize illicit transportation within Puerto Rico that does not affect interstate commerce. Contra below at 70.

- 18 - word "commonwealth"? So for present purposes, what's important is

that Congress's commitment in the PRFRA to give Puerto Rico state-

like autonomy in its local affairs, see Sánchez Valle,

, has at least the force of federal statute, see Lopez

Andino, 831 F.2d at 1174–75 (Torruella, J., concurring), subject

to repeal only by an express statement or clear implication in

later legislation, see Aurelius,

(Sotomayor,

J., concurring) (quoting Carcieri v. Salazar,

(2009)). That commitment (as we and the Court have construed it)

forms the backdrop against which Congress now legislates when it

comes to Puerto Rico and "informs Congress's intent" when it does

so. Jusino Mercado v. Puerto Rico,

(1st Cir.

2000).

Cordova/Maldonado-Burgos

That background plays an especially critical role when,

as here, we're asked to construe another federal statute "to

intervene more extensively into the local affairs of post-

Constitutional Puerto Rico than into the local affairs of a state."

Cordova,

. In such cases, we ask whether the "Act's

framers, if aware of Puerto Rico's current [post-]constitutional

status, would have intended it to be treated as a 'state' or a

'territory' under the Act."

. That assumption comes

with a corollary: that, if the enacting Congress was aware of

Puerto Rico's "commonwealth" status and long road to attaining it,

- 19 - it would have acted with an intent to "fulfill [its] promise" to

grant Puerto Ricans state-like self-rule free from the selective

intervention of a federal government they do not elect.8 Jusino

Mercado,

. With that pledge in mind, we do not read

statutes "to treat Puerto Rico in one way and the states in another

unless the language of [the] particular statute" or "some other

compelling reason" in its structure, context, or legislative

history demands that result.

(anchoring that rule in

§ 9 of the PRFRA,

, which we read to "advise[] us

with uncharacteristic bluntness that [Congress] does not intend a

generally applicable statute to regulate Puerto Rico to the full

extent allowed by the Constitution unless it either specifically

singles out Puerto Rico or imposes similar regulations on the

states"); see also Cordova,

(holding that "there

would have to be specific evidence or clear policy reasons embedded

in [a] statute to demonstrate" that Congress meant it to regulate

more local conduct in "post-Constitutional Puerto Rico" than it

does in the states).9

8 Despite Public Law 600's peon to "government by consent," Puerto Rican residents do not have voting representatives in Congress, which can nonetheless regulate them; and to boot, they cannot vote for President. See Igartúa de la Rosa v. United States,

(1st Cir. 2010).

9 Cordova established this framework in holding that the Sherman Antitrust Act did not apply to restraints on trade or commerce taking place wholly within Puerto Rico.

.

- 20 - In Maldonado-Burgos, we applied that test to § 2421(a)

(which bans the transportation of "any individual in interstate or

foreign commerce, or in any Territory or Possession of the United

States" to commit a sex crime) and held that after 1952, that

section no longer applies to travel wholly within Puerto Rico.

844 F.3d at 346–47. The government had indicted a man who

transported an 18-year-old woman with a severe mental disability

within Puerto Rico to engage in unlawful sexual activity. Id. at

340. The district court dismissed the indictment. Id. On appeal,

the government argued that the statute applied to Puerto Rico as

a "Territory or Possession" and covered transportation within it,

as we'd held in 1945. See id. at 342–43 (citing Crespo,

(holding that it could "not be doubted that [§ 2421(a)]

applie[d] to transportation within Puerto Rico," which was "a

territory within the meaning of the Act")). The government urged

that despite the intervening developments, Crespo still

controlled. We disagreed; rather, we held that Cordova "blazed a

trail" we had to follow. Id. at 340. As in Cordova, we asked the

question Crespo hadn't answered: whether "the Mann's Act framers,

if aware" of Puerto Rico's "post-Crespo transformation from a

[mere] United States territory to the 'self-governing

Commonwealth' it is today," "would have intended it to be treated

as a 'state' or 'territory' under the Act." Id. at 340, 347 (first

quoting Sánchez Valle,

; then quoting Cordova,

- 21 -

). Reviewing the statute's text, legislative

history, and the government's policy arguments (that human

trafficking is a "pervasive problem" in Puerto Rico), we

nonetheless found no "specific evidence or clear policy reasons

embedded in § 2421(a)" to show that its framers would have meant

to federalize the prosecution of local crime in the Commonwealth

of Puerto Rico. Id. at 347–50. Thus, we concluded that § 2421(a)

reaches "only transportation 'in interstate or foreign commerce'

with respect to the island." Id. at 350. In other words, § 2421(a)

reserves for Puerto Rico (as it does for states) the decisions of

when to prosecute, and how severely to punish, illicit

transportation that occurs wholly within its borders.

Section 2423(a)

In this case, Cotto urges us to extend Maldonado-Burgos

and hold that § 2423(a) also requires cross-border travel and

doesn't apply to drives from schools to motels within Puerto Rico.

As we outlined in Maldonado-Burgos, however, § 2423(a) defines a

separate crime against a distinct class of victims (minors) and

uses language different from § 2421(a)'s "to identify the

transportation covered." Id. at 351, n.11. Most damning, in 1998,

Congress amended § 2423(a) to cover illicit transportation "in any

commonwealth, territory, or possession of the United States." Id.

at 350 n.10 (quoting the Protect Act, Pub. L. No. 105–314, § 103,

- 22 -

, 2976) (emphasis added).10 When it did so (we must

assume), Congress was well "aware of Puerto Rico's [commonwealth]

status,"

, of Cordova, and of the parade of decisions in

which the District of Puerto Rico had exempted "'intra-

commonwealth' activities" from several important "statutes which,

by their terms, appl[ied] to 'intra-territory,' but not to 'intra-

state,' activities," Cordova,

& n.6, 42 (listing

decisions holding that the Federal Firearms Act, the Federal

Alcohol Administration Act, and the Sherman Act did not apply to

wholly local activity in Puerto Rico). See Guerrero-Lasprilla v.

Barr,

(2020) (explaining that courts

"normally assume that Congress is 'aware of relevant judicial

precedent' when it enacts a new statute" (quoting Merck & Co. v.

Reynolds,

(2010)).11 Against that background,

10 The Protect Act also amended § 2423(a) to increase the maximum penalty for violating that section and added enhanced penalties for repeat offenders. See Pub. L. 105–314, 112 Stat. at 2974. 11 Of course, being one circuit among many, we might not

normally assume that Congress has our caselaw in mind when it enacts legislation. As other circuits have recognized, however, given our jurisdiction over appeals from the District of Puerto Rico, our decisions have an outsized impact on how federal law applies to Puerto Rico. See Rodríguez v. P.R. Fed. Affairs Admin.,

(D.C. Cir. 2006) (adopting our reasoning in Jusino Mercado and considering us "the court most expert on Puerto Rico's status"); see also United States v. Laboy-Torres,

, 719 n.3 (3d Cir. 2009) (according our decisions concerning the application of federal statutes to Puerto Rico "great weight"). In addition, by 1998, Cordova (which was authored by then-Judge Breyer), had been around for a while, and the Supreme Court had

- 23 - there's only one plausible reason for the amendment: to remove

any doubt that § 2423(a) applied to the transportation of minors

in non-state "commonwealths" like Puerto Rico. See United States

v. Medina-Ayala,

(D.P.R. 2012) (concluding

that "[t]here could hardly be a clearer [indication] of purpose

than the specific addition of the word 'commonwealth' to the

existing language of the Mann Act").12

In her effort to resist that conclusion, Cotto makes two

main arguments. First, she suggests that Congress must expressly

call out "Puerto Rico" in the statute before we can read it to

treat the island differently from the states. But nothing in the

PRFRA, Cordova, or Maldonado-Burgos lets us disregard Congress's

cited it with approval to describe Puerto Rico's commonwealth status. See Rodríguez v. Popular Democratic Party,

(1982) (citing Cordova, 649 F.2d at 39–42).

12 Four states (Massachusetts, Pennsylvania, Virginia, and Kentucky) and the Commonwealth of the Northern Mariana Islands ("CNMI"), all share the same "commonwealth" prefix. But Cotto concedes that § 2423(a) doesn't cover transportation wholly within any state. And for good reason, she does not argue that Congress added the word "commonwealth" to single out the CNMI, which enjoys an arguably even stronger presumption than Puerto Rico's that Congress does not selectively intervene in its local affairs. See U.S. ex rel. Richards v. De Leon Guerrero,

, 754 (9th Cir. 1993) (explaining that when Congress "pass[es] legislation with respect to the CNMI" that "cannot also be made applicable to the several States[,] the Northern Mariana Islands must be specifically named therein for it to become effective in the Northern Mariana Islands" (quoting U.S.-CNMI Covenant, Pub. L. 94–241, § 105, 90 Stat 263, 264 (Mar. 24, 1976))).

- 24 - clearly-expressed intent because it failed to use those two magic

words.13 To the contrary, both decisions sought to "effectuate the

intent of the lawmakers" expressed in "the words of the statute"

and "the circumstances under which [they] were employed."

Maldonado-Burgos,

(quoting Cordova, 649 F.3d at

38). In those cases, unlike here, it was far from clear that the

operative text of § 2421(a) and the Sherman Act (reaching conduct

"in any territory or possession of the United States") was meant

to reach intra-commonwealth activity. And there was another,

plausible way to read that text: to apply only to pre-

constitutional Puerto Rico and other territories that hadn't

achieved state-like status. To resolve the ambiguity, we relied

on a background assumption about Congress's intent — that absent

"specific evidence" or "clear policy reasons" to the contrary,

13 Some laws — including the covenant between the CNMI and the United States — do say that Congress must recite certain words before its legislation can encroach on local sovereignty (among other sensitive areas). See De Leon Guerrero, 4 F.3d at 753–54 (quoting U.S.-CNMI Covenant, Pub. L. 94–241, § 105, 90 Stat 263, 264 (Mar. 24, 1976)). Per our higher-ups, statutes that require Congress to use such "express references" or "magical passwords" really create "less demanding interpretive requirement[s]" because they can't compel courts to "disregard [ ] the will of a later Congress" conveyed "either expressly or by necessary implication in a subsequent enactment." Dorsey v. United States,

(2012) (first quoting Lockhart v. United States,

(2005) (Scalia, J., concurring); then quoting Great N. Ry. Co. v. United States,

(1908)). So whether the 1952 Act could have required Congress to say "Puerto Rico" to regulate its local affairs implicates another question not briefed here: whether that legislation was more than an ordinary statute that Congress may repeal without Puerto Rico's consent.

- 25 - Congress would have meant to treat the Commonwealth like a state.

Maldonado-Burgos,

(concluding based on the "clear

congressional intent to grant Puerto Rico state-like autonomy"

that "the [Mann] Act's framers, if aware of Puerto Rico's current

constitutional status, would have intended it to be treated as a

'state'" and not a "territory" under § 2421(a) (quoting Cordova,

649 F.3d at 39) (relying on a "general Congressional intent to

grant Puerto Rico state-like autonomy" to reach the same conclusion

under the Sherman Act)); see also Jusino Mercado,

(explaining that was reasonable to assume Cordova's "default rule

. . . inform[ed] Congress's intent") (emphases all added).

But, when "Congress has made its [contrary] intent

clear," courts "must give effect to that intent," even if it defies

our settled expectations. Miller v. French,

(2000) (internal quotation marks omitted); In re Palladino,

, 59 (1st Cir. 2019) ("Absent [a] constitutional challenge,

when [we're] confronted with a clear statutory command . . . that

is the end of the matter." (citing TVA v. Hill,

(1978)). So when a statute like § 2423(a) clearly means to reach

more conduct in Puerto Rico than it does in the states, we have to

enforce it as written, even if it doesn't single out "Puerto Rico"

in so many words. See Dávila-Pérez v. Lockheed Martin Corp.,

, 467–68 (1st Cir. 2000)(construing the words "Territory

or Possession outside the continental United States," in light of

- 26 - the statutory context and legislative history, to cover Puerto

Rico); cf. Gregory v. Ashcroft,

, 460, 467 (1991)

(explaining that despite the rule that Congress must speak

"unmistakably" clearly to intrude on traditional state

prerogatives, the statute at issue did not have to "mention [state]

judges explicitly" to regulate their qualifications as long as it

was "plain to anyone reading the Act that it cover[ed] judges").

Cordova doesn't license us to nullify Congress's "commonwealth"

amendment; so we have to enforce its only reasonable meaning.

As her fallback, Cotto points to another clause in the

Protect Act,

(a), 112 Stat. at 2976,

codified at

, which triples the maximum penalty

for offenders who violate the updated Mann Act (§§ 2421–24) after

being convicted of a prior sex offense "under State law." Section

2426(b) provides that "in this section," the term "State" includes

"a State of the United States, the District of Columbia, and any

commonwealth, territory, or possession of the United States."

There you have it, says Cotto: by defining "commonwealth[s]" as

"states," § 2426(b) shows that Congress meant to treat Puerto Rico

like a state in § 2423(a). But § 2426(b) defines "commonwealth[s]"

as "states" only for the purposes of § 2426 — to broaden the reach

of the repeat-offender penalties. So Cotto can't use § 2426(b)'s

definition to narrow § 2423(a)'s plain meaning. Her concession

that Congress used the term "commonwealth" to refer to Puerto Rico

- 27 - elsewhere in the Protect Act only bolsters our conclusion that it

did the same in § 2423(a). See Envtl. Def. v. Duke Energy Corp.,

(2007) ("We presume that the same term has the

same meaning when it occurs here and there in a single statute.").

So, like every federal judge in District of Puerto Rico

to have addressed the question, we hold that § 2423(a) applies to

the transportation of a minor within Puerto Rico for the purpose

of committing a sex crime.14 Given that conclusion, the district

court did not err in denying Cotto's motion to dismiss the

indictment or her motions for judgment of acquittal based on the

lack of evidence that she took YMP outside Puerto Rico.15

14 See Santiago-Rivera v. United States, No. Cr. 14-742,

, at *2 (D.P.R. July 25, 2019); United States v. Greaux- Gomez,

(D.P.R. 2017); United States v. Montalvo-Febus,

(D.P.R. 2017); United States v. Montijo-Maisonet,

(D.P.R. 2017); United States v. Mercado-Flores,

(D.P.R. 2015), adhered to,

(D.P.R. 2015), and vacated on other grounds,

(1st Cir. 2017); Cotto-Flores,

, at *2–3; Medina-Ayala,

.

15 Cotto also urges that insofar as the statute covers transportation within Puerto Rico, it is unconstitutional because it exceeds Congress's power under the commerce clause. But "Congress does not plainly lack plenary power under the Territorial Clause to criminalize certain intra-jurisdictional activity in [Puerto Rico] simply because it may not do so under the Commerce Clause within the fifty states." United States v. Ríos-Rivera,

(1st Cir. 2019) (holding the district court did not plainly err in upholding § 2423(a) as a valid exercise of Congress's authority under the Territory Clause); Harris, 446 U.S. at 651–52 (holding that Congress may rely on the Territory Clause to "treat Puerto Rico differently from the States so long as there is a rational basis for its actions"). Cotto does not address

- 28 - Sufficiency of the Evidence

Cotto next argues that the government failed to prove

that Cotto "transported" YMP anywhere (nevermind outside Puerto

Rico). And even on our reading, the government had to prove that

Cotto "transport[ed]" YMP "in [the] commonwealth" as an element of

the offense.

(a). So as she sees it, even if we

view all the evidence in a light most favorable to the verdict (as

we must), the government's evidence lacked enough "bite" for a

reasonable jury to find "that the government proved each of the

elements of the charged crime beyond a reasonable doubt." Tanco-

Baez,

(quoting United States v. Lara,

(1st Cir. 1999)). If Cotto is right, then she'd be entitled

to a judgment of acquittal, not just a new trial. See Burks v.

United States,

, (1978) (holding that "the Double

Jeopardy Clause precludes a second trial once the reviewing court

has found the evidence legally insufficient").

Her problem is that YMP testified in clear terms that

Cotto picked him up at La Casa de Abuela and drove him to the Motel

these precedents or argue that § 2423(a) oversteps Congress's power to "make all needful Rules and Regulations respecting the Territory . . . belonging to the United States," U.S. Const., Art. IV, § 3, cl. 2. Nor does she develop any argument that the statute, as we've interpreted it, lacks a "rational basis" (which would violate the Equal Protection Clause) or violates a U.S.-Puerto Rico compact. As such, we cannot conclude in this case that Congress lacked the authority to regulate illicit transportation within Puerto Rico. See Ríos-Rivera, 913 F.3d at 43–44.

- 29 - Oriente to have sex. Cotto urges that YMP's testimony can't

sustain her conviction because she "impeached" him "extensively";

another student (called by the defense) testified that he saw YMP

get into a white car (Cotto's car was gray) that day, and on cross,

YMP admitted he lied to his mom and school staff about where he'd

disappeared to. But Cotto skates over the evidence that she

herself urged YMP to lie in order to hide their relationship from

his mother and school officials (and for obvious reasons). See

above at 6. Of course, the jury didn't have to find YMP lied at

trial simply because he'd fibbed to protect her two years earlier.

Anyway, when testing the sufficiency of the evidence, we do not

"assess the credibility of trial witnesses" or "resolve conflicts

in the evidence," United States v. Gaudet,

(1st

Cir. 2019) (quoting United States v. Hernández,

, 66

n.5 (1st Cir. 2000)); "that is a role reserved for the jury."

United States v. Kanodia,

(1st Cir. 2019)

(quoting United States v. Robles-Alvarez,

(1st

Cir. 2017)). And based on the evidence the government presented,

the jury was well within its rights to credit YMP's story of being

carted off by Cotto, which school staff (testifying that Cotto

left school early that day too), the WhatsApp messages, and the

motel records corroborated.

- 30 - Jury Instructions

Third, Cotto faults the judge for instructing the jury

about the crime of sexual assault under Puerto Rico law. Although

we need not reach this issue, since we ultimately remand for a new

trial, we address it to provide guidance on remand. See

Swajian v. Gen. Motors Corp.,

(1st Cir. 1990).

To recap, to show Cotto violated § 2423(a), the

government had to prove she transported YMP in Puerto Rico "with

intent that [he] engage in . . . sexual activity for which

[someone] can be charged with a criminal offense" (stress added).

And the judge told the jury precisely that, both before the trial

(in a set of preliminary instructions) and after the close of

evidence. He then explained:

Under the laws of Puerto Rico, criminal sexual activity includes the following conduct: One, when a person performs or provokes another person to perform an oral-genital act or vaginal or anal sexual penetration, whether genital, digital, or instrumental, if the minor has not yet reached the age of 16 at the time of the event; or, number two, when a person purposefully, knowingly or recklessly, without consummating the conduct defined in the point above, submits another person to an act that tends to awake, excite, or satisfy the passion or sexual desires of the suspect, if the minor has not yet reached the age of 16 at the time of the event.

Though the judge didn't name them, he was describing the offenses

of "sexual assault" and "lewd acts" under Puerto Rico law,

, 4772. He followed up by reminding the

- 31 - jury that the government need not prove Cotto committed those

crimes; only that she "intended" to do so.

Cotto argues that these instructions about Puerto Rico

crimes "unnecessarily confused [the jurors] by implicitly telling

them to convict based on sexual assault instead of transportation

of a minor," which she calls "a fatal flaw" in the trial that

unfairly "tipped the scale in favor of conviction."

We test such "preserved claims of instructional error

under a two-tiered standard: we consider de novo whether an

instruction embodied an error of law, but we review for abuse of

discretion whether the instructions adequately explained the law

or whether they tended to confuse or mislead the jury on the

controlling issues." United States v. Symonevich,

(1st Cir. 2012) (internal quotation marks omitted). The

instructions here correctly stated the law, and Cotto gives us no

reason to think they may have thrown off the jury. To know if

Cotto intended to commit "sexual activity for which any person can

be charged with a criminal offense,"

(a), the jury

had to know what kind of "sexual activity" constitutes a criminal

offense in Puerto Rico. See United States v. Dávila-Nieves,

(1st Cir. 2012) (upholding the judge's decision to

instruct the jury on the offense of sexual assault under Puerto

Rico law in a prosecution under

(a), which

prohibits enticing a minor to engage in "sexual activity for which

- 32 - any person can be charged with a criminal offense," because "where

a federal prosecution hinges on an interpretation or application

of state law, it is the district court's function to explain the

relevant state law to the jury" (quoting United States v. Fazal-

Ur-Raheman-Fazal,

(1st Cir. 2004)); United States

v. Rodríguez-Rodríguez,

(1st Cir. 2011) (reasoning

that "[i]n order for the jury to determine" whether the defendant

violated § 2422(b), "it had to be instructed on Puerto Rico law").

So, as the government notes, every circuit (including ours) with

a pattern jury instruction for offenses using the phrase "sexual

activity for which any person can be charged with a criminal

offense" tells the district court to insert the allegedly intended

criminal offense into the instruction and, in most cases, to

describe its elements.16 In this case, as in the cases just cited,

following that convention was not an abuse of discretion.

Testimony by Two-Way Television

However, Cotto's last challenge spells the end of the

government's winning streak. Specifically, she argues that the

judge violated her Sixth Amendment right to confront YMP in person

16 See First Circuit Pattern Criminal Jury Instructions § 4.18.2422(b) (instruction for enticement of a minor under

(b)); Fifth Circuit Criminal Jury Instructions § 2.91 (for enticement of a minor under § 2422(b)); Sixth Circuit Pattern Criminal Jury Instructions § 16.10 (for § 2423(a)); Seventh Circuit Pattern Criminal Jury Instructions for § 2423(a); Eighth Circuit Pattern Jury Instructions § 6.18.2423A (for § 2423(a)).

- 33 - when he permitted YMP to testify remotely through two-way CCTV.

See above n.4 (describing the procedure). We'll start with the

legal framework governing this claim before we explain how the

judge misapplied it here and why the slip warrants a new trial.

Law on Tele-Testimony

In the ordinary case, the Sixth Amendment to the

Constitution gives the defendant the right "physically to face"

the witnesses who testify against her. Coy v. Iowa,

(1988) (holding that placing a screen in front of two

child witnesses to block their view of the defendant while they

testified against him violated the Sixth Amendment). The idea is

that insisting that witnesses testify "in the presence of the

person [they] accuse" helps ferret out the truth and lowers the

risk of wrongful conviction.

. As the old wisdom goes,

it is "more difficult to tell a lie about a person 'to his face'

than 'behind his back.'"

("A witness 'may feel quite

differently when he has to repeat his story looking at the man,"

or woman, "whom he will harm greatly by distorting or mistaking

the facts.'" (quoting Zechariah A. Chafee, Jr., The Blessings of

Liberty 35 (1956)). And, "even if the lie is told, it will often

be told less convincingly" under the gaze of the defendant and

jurors who can see the fibber's demeanor with their own eyes.

(explaining that the Constitution prescribes face-to-face

confrontation as the best way to "confound and undo the false

- 34 - accuser" and "reveal the child coached by a malevolent adult,"

even if it might "upset" honest victims who take the stand to

implicate the guilty).

But, like the presumptions that underpin it, the

constitutional right to unscreened in-person confrontation has its

limits. See Craig,

(holding that defendants

do not have an "absolute right to a face-to-face meeting with

witnesses against them at trial"). The state also has a

"compelling" interest in protecting "minor victims of sex crimes

from further trauma and embarrassment."

at 852 (quoting Globe

Newspaper Co. v. Superior Court of Norfolk Cty.,

(1982)). So, in sexual abuse cases, when "necessary" to elicit a

minor victim's testimony without subjecting him or her to further

trauma, "at least where such trauma would impair the child's

ability to communicate," the court may allow the minor to testify

from another room through CCTV — that is, as long as the minor

still testifies under oath, subject to live cross-examination,

"and the judge, jury, and defendant are able to view (albeit by

video monitor) the demeanor (and body) of the witness as he or she

testifies." Id. at 851, 857.

"The requisite finding of necessity," however,

"must . . . be a case-specific one: The trial court must hear

evidence and determine whether use of the [CCTV] procedure is

necessary to protect the welfare of the particular child witness

- 35 - who seeks to testify." Id. at 855. That entails two key findings:

first, that the minor would be "traumatized, not by the courtroom

generally, but by the presence of the defendant" (since otherwise,

(s)he could testify "in less intimidating surroundings" with the

defendant present); and second, "that the emotional distress

suffered by the child witness in the presence of the defendant is

more than . . . mere nervousness or excitement or some reluctance

to testify." Id. at 856 (internal quotation marks omitted). The

Maryland statutory procedure challenged in Craig (as the state

court applied it) allowed testimony by CCTV if testimony "in the

presence of the defendant" would cause the child to "suffer[ ]

serious emotional distress such that the child could not reasonably

communicate." Id. at 858. The Supreme Court held that standard

passed constitutional muster. Id. After all, "where face-to-face

confrontation causes significant emotional distress in a child

witness, there is evidence that [it] would in fact disserve the

Confrontation Clause's truth-seeking goal." Id. at 857 (citing,

among other things, the Brief for American Psychological Ass'n as

Amicus Curiae, Maryland v. Craig,

, at 18–24 (1990)

("APA Brief") (discussing empirical evidence that a defendant's

physical presence can influence child sex abuse victims to give

less accurate, detailed, and complete testimony)).

In Craig's wake, Congress enacted

(b),

which sets out alternatives to in-person testimony in child sexual

- 36 - abuse cases. See Child Victims' and Child Witnesses' Rights Act

of 1990, Pub. L. 101–647, § 225,

, 4798 (Nov. 29,

1990). Among other things, the statute allows minor victims in

such cases to testify from a room outside the courtroom by two-

way CCTV if the court finds on the record "that the child is unable

to testify in open court in the presence of the

defendant . . . because of fear."

(b)(1)(B)(i).

Since Cotto raises both statutory and constitutional challenges

(and neither party distinguishes the two), we'll assume that the

statute requires at least what the Sixth Amendment does. In other

words, to satisfy § 3509(b)(1)(B)(i), the judge has to make "a

specific finding" that if the minor testified "in the presence of

the defendant" — even "in a less intimidating environment" —

(s)he'd feel fear so severe "that [(s)he] could not reasonably

communicate." Craig,

. Thus, "a generalized

finding that the child suffers from fear [is not] enough to trigger

closed-circuit testimony; the fear must be related to the prospect

of testifying in the presence of the defendant." 136 Cong. Rec.

H13288-02, H13296 (Oct. 27, 1990) (Statement of Rep. Edwards);

accord United States v. Garcia,

, 887–88 (9th Cir. 1993)

(concluding that Congress intended § 3509(b)(1)(B) to "codify[]

- 37 - the requirement in Craig that the child be unable to testify in

open court due to the presence of the defendant").17

Whether the trial judge made specific findings

"sufficient to permit the use of closed-circuit television

testimony . . . is a legal issue that we review de novo": that

is, without deference. United States v. Turning Bear,

, 735–36 (8th Cir. 2004). When the judge makes the required

findings, however, we review them for "clear error," United States

v. Cox,

(6th Cir. 2017) (citing Hernandez v. New

York,

(1991)), meaning we must defer to the

judge's findings unless "after whole-record review — we have 'a

strong, unyielding belief'" that the judge got the facts wrong.

United States v. Rivera-Carrasquillo,

(1st Cir.

2019) (quoting Toye v. O'Donnell (In re O'Donnell),

,

17 Since neither party makes an issue of them, we've made two more assumptions here. First, we assume without deciding that the test announced in Craig (which involved one-way CCTV through which the witness couldn't see the defendant) also applies to the two- way CCTV procedure, as most circuits have held. Compare United States v. Carter,

, 1207–08 & n.4 (9th Cir. 2018) with United States v. Gigante,

, 80–81 (2d Cir. 1999). Second, we assume (also without deciding) that the Supreme Court's later decision in Crawford v. Washington,

(2004), which overruled a key case Craig relied on, did not modify Craig itself. See Carter,

n.3 (holding that "while Craig and Crawford stand in 'marked contrast' in several respects, 'Crawford did not overturn Craig'" (quoting United States v. Cox,

, 492–95 (6th Cir. 2017) (Sutton, J., concurring)).

- 38 - 45 (1st Cir. 2013)). That doesn't mean we let the findings stand

whenever there's some evidence to support them. As the Court has

put it, "[a] finding is 'clearly erroneous' when although there is

evidence to support it, the reviewing court on the entire evidence

is left with the definite and firm conviction" the judge made a

mistake. Anderson v. City of Bessemer City, N.C.,

(1985) (quoting United States v. United States Gypsum Co.,

(1948)) (emphases ours). But as long as the judge's

finding is "plausible," we may not reverse it even if we're sure

that "had [we] been sitting as the trier[s] of fact, [we] would

have weighed the evidence differently."

at 573–74.

So meeting the "clear error" standard is "no easy task";

it's "not enough that a finding strikes us as possibly or even

probably wrong." Díaz-Alarcón v. Flández-Marcel,

,

312 (1st Cir. 2019). It has to be "wrong with the force of a

[five] week old, unrefrigerated, dead fish."

(quoting

O'Donnell,

). The bar is high for a reason. When

we review a transcript on appeal, we weren't there to see the

testimony unfold live; unlike the trial judge, we didn't "see [the]

witnesses face-to-face" or "appraise in person their demeanor and

inflection." United States v. Pérez-Díaz,

(1st

Cir. 2017) (quoting United States v. Guzmán-Batista,

(1st Cir. 2015)). We can't see the distress on someone's face,

or hear the stress in their voice, by reading their words in 12-

- 39 - point Courier New. And unlike us, trial judges "listen to

witnesses" and gauge their credibility "for a living." Díaz-

Alarcón, 944 F.3d at 311 (quoting Taglieri v. Monasky,

(6th Cir. 2018)). So unless "objective evidence . . .

contradicts a witness's story," or it's "so internally

inconsistent or implausible that no reasonable factfinder would

credit it," Pérez-Díaz,

(quoting Guzmán-Batista,

), a judge's choice to believe a witness "can

'virtually never be clear error.'" Cooper v. Harris,

(2017) (quoting Anderson,

).

With that high standard in mind, we turn to YMP's in-

chambers testimony and the judge's findings based on it.

YMP's Testimony

About a week before trial, the government filed a motion

to have YMP testify by two-way CCTV under § 3509(b). Cotto opposed

the request, arguing that remote testimony wasn't necessary and

would violate the Sixth Amendment. The court tabled the matter

until the day before YMP was set to testify. When the time came

on the fifth day of trial, the judge called a recess and

interviewed YMP in his chambers with his mother and both sides'

lawyers.

To begin, there were several rounds of questions: first

from the government (e.g., "Q: [H]ow do you feel [about]

testify[ing] in open court? A: Very bad."), then the defense,

- 40 - which sought to paint YMP as a high-functioning scholar-athlete

unaffected by Cotto's alleged crime: he had decent grades in

school (YMP agreed) and played on a traveling baseball team. But

on redirect, the government got back to the issue at hand. The

AUSA (that is, the attorney for the government) asked:

[AUSA]: How would you feel about seeing [Cotto] in court today?

A: Bad, uncomfortable.

[AUSA:] How bad and how uncomfortable?

A: Too much.

The Court: Would you be able to testify?

YMP: No.

At that point, Cotto's lawyer jumped back in; he pointed out that

"everybody is uncomfortable as a witness," and YMP had spoken in

public before — he'd given interviews on sports radio. YMP

admitted he had. But on the radio (YMP added), he'd been talking

about baseball; he hadn't had to discuss this case. So the

government followed up: "How would you feel if you were in that

same radio station speaking about what is happening today in

court?" "Very, very, very bad," said YMP. Then, the defense

attorney stepped in once more:

[Defense Counsel]: And you feel bad because you don't want to talk about personal things; is that correct?

A: Yes.

- 41 - [Defense Counsel]: But if you are compelled to do it and you have to testify, you will do it?

A: If I am compelled I wouldn't do it either.

[Defense Counsel]: If you are called as a witness for the prosecution, would you be conversant in answering her questions truthfully in open court?

A: No.

The Court: Why?

YMP: Because it's uncomfortable.

The Court: Well —

Cotto's lawyer cut in again: had the prosecution ever explained

"[t]hat it is a normal process for you to testify as a witness at

trial?" YMP was confused. "What do you mean, 'at trial'?" he

asked. That's when the judge painted the picture. At "a trial,"

he explained:

The Court: . . . there is a jury, and your mother and your father will be present, your lawyer will be present, the judge will be present, and the defendant . . . Yaira Cotto, she is entitled to be there. She is not going to be asking questions, but she is entitled to be there.

YMP: That wouldn't be the best.

The Court: Well, would you be able to testify? That's the issue.

YMP: No.

The Court: So you would not testify?

YMP: No.

[Defense Counsel]: May I ask something? Why? Why can't you do that?

- 42 - A: Because, no, I don't feel comfortable.

The Court: And why would you feel not comfortable?

YMP: Because I don't want to see her. I don't want to be there.

The Court: Would that cause you to lose your tongue? Is that what you're telling me?

YMP: Yes.

The Court: Why?

YMP: Because I don't want to testify with her there. I don't want to be uncomfortable.

At that point, the judge dismissed YMP and his mother to confer

with the lawyers.

"So counsel," the judge leveled (quoting from Craig),

"mere nervousness or excitement or some reluctance to testify is

not enough, but it has to be serious emotional distress such that

the child cannot reasonably communicate." On that score, the judge

was skeptical: YMP "seem[ed] to be in the middle[.]" So the

lawyers skirmished over whether YMP expressed "fear" of testifying

or just discomfort or "some reluctance" to do so. The judge noted

that YMP had "a change of face when he stated, kind of annoyed,

that he did not want to testify against her." The defense clapped

back that "that per se doesn't mean fear" — and even if YMP felt

fear, it would have to come from Cotto, and he hadn't said that he

feared her. The judge responded that "[t]he fear can be fear to

testify before a jury, fear to testify before other people, and

- 43 - fear to testify before the judge. There's many fears involved.

It's fear." Moving on, the judge had his clerk pull out a

dictionary to find synonyms for "fear" and asked the interpreter

how he'd translate them. Then, he called YMP back in to get more

specifics.

Using those synonyms for "fear," the judge asked YMP if

"testifying in this case [would] subject you to distress?" (YMP

said "yes"), "cause you to become agitated?" ("yes"), "cause

you . . . great distress?" ("yes"), and "cause you some sort of

apprehension or alarm?" ("yes").

The Court: And do you think — above all, do you think that this is fear that you would be — be causing yourself?"

YMP: Yes.

The Court: So all of those that I just stated, which is the one that really causes you to not be able to testify?

YMP: Seeing her, standing there; that I have never been there.

The Court: Have been where?

YMP: In the court.

On re-cross, Cotto's lawyer took aim at YMP's testimony that

"seeing [Cotto] standing there" caused him fear. He pointed out

that in a statement YMP wrote for investigators two years earlier,

YMP "didn't write that he was afraid of Mrs. Cotto." "No," YMP

admitted.

- 44 - [Defense Counsel]: Because you didn't feel afraid of her; is that correct?

A: No.

[Defense Counsel]: And today you don't feel any fear for her either?

A: I am not afraid, but I do feel uncomfortable when I see her.

. . .

[AUSA]: How would you feel if you have to testify in front of Mrs. Cotto today in court?

A: Super bad, as I said before.

[AUSA]: And when you say "super bad," could you describe to the judge, what does that mean?

A: That I am going to feel nervous, anxious.

[AUSA]: Do you want to see Ms. Cotto?

A: No.

. . .

The Court: Does that bring fear to you by the fact that she is there?

[YMP]: Yes.

Unsatisfied, Cotto's lawyer followed up a final time:

[Defense Counsel]: What type of fear? Explain to us what type of fear can come to you.

A: I don't want to see her because I don't feel good when I see her. I don't want to see her and — I don't want to see her.

[Defense Counsel]: Is that it? That's all the —

[AUSA]: Do you fear her looking at you?

- 45 - A: Not necessarily.

[AUSA]: What exactly do you fear?

[Defense Counsel]: Let the record reflect that he has remained silent.

The Court: No, let the record also reflect that he's become red in the face.

[Defense Counsel]: He is blushing.

The Court: Of course, he is blushing. Fine.

[Defense Counsel]: Okay. But does that mean fear?

[AUSA]: Yes. Yes.

[Defense Counsel]: He hasn't answered, Your Honor. The record should reflect that it's been almost 20 seconds and he hasn't answered.

The Court: He's been getting red.

[AUSA]: Let the record reflect, Your Honor, that we are talking with a 16-year-old minor.

The Court: He is still a minor. All right. Do we have any further questions?

They didn't.

Back in court, the judge granted the government's

motion. To start off, the judge "f[ound] that [YMP] demonstrated

reluctance to testify and [had a] frightened demeanor, as he

physically flushed (his face became red), his body choked, he

started moving his legs, and expressed that his chest was tight on

his left side by moving his right hand to his chest." After

describing YMP's testimony and noting that "the face-to-face

- 46 - confrontation requirement is not absolute" but "not easily

dispensed with" (quoting Craig), the judge then concluded:

As such, the Court determines that there is a necessity to protect the welfare of this particular child witness who has demonstrated physical effects of fear as the Court asked specific questions using different synonyms of the word "fear," as the victim stated to the Court on every synonym used that he would either not testify or was reluctant to testify in the presence of the defendant in accordance with the requirements of [§] 3509.

(emphasis ours). When the trial resumed, YMP testified by two-

way CCTV.

Our Take

Cotto argues that the judge failed to make the specific

findings § 3509(b) and Craig together require, and even if he made

the needed findings, the evidence didn't support them. Like Cotto,

we doubt that YMP's testimony was sufficient to justify the use of

CCTV. But we need not decide that issue — because in our view,

the judge's use of the wrong legal standard and inadequate factual

findings, set against the inconsistencies and gaps in the

evidentiary record, warrant a new trial in this case.

As we said up front, § 3509(b) and Craig together demand

more than a general conclusion that CCTV is "necess[ary] to protect

the welfare" of the witness; they demand (as relevant here) a

"specific finding" that the minor could not "reasonably

communicate" in the defendant's presence because of fear. Craig,

;

(b); see, e.g., Garcia, 7 F.3d at

- 47 - 888 (affirming use of CCTV based on judge's finding that "because

of [her] fear of the defendant," the victim's "testimony would not

be open, complete, and substantially helpful to the jury" if she

testified with him present). Here, the judge made no such finding.

Instead, his explicit findings concluded only "that [YMP]

demonstrated reluctance . . . to testify" and "demonstrated the

physical effects of fear" when the judge asked "specific questions"

using various synonyms for it (which YMP answered affirmatively).

But those "specific questions" were about "testifying in this case"

generally; they did not ask YMP how he felt about Cotto,

specifically. So the judge did not find that Cotto frightened YMP

or that her presence (as opposed to the daunting courtroom setting)

would make him "unable" to testify.

(b); see

Craig, 497 U.S. at 857–58 (explaining that "[t]he question of

whether a child is unavailable to testify . . . should not be asked

in terms of inability to testify in the ordinary courtroom setting,

but in the much narrower terms of the witness's inability to

testify in the presence of the accused"). As such, the judge did

not resolve the issues Craig made critical. See United States v.

Bordeaux,

(8th Cir. 2005) (holding the trial

court's finding "that [the child's] fear of the defendant was only

one reason why she could not testify in open court" was inadequate

because it "did not find that [her] fear of the defendant was the

dominant reason" she couldn't testify) (citing Turning Bear, 357

- 48 - F.3d at 737 (holding the trial court's finding that a "combination"

of factors frightened the victim came up short because it "failed

to separate out the effect on [the victim] of [the defendant's]

presence")).

The judge's remarks earlier in the hearing clue us in to

why he failed to make the needed findings. During the brief

intermission in questioning, the defense pointed out that the

government had to show "where [YMP's] fear comes from" (i.e., Cotto

herself) and argued that YMP did not fear Cotto ("I have a

statement from him here saying he is in love with the teacher, not

that he feared her," he proffered). But the judge dismissed that

argument, saying (incorrectly) that "the fear can be fear to

testify before a jury, fear to testify before other people, and

fear to testify before the judge," as long as it was "fear." In

other words, he overlooked Craig's demand for a showing that YMP

feared "the presence of the defendant" and not just the "courtroom

generally." Craig,

. Without that showing, CCTV

may not have been "necessary," since YMP could reasonably have

testified in "less intimidating surroundings" with Cotto there.

Id.18 The judge's misreading of Craig, and resulting failure to

18 For example, if the judge believed that the combination of the courtroom and the defendant's presence would interfere with YMP's testimony, he could have considered closing the courtroom to the public or permitting non-essential observers to watch from an overflow room. See

(e) (allowing the court to

- 49 - make the needed findings, undermines his conclusion that CCTV was

necessary. See Pullman-Standard v. Swint,

(1982) ("[I]f a district court's findings rest on an erroneous

view of the law, they may be set aside on that basis.").

Wait a second, says the government. In his oral

decision, the judge "noted YMP testified that he felt 'greatly

distressed and uncomfortable about testifying in court before the

Defendant.'" Appellee's Br. at 38. And he also said that YMP

"stated that he would be unable to testify if he were in front of

the defendant," not just in the courtroom generally. But as the

government implicitly concedes, while the judge may have "noted"

that YMP made those statements, he didn't find that either of them

were true. So, given the judge's earlier misstatement of the legal

standard, we can't conclude he was adopting YMP's statements

wholesale as his own findings of fact — at least not in this case,

where YMP's testimony about his feelings toward Cotto,

specifically, was equivocal at best.

close the courtroom to "all persons, including members of the press, who do not have a direct interest in the case" if open- court testimony "would cause substantial psychological harm to the child or would result in the child's inability to effectively communicate" and the order is "narrowly tailored to serve the government's compelling interest"); Craig,

(explaining that the court may exclude the "press and public" from the courtroom where the trial court makes "a case-specific finding that closure of the trial is necessary to protect the welfare of the minor" (citing Globe Newspaper Co., 457 U.S. at 608–09)).

- 50 - Indeed, a firm finding on the key issue — whether YMP

felt frightened and unable to testify because of Cotto, and not

just the crowded courtroom — was especially needed on this shaky

record. On that critical point, YMP never gave a clear answer.

Twice, it's true, the judge asked YMP if he "[w]ould . . . be able

to testify," and YMP said no. But both times, the judge was

following up on questions about how YMP would feel about testifying

in court, where (the judge made clear) "there is a jury, and

[YMP's] mother and [his] father would be present" as well as Cotto.

And when asked why he believed he wouldn't be able to testify, YMP

gave two reasons: that he didn't "want to see Cotto" and that he

didn't "want to be there" in court. A similar thing happened later

— after YMP agreed that "testifying in this case" would cause him

"fear" (and its synonyms). When the judge asked what "cause[d]

YMP" to be afraid and not "able to testify," YMP gave the same two

answers: one, "seeing [Cotto] standing there" and two, "that I

have never been there . . . in court." In other words, YMP never

singled out Cotto as the "dominant reason" he couldn't testify in

court. Bordeaux,

. So he never addressed whether

he could testify in a less stressful setting with Cotto in the

room. Craig,

. And no one ever asked.

Fighting on, the government points out that when the

judge asked YMP (albeit awkwardly) if "that brings fear to you by

the fact that [Cotto] is there?" YMP said yes. But it reads that

- 51 - statement in isolation — a luxury we don't have, see Anderson,

(tasking us to review "the entire evidence"). When

pressed to explain, YMP clarified (as he had before) that he just

didn't "want" to see Cotto because she made him "uncomfortable."

Of course, not wanting to see Cotto — or feeling "nervous,"

"anxious," and "uncomfortable" around her (like virtually all

witnesses do) — didn't mean she'd make him unable to "reasonably

communicate" his story to the jury. See Craig,

.

And here's the real killer: when the defense asked him point-

blank, YMP testified that he was "not afraid" of Cotto. With that

plain statement etched in the record, we doubt it could have borne

a finding that Cotto frightened YMP so much that she'd chill his

testimony. See United States v. Moses,

, 898–99 (6th

Cir. 1998) (reversing the judge's because-of-fear finding where

the child testified she was "not afraid of" the defendant but

didn't "want" to see him).

Let's be clear: we do not expect that child victims

will always (or even usually) be able to explain "what exactly"

they fear about testifying in the courtroom or give the clarity

Craig requires; and nor could we, when the whole point is to figure

out whether the witness can "reasonably communicate" in the

defendant's presence. Craig,

. But that's where

expert testimony (while not required, United States v. Rouse,

, 569 (8th Cir. 1997)) can help fill in the gaps. See

- 52 - Craig,

(noting that "expert testimony" had

"suggested that each child [victim] would have some or considerable

difficulty in testifying in Craig's presence"); Cox,

(affirming the use of CCTV where an expert witness examined

the child and gave "particularized" and specific testimony that

the defendant's presence would cause the child trauma and interfere

with their testimony); APA Br. at 24 (recommending that "multiple

sources of information, including expert testimony, should be

sought in making an individualized determination whether there is

a need to limit the defendant's right to face-to-face confrontation

when a particular child victim testifies"). In United States v.

Graham, for example, "the district court, on voir dire, found that"

the 17-year-old victim was "extremely nervous and uncomfortable

and fearful . . . and credited her statement that she was 'afraid'

of facing [her trafficker] in court."

(2d

Cir. 2017). Still, the Second Circuit wrote that "[t]hese

apprehensions of appearing for live testimony may fail to meet our

demanding constitutional standard absent specific indicia of the

emotional trauma the child witness would experience 'not by

[testimony in] the courtroom generally, but by the presence of the

defendant.'"

(quoting Craig,

). What tipped

the scales was a psychiatrist's finding (which the district court

credited) that the witness would "be unable to reasonably

communicate if forced to testify in the live presence of the

- 53 - defendant."

Here in contrast, the government did not enlist

an expert to examine YMP and help fill the holes or reconcile the

contradictions in his in-chambers testimony.19 And all told,

that's left us with too little to go on.

As a result, even if the district judge intended to find

that YMP was "unable to testify in front of [Cotto]," we could

"[ ]not on this record . . . sustain [that] finding" without more

explanation for how the judge arrived at it. United States v.

Oquendo-Rivera,

(1st Cir. 2009). Ordinarily, we

might not require a trial judge to explain why he found certain

facts, at least when "the basis is plain from the record."

That's especially true when it comes to "credibility," which (as

we've said) "is largely a matter for the fact-finder."

.

But that doesn't mean we can "insulate . . . findings from review

by denominating them credibility determinations[.]" Anderson,

. As the Supreme Court has explained, that's because

19 Just before YMP testified in chambers, the government did present an expert who testified outside the jury's presence on "the general effects that boys suffer when they are the subject of sexual abuse, be it from a male or a female." "Hearing an expert's general testimony" on "the trauma a child may experience from testifying in court in a defendant's presence" "is not prohibited by Craig, so long as the testimony is not the sole basis for finding that an individual child would suffer emotional trauma from testifying in the presence of a defendant." Garcia,

. However, the government wrote in its appellate brief that the expert's "testimony was unrelated to the issue of whether the minor should testify via two-way [CCTV]." Thus, it has waived any argument based on the expert's testimony.

- 54 - factors other than demeanor and inflection go into the decision whether or not to believe a witness. Documents or objective evidence may contradict the witness' story; or the story itself may be so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it. Where such factors are present, the court of appeals may well find clear error even in a finding purportedly based on a credibility determination.

Thus, when it appears (but is not certain) that "[d]ocuments

or objective evidence . . . contradict[ed] the witness' story," or

when the relied-on testimony seems "implausible" or "internally

inconsistent" on a critical issue, we have required judges to give

more explanation for their conclusions. See, e.g., Oquendo-

Rivera, 586 F.3d at 67–68 (vacating revocation judgment based on

the judge's failure to explain why he credited a key witness's

story despite apparent contradictions in the evidence); United

States v. Forbes,

, 7–8 (1st Cir. 1999) (vacating order

denying a motion to suppress for the same reason); see also United

States v. Lacouture,

, 191–92 (1st Cir. 2016) (vacating

sentence because judge failed to explain why he credited child

victim's statements in transcript of a forensic interview despite

"apparent inconsistencies" in the child's story). "How much

explanation" is needed "depends on the circumstances — for example,

on the closeness of the case, the nature and extent of gaps or

doubts" that plague the record, and the "suppositions" needed "to

fill the gaps or answer the doubts." Oquendo-Rivera,

. But the upshot is that "[i]n some cases, a result, possibly

- 55 - defensible, may not have been adequately explained or supported."

That's our conclusion in this case. Given the key gap

in YMP's testimony — that he never testified he'd be unable to

testify in front of Cotto even in less daunting surroundings — his

equivocation on the other critical point (whether Cotto frightened

him at all), and the lack of any other evidence such as expert

testimony to clear up the muddle, we could not sustain the judge's

because-of-fear finding (even if he had made one explicitly)

without some explanation for how he filled in the gaps and

untangled the apparent contradictions in YMP's testimony.20

20 For example, if the judge had known to isolate YMP's feelings toward Cotto from his fear of the courtroom, the judge might have nonetheless explained that YMP's tone, inflection and demeanor suggested that Cotto was the main source of his distress. For example, when YMP testified that he feared "seeing her, standing there" and testifying in the courtroom, maybe he put the stress on "seeing her, standing there" (adding "that I've never been there . . . in court" as an afterthought). See Cooper,

(noting that a judge's choices of how to construe and whether to credit live testimony get "singular deference" precisely "because the various cues that 'bear so heavily on [both] the listener's understanding of and belief in what is said' are lost on an appellate court later sifting through a paper record." (quoting Anderson,

). Of course, that train of thought would have hit the same roadblock we identify above — that when asked directly, YMP explicitly said he was "not afraid" of Cotto. But perhaps his demeanor colored those words too; perhaps the judge (with his own life experience the government's expert's testimony, see above at n.19, in mind) could have disregarded YMP's "I'm not afraid" as false bravado. But, given the constitutional right at stake, and the judge's misconception that he didn't need to suss out the source of YMP's fear, we decline to speculate about whether (and if so why) he credited some portions of YMP's testimony but not others. See Oquendo-Rivera,

.

- 56 - "Without [that] further explanation," "we would have a definite

and firm conviction" that the evidence was insufficient to show

that CCTV was needed. Forbes,

.

In sum, then, the trial judge applied an overbroad legal

standard, failed to make the required "because-of-Cotto" finding,

and didn't articulate the explanation necessary to support one (if

the record permitted such a finding at all, which we don't decide).

As a result, when the judge allowed YMP to testify by CCTV, he

violated Cotto's right to confront YMP in person absent a

compelling need for remote testimony. See Craig, 497 U.S. at 855–

56.

Nonetheless, the government tells us, Cotto's conviction

can stand because she hasn't argued the error impacted the verdict

(so she's "waived" any argument it did). Appellee's Br. at 40.

But it's the government, not Cotto, that must shoulder the burden

to show that a constitutional violation was "harmless beyond a

reasonable doubt." Delaware v. Van Arsdall,

(1986) (citing Chapman v. California,

(1967)). In

answering that question, we have to assume that if Cotto had been

allowed to confront YMP in person, "the damaging potential of [her]

cross-examination" would have been "fully realized."

As the

Supreme Court explained in Coy, when the trial court violates the

defendant's right to face-to-face confrontation, our

- 57 - assessment of harmlessness cannot include consideration of whether the witness testimony would have been unchanged, or the jury's assessment unaltered, had there been confrontation; such an inquiry would obviously involve pure speculation, and harmlessness must therefore be determined on the basis of the remaining evidence.

487 U.S. at 1021–22. Rather, we focus on "the importance of the

witness' testimony in the prosecution's case, whether the

testimony was cumulative, the presence or absence of evidence

corroborating or contradicting the testimony of the witness on

material points," and "the overall strength of the prosecution's

case." Van Arsdall,

; see also Carter,

(holding that the victim was wrongly permitted to testify by

two-way CCTV and considering only the "remaining evidence" besides

her testimony to hold that the error wasn't harmless).

Having scoured "the whole record" through that lens, we

can't "confidently say" that "the constitutional error" here

(letting YMP testify remotely without the required findings) was

"harmless beyond a reasonable doubt." Van Arsdall,

. First off, as we've explained in detail, it's not at all

clear the judge would have permitted YMP to testify remotely if

he'd applied the right legal standard, grappled with Cotto's

independent impact on YMP's testimony, and made the more precise

findings Craig requires. And if YMP had testified under the

"truth-inducing effect" of Cotto's "unmediated gaze," Bordeaux,

; Carter,

, he may well have changed

- 58 - his story or told the same tale less convincingly. See Coy, 487

U.S. at 1020–22. The government points out that Cotto and YMP's

text messages detailed their sexual relationship, and that school

staff and records corroborated that both of them left school early

on the day in question. Moreover, records from the motel placed

Cotto's car in the motel's garage that afternoon. But without

YMP's testimony, none of that evidence establishes that Cotto took

him to the motel, or that she did so to have sex with him. So in

the end, the government admits that "YMP's testimony" was

"undoubtedly . . . important" because he "was the only witness to

establish Cotto transported him to the Motel Oriente on March 1,

2016 with the intent they have sex," as charged in the indictment.

Appellee's Br. at 41. Thus, if "the damaging potential of [YMP's]

cross-examination were fully realized," Van Arsdall,

, the jury could have reasonably doubted Cotto's guilt.

Instead, it may well have believed the other student's testimony

that YMP left school in a white car (not Cotto's gray Kia) and

YMP's initial statements to school staff and his friends that he

hadn't seen Cotto that day. See Moses,

(holding

the error wasn't harmless when the child "provided the only eye-

witness testimony" to the crime).

Which brings us to the remedy. When a trial judge fails

to make required factual findings or provide an adequate

explanation for his decision, we "normally" remand for him to

- 59 - reconsider the evidence and make the appropriate findings, if

warranted, or to reverse himself if not. See Pullman-Standard,

; Forbes,

(remanding for the district

court to "clarify and amplify the reasons for its factual findings

or, perhaps, reconsider its conclusion"). However, we have broad

discretion to craft the scope of our "remand in the interests of

justice," United States v. Merric,

(1st Cir.

1999), and may also order a new hearing or trial when it would

serve those interests, Ruiz-Troche v. Pepsi Cola of P.R. Bottling

Co.,

(1st Cir. 1998) (holding that when a trial

court excluded evidence on a mistaken basis, "[t]he choice of

remedies (including whether to require a new trial or merely remand

for further findings) [was] ours," and remanding for a new trial

even though further findings might have justified excluding the

proffered evidence on other grounds) (citing

);

cf. Oquendo-Rivera,

(vacating defendant's

revocation judgment and remanding for "more evidence and more

explanation" before a different judge when the court didn't

adequately explain why it credited the government's key witness);

Andre v. Bendix Corp.,

(7th Cir. 1985)

(explaining that an appellate court may "remand[] for a new trial"

when the judge fails to make sufficient findings of fact under

civil rule 52(a) (citing 9C Fed. Prac. & Proc. Civ. § 2577

(1971))).

- 60 - We think that's the appropriate course here. To begin

with, when a trial judge has decided the facts — even under an

incorrect legal standard — it can be hard "to put aside a belief

sincerely arrived at and look at the evidence through fresh eyes."

Oquendo-Rivera,

(reassigning the case on remand for

that very reason); see also United States v. Hernández-Rodríguez,

(1st Cir. 2006) (explaining that we may remand

"to a different district judge not only in recognition of the

difficulty that a judge might have putting aside his previously

expressed views, but also to preserve the appearance of justice").

For similar reasons, the interests of justice counsel against

asking the judge to revisit his previous ruling that CCTV was

necessary and find the missing facts.21 In this case, the key

finding needed to sustain Cotto's conviction by tele-testimony

(i.e., that YMP could not have testified in Cotto's presence) has

faint (at best) support in the evidence. To make it, the judge

would have to rely on subtle variations in YMP's tone, pace, and

demeanor when he gave certain answers. And he'd need to do so

based on two-year-old testimony. See Rucker v. Higher Educ. Aids

Bd.,

(7th Cir. 1982) (remanding for a new

21As we note below, since YMP is now over eighteen and has aged out of § 3509(b)'s coverage, the judge would not have to revisit his CCTV ruling if the court holds a new trial. So we don't think it's necessary to order this case reassigned to a different judge — something Cotto has not requested.

- 61 - trial, instead of for further findings, when the judge applied an

incorrect legal standard because, among other things, "the trial

ended a year [before] and the record" would be too "stale in the

judge's mind"). We trust that if asked to do so, the judge would

rise to the challenge and reconsider his previous ruling with an

open mind. But if in doing so he sustains his previous finding,

"it might appear that his determination was improperly influenced

by his initial decision" instead of YMP's now-stale and barely

sufficient testimony. Hernández-Rodríguez,

.

Without a doubt, testifying in front of an abuser in

court can "be more emotionally traumatic to [a] child than the

initial abuse itself," no matter what his age or gender. H.R.

Rep. No. 101-681(I) (Sept. 5, 1990), reprinted in 1990 U.S.C.C.A.N.

6472, 6572; see Craig,

(citing the already-"growing

body of academic literature documenting the psychological trauma

suffered by child abuse victims who must testify in court").

That's true for adults as well as children, though Craig and its

offspring don't protect them. See

(b) (capping

the age of covered witnesses at eighteen). So we do not lightly

order a retrial, where (if the government chooses to prosecute),

YMP (now over eighteen) would likely need to face Cotto again.

But the right to confrontation is fundamental. See Pointer v.

Texas,

(1965). It preserves not just the

"perception," but also the "reality" of fairness in our criminal

- 62 - justice system. Coy,

("[T]here is something deep

in human nature that regards face-to-face confrontation between

accused and accuser as 'essential to a fair trial in a criminal

prosecution.'" (quoting Pointer,

)). And Cotto

faces ten years in prison without the chance to confront her key

accuser. We do not think that sustaining that result based on

YMP's two-year-old chambers testimony — equivocal at best on

whether he could face Cotto in person — would reasonably assure

Cotto and the public that her conviction rests on a fair and just

foundation.

END

For those reasons, we are bound to hold that despite

Congress's promise to grant Puerto Ricans state-like "autonomy"

over their local affairs, see Sánchez Valle,

,

and an "end" to their island's "subordinate status" under federal

law, Cordova,

, the Protect Act — though it refers

to Puerto Rico as a "commonwealth" — treats the island as

a "territory . . . belonging to the United States" and not as a

member of the Union. Shell Co.,

. As a result, we

affirm the judge's decision to sustain the indictment and hold

there was sufficient evidence to sustain Cotto's conviction.

But because Cotto's trial violated her Sixth Amendment

rights, we vacate her conviction and remand for a new trial.

-Concurring Opinion Follows-

- 63 - TORRUELLA, Circuit Judge, Concurring. Although I fully

agree with the decision reached by the majority (as well as its

reasoning) to reverse the conviction by reason of the violation of

appellant's Sixth Amendment rights, I wish to express my

disagreement with the manifestations made regarding Puerto Rico's

constitutional status and related subjects.

The constitutional status of Puerto Rico was established

by the infamous Insular Cases:22 it is that of an unincorporated

territory, whatever that means. This is not a term you will find

anywhere in the Constitution, but one by which the Supreme Court

22 See generally De Lima v. Bidwell,

(1901) (holding that once Puerto Rico was acquired by the United States through cession from Spain it was not a "foreign country" within the meaning of tariff laws); Goetze v. United States,

(1901) (holding that Puerto Rico and Hawaii were not foreign countries within the meaning of tariff laws); Dooley v. United States,

(1901) (holding that the right of the President to exact duties on imports into the United States from Puerto Rico ceased with the ratification of the peace treaty between the United States and Spain); Armstrong v. United States,

(1901) (invalidating tariffs imposed on goods exported from the United States to Puerto Rico after the ratification of the treaty between the United States and Spain); Downes v. Bidwell,

(1901) (holding that Puerto Rico did not become a part of the United States within the meaning of Article I, section 8 of the Constitution); Huus v. N.Y. & P.R. S.S. Co.,

(1901) (holding that a vessel engaged in trade between Puerto Rico and New York is engaged in the coasting trade and not foreign trade).

- 64 - of the time23 used to validate Puerto Rico's colonial status of

inequality,24 and by which the Court supported the Manifest Destiny

and American exceptionalism theories that were prevalent during

the imperial period of the United States. This ruling and the

biased treatment of the residents of Puerto Rico that it promoted

prevailed even after they were granted U.S. citizenship25 and

continues to the present day. Although it is a status that is

based on a rationale of racial inequality,26 its flawed premises

are ones that the Supreme Court has studiously avoided confronting,

or even modifying, while at the same time creating no small amount

of confusion by its kaleidoscope of decisions as to what this

status stands for or encompasses constitutionally speaking, and

notwithstanding the platitudes that are quoted as the need arises.

A brief sample of the confusing and contradictory

language that has issued over the last century will suffice to

illustrate this point. The Court has ruled that under Puerto

23 Almost to a man, the same Court that validated Plessy v. Ferguson,

(1896), overruled by Brown v. Bd. of Educ.,

(1954). 24 See Juan R. Torruella, The Insular Cases: The Establishment of a Regime of Political Apartheid,

(2007). 25 Balzac v. Porto Rico,

(1922). 26 See Downes,

(Brown, J. concurring). See also Rubin Frances Weston, Racism in U.S. Imperialism: The Influence of Racial Assumptions on American Foreign Policy, 1893- 1946, at 15 (1972) ("The racism which caused the relegation of the Negro to a status of inferiority (during the Reconstruction Period) was to be applied to the overseas possessions of the United States.").

- 65 - Rico's constitutional status as an unincorporated territory,

Puerto Rico belongs to but is not a part of the United States;27

that it is "foreign to the United States in a domestic sense";28

that it is a jurisdiction over which Congress has plenary powers29

pursuant to the Territorial Clause;30 that its residents are only

entitled to the constitutional protection of fundamental rights,31

which does not include the right to trial by jury;32 that all the

granting of U.S. citizenship did for the residents of Puerto Rico

was to allow them the right to enter the United States freely, and

there exercise full citizenship rights if they became residents;33

that state juries must reach unanimous verdicts;34 and that Puerto

Rico is like a state for purposes of the Three-Judge Court Act,

,35 but lacks sovereignty in the context of the double

27 Downes,

. 28

. 29 See Harris v. Rosario,

(1980); Califano v. Gautier Torres,

(1978). 30 U.S. Const. art. IV, § 3: "The Congress shall have the power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States . . . ." 31 See Calero-Toledo v. Pearson Yacht Leasing Co.,

, 668-69 n.5. (1973). 32 See Balzac,

. But compare Duncan v. Louisiana,

(1968) (holding that trial by jury is a fundamental right), and Reid v. Covert,

(1957) (same, and applies to prosecution of U.S. citizens outside the U.S.). 33 See Balzac,

. 34 Ramos v. Louisiana,

(2020). 35 Calero-Toledo,

.

- 66 - jeopardy clause notwithstanding that "Congress . . . 'relinquished

its control over [Puerto Rico's] local affairs'" and granted the

island "a measure of autonomy comparable to that possessed by the

States."36 Topping this contradictory list of haves and have nots

we have the most downgrading of all actions validated by the

Supreme Court pursuant to Congress's omnipotent powers under the

territorial clause, wiping out all concepts of local autonomy

and/or "compact" to which it had previously given lip service

(erroneously, in my opinion), and setting Puerto Rico back to the

unvarnished colonial regime that existed in the days of the Foraker

Act37 (which spawned the Insular Cases), imposing on the U.S.

citizens of Puerto Rico an unelected board to run the territory

over its elected government.38

It seems to me that much confusion and disenchantment

would have been avoided had someone bothered to read the extensive

evidence that is available as to what Congress intended and

36 Puerto Rico v. Sánchez Valle,

(2016) (quoting Examining Bd. of Engineers, Architects and Surveyors v. Flores de Otero,

(1976)). 37

(1900). 38 See Puerto Rico Oversight, Management, and Economic Stability

Act (PROMESA),

et seq.; see also, Fin. Oversight & Mgt. Bd. for Puerto Rico v. Aurelius Inv., LLC,

(2020).

- 67 - actually did in enacting the bill that authorized the "creation"

of the "Commonwealth of Puerto Rico."39

Starting with the statute in question, as we must, one

cannot find an iota of language in that legislation, which simply

authorized a modicum of autonomy and self-government to the people

of Puerto Rico, that supports the contention that a new

constitutional status was being created, much less that one was

being established which superseded the existing unincorporated

territorial one. If that statement is not convincing enough, even

though the language of Public Law 600 self-evidently supports it,

looking at the legislative history in the Congressional Record is

helpful.

On May 17, 1950, the Senate subcommittee considering

S. 3336, the precursor of Public Law 600, heard the testimony of

Puerto Rico's Resident Commissioner in Congress,40 Dr. Antonio

Fernós-Isern, regarding the bill, and specifically regarding the

39 See Juan R. Torruella, The Supreme Court and Puerto Rico: The Doctrine of Separate and Unequal 144-160 (1985). See also David M. Helfeld, "The Historical Prelude to the Constitution of the Commonwealth of Puerto Rico,"

(1952) and David M. Helfeld, "Congressional Intent and Attitude Toward Public Law 600 and the Constitution of the Commonwealth of Puerto Rico,"

(1952), both of which are excellent contemporaneous accounts of what Congress intended in enacting Public Law that authorized what became the "Commonwealth of Puerto Rico," and are based on the evidence in the Congressional Record and supporting official documentation. 40 Puerto Rico's non-voting Congressman.

- 68 - "in the nature of a compact" phrase, which was causing uneasiness

because of its Sphinx-like inscrutability. In that respect Fernós-

Isern testified: "S. 3336 would not change the status of the island

of Puerto Rico relative to the United States. . . . It would not

alter the powers of sovereignty acquired by the United States over

Puerto Rico under the terms of the Treaty of Paris."41

He had already testified in a similar manner the previous

day before the House's committee dealing with H.R. 7674,42 the

counterpart to S. 3336, at which hearing the Secretary of the

Interior testified that there would be no change in "Puerto Rico's

political, social and economic relationship to the United

States,"43 a position also endorsed by Cecil Snyder, an Associate

Justice of the Supreme Court of Puerto Rico, in his own testimony.44

The Senate's report on S. 3336 succinctly stated on this point:

"The measure would not change Puerto Rico's fundamental political,

social, and economic relationship to the United States."45

This in a nutshell represents the understanding of

Congress regarding Public Law 600, and in addition to which, I

41 Puerto Rico Constitution: Hearing on S. 3336 Before a Subcomm. of the S. Comm. on Interior & Insular Affs., 81st Cong. 4 (1950). 42 Puerto Rico Constitution: Hearings on H.R. 7674 and S. 3336 Before the H. Comm. on Pub. Lands, 81st Cong. 63 (1950). 43

. 44

. 45 S. Rep. No. 81-1779, at 3 (1950).

- 69 - refer the reader to the litany of supportive evidence summarized

in the literature cited in footnote 39.

I further disagree with the majority's views, to the

extent it relies on the existence of a "compact" between the United

States and Puerto Rico. At most, the language used in Public Law

600 is "in the nature of a compact," which is a far cry from saying

there is a "compact," which implies mutually binding promises, a

situation which does not and cannot exist between Puerto Rico and

the United States,46 given Puerto Rico's unincorporated territorial

status, which as previously demonstrated, is still validated by

the Supreme Court.

I join the merits of this case notwithstanding its

reliance on a "commonwealth" jurisdictional basis because, even

ignoring the "commonwealth" issue, there is still jurisdiction to

legislate intra Puerto Rico under the present Supreme Court case

law regarding unincorporated territories. This alternate view

validates the prosecution, and does not, however, affect my

concurring with the majority on the outcome of this appeal.

46 See Dorsey v. United States,

(2012) ("[O]ne Congress cannot bind a later Congress, which remains free to repeal [an] earlier [law]."); see also Christina D. Ponsa-Kraus, Political Wine in a Judicial Bottle: Justice Sotomayor's Surprising Concurrence in Aurelius (July 27, 2020), 130 Yale L.J. Forum _________ (Forthcoming 2020), available at SSRN: https://ssrn.com/abstract=3661668. But see Aurelius Inv., LLC, 140 S. Ct. at 1677-78 (Sotomayor, J., concurring in judgment) (noting that "[t]he truism that 'one Congress cannot bind a later Congress' appears to have its limits" (citation omitted)).

- 70 -