United States Court of Appeals 

For the First Circuit 

No. 17-1123 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

RANDY CHARRIEZ-ROLÓN, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

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

Before 

Torruella, Lipez, and Thompson, 

Circuit Judges. 

Alan Jay Black, for appellant. 

Christopher J. Smith, Attorney, Appellate Section, Criminal 

Division, U.S. Department of Justice, with whom Rosa Emilia 

Rodríguez-Vélez, United States Attorney, Mariana E. Bauzá-Almonte, 

Assistant United States Attorney, Chief, Appellate Division, and 

Franscisco A. Besosa-Martínez, Assistant United States Attorney, 

were on brief, for appellee. 

May 1, 2019 

	
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THOMPSON, Circuit Judge. Randy Charriez-Rolón 

(Charriez, for short) stands convicted of possessing child 

pornography and transporting a minor with the intent to engage in 

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

sentence of 420 months in prison (because the district judge 

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

was insufficient evidence to convict him of possessing child 

pornography and that the prosecutor's comments during closing 

arguments crossed constitutional lines. Neither of his arguments 

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

BACKGROUND 

Because Charriez challenges the sufficiency of the 

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

favorable to the jury's verdict. See United States v. SantosSoto, 799 F.3d 49, 56-57 (1st Cir. 2015). 

A. XFS Moves In1

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

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

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

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

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

 1 In cases involving minors, we refer to children by their 

initials, rather than their full names, to protect their privacy. 
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family moved in, Charriez approached XFS's mother and offered a 

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

The family welcomed the help, and Charriez began 

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

Charriez offered neighborly gestures, for instance when XFS's 

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

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

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

with XFS. 

And XFS, who was bullied at school and had trouble 

communicating with others, welcomed Charriez's invitations at 

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

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

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

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

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

B. Charriez's Sexual Abuse of XFS 

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

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

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

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

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

revealed a horrifying secret about Charriez. 
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Turns out, Charriez's intentions were anything but pure. 

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

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

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

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

children's bedroom. 

But that was only the beginning. Charriez began showing 

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

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

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

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

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

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

And to Charriez, location did not matter. He would 

assault XFS in restroom facilities at public parks and fast food 

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

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

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

law enforcement got involved the following spring.

C. Charriez Gets Arrested 

The month after XFS spoke up about the abuses, police 

arrested Charriez. Waiving his Miranda rights2 Charriez gave 

 2 See Miranda v. Arizona, 384 U.S. 436 (1966). 
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police permission to search his home, vehicle, and cellphone while 

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

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

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

seven sexually explicit images involving minors (children under 

the age of eighteen). 

When questioned by police, Charriez admitted to having 

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

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

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

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

child pornography involved minors around age 14 and would "download 

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

Armed with these facts, a grand jury indicted Charriez 

for possessing child pornography and transporting a minor with the 

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

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

to trial.

D. The Trial 

Covering only the highlights, we note that the 

government's case against Charriez included: 

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

 documentary evidence — account statements for the bunk bed 

Charriez purchased for XFS;
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 photographic evidence — the images found on Charriez's 

cellphone; and

 testimony from police officers — about the incriminating 

statements made by Charriez; a computer Forensic Examiner —

about finding and flagging the pornographic images on 

Charriez's cellphone; XFS's school social worker — about 

XFS's school life during the abuse; XFS's mother — about how 

Charriez got close to XFS; and XFS himself — about every time 

Charriez abused him.

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

1. Charriez's Judgment of Acquittal Motion 

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

orally moved for a judgment of acquittal on the possessing child 

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

was that no reasonable jury could find that the images involved 

minors. In his own words (emphasis ours): 

[W]hat is the evidence to conclude if those people are 

in fact minors? And . . . they don't have to be 

pediatrician[s] or anything like that, but I still think 

that . . . reasonable [jurors] cannot, beyond a 

reasonable doubt, understand that first he downloaded 

those images and that those are minors. That is my 

position, Your Honor. 

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

determine, the prosecutor argued that the jurors had sufficient 

evidence to decide whether the images Charriez possessed depicted 

minors given his incriminating statements to police, the 

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

and denied the motion. 
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2. Charriez Takes the Stand 

Against his attorney's advice, Charriez chose to testify 

in his defense. We again hit the highlights. 

On direct examination, Charriez testified that he had 

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

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

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

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

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

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

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

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

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

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

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

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

looking for." 

On cross-examination, the prosecutor asked Charriez to 

confront both his admissions to police and the charges against 

 3 According to a leading medical dictionary, albinism is "[a] 

group of inherited . . . disorders with deficiency or absence of 

pigment in the skin, hair, and eyes, or eyes only, resulting from 

an abnormality in melanin production." Albinism Definition, 

Stedman's Medical Dictionary (28th ed. 2006), available at

Westlaw. 
- 8 - 

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

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

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

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

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

the questions were outside the scope of direct examination. The 

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

responsibility, the prosecutor quickly ended his cross. 

Charriez did not call any other witnesses, but he did 

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

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

for the same reasons as before.

3. Summation 

Each side then gave closing arguments, with the 

prosecutor asking the jury to convict and the defense urging the 

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

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

Charriez: 

In conclusion ladies and gentlemen and most important, 

the defendant came before you, took the stand and did 

not deny the allegations. Had the opportunity to and 

when given the opportunity to he did not deny the 

charges. 

Charriez's attorney did not object. 
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4. Jury Instructions 

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

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

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

[K]eep in mind that the defendant has a Constitutional 

right to be presumed innocent and not to testify. 

Actually when a defendant does not testify no inference 

of guilt may be drawn from the fact that the defendant 

did not testify. 

In this case the defendant Charriez Rolon decided to 

testify. He provided testimony on certain subjects upon 

which questions which were posed to him. 

Regardless of what might have been argued by counsel, I 

instruct you that you should examine and evaluate his 

testimony, that is what he said, what he testified about, 

and you are not to speculate or draw any adverse 

inference on matters that he did not testify about. The 

defendant[']s testimony is to be evaluated just as you 

would evaluate the testimony of any witness with an 

interest in the outcome of the case. 

Both sides basically agreed to the instruction, though the 

prosecutor proposed the following tweak: 

Your Honor, there is no objection [to the jury 

instructions] as such, but you have given me much food 

for thought with respect to your handwritten instruction 

here. I am wondering if it might not make sense even to 

make it stronger, perhaps mentioning directly, 

statements made by counsel for the government or 

something along those lines. So that it becomes even 

more [evident] that this is curative instruction to 

anything that happened in the closing argument. 

The judge responded (emphasis ours): 

[I]t is a curative instruction, a cautionary instruction 

for the jury. And for the record what I am referring to 

is that this is an instruction that is submitted to the 

jury because of the government[']s comments during 
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rebuttal, that the jury was to consider, or could 

consider that the defendant while taking the stand did 

not deny the conduct in Counts 1 and 2. Actually what 

it reads, in one of the sections is "Regardless of what 

may have been argued by counsel", I can add what might 

have been argued by counsel for the government. So that 

will pinpoint the attorney making the statement. But I 

don't want to unduly call the attention to a subject 

that otherwise could or could not have been ignored. I 

don't know. Any concerns by the defense? 

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

prosecutor signed off. And that was that.

The judge issued the edited curative instruction, along 

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

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

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

on all counts.

ISSUES AND ANALYSIS 

Charriez now appeals, making two main arguments: first 

that the government did not present enough evidence for the jury 

to convict him of possessing child pornography, and second that 

the prosecutor's closing arguments violated his constitutional 

rights by spotlighting his decision to limit his testimony and not 

address his guilt or innocence. We consider each in turn. 
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A. Sufficiency of the Child Pornography Evidence4

To convict Charriez of possessing child pornography, the 

government needed to prove beyond a reasonable doubt that he 

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

depicted as being engaged in sexually explicit conduct. See 18 

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

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

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

area." Id. § 2256(2)(B)(iii). 

In moving for acquittal below, Charriez argued only that 

the government did not adequately prove the first part of the 

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

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

for the first time that the government failed to provide sufficient 

evidence to prove the second part: that the pictures were 

"lascivious." Because he preserved his first sufficiency 

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

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

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

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

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

 4 Curiously, unlike the jury and us, Charriez's appellate 

counsel has not looked at the photos. 
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17, 21 (1st Cir. 1999) (citing United States v. Rodríguez, 162 

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

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

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

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

injustice" unless there has been such an "egregious misapplication 

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

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

1. The Ages of the Persons in the Photos 

Relying on a Fifth Circuit opinion, United States v. 

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

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

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

case here, because even the Forensic Examiner was not absolutely 

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

government disagrees, insisting that the jury needed no expert 

testimony because the images clearly showed prepubescent children 

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

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

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

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

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

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

or helpful" if images involve "prepubescent children who are . . . 
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obviously less than 18." Id. at 373 (emphasis added). And 

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

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

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

Turning to our own caselaw, we have no opinion directly 

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

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

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

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

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

whether a sexually explicit image depicts a real or computergenerated child," we do not demand that the government provide 

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

not require experts for that fairly technical determination," 

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

government to provide an expert witness for an assessment 

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

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

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

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

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

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

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

logic is readily extended to the more commonsense determination of 
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whether a person in an image is less than eighteen years old"), 

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

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

expert testimony was needed here. 

True, Batchu left open "whether expert testimony is 

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

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

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

did the jury hear the Forensic Examiner talk about the prepubescent 

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

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

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

pornography involved children around 14 years old and that he 

searched for such images on his phone using terms like 

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

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

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

doubt, that the images admitted into evidence contained minors. 

So Charriez's first sufficiency challenge fails. 

2. The Lasciviousness of the Photos 

Charriez next argues that the photos cannot be 

considered child pornography because the government failed to 

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

He again blasts the Forensic Examiner's testimony, claiming that 
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because the Examiner never indicated that the images focused on 

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

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

government thinks otherwise, arguing again that the images are 

blatantly lascivious. Checking only for a clear and gross 

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

The problem for Charriez is that his brief does not 

mention the clear and gross injustice standard, let alone develop 

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

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

claim waived for inadequate briefing. See United States v. 

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

similar situation). 

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

are not — Charriez's lascivious argument cannot prevail. 

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

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

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

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

considered relevant, though, including 

(1) whether the genitals or pubic area are the focal 

point of the image; (2) whether the setting of the image 

is sexually suggestive (i.e., a location generally 

associated with sexual activity); (3) whether the child 

is depicted in an unnatural pose or inappropriate attire 

considering her [or his] age; (4) whether the child is 

fully or partially clothed, or nude; (5) whether the 
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image suggests sexual coyness or willingness to engage 

in sexual activity; and (6) whether the image is intended 

or designed to elicit a sexual response in the viewer. 

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

the contested images contained fully nude minors engaged in various 

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

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

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

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

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

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

So Charriez's second sufficiency argument fails, too. 

B. The Prosecutor's Closing Comments 

Which brings us to Charriez's argument that the 

prosecutor's comments during summation were so improper and 

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

government counters that Charriez waived this argument by 

 5 To the extent Charriez also questions the sufficiency of 

lascivious evidence for lack of expert testimony on that point, 

the argument is a no-go. See United States v. Frabizio, 459 F.3d 

80, 85 & n.8 (1st Cir. 2006) (stressing that "whether a given 

depiction is lascivious is a question of fact for the jury," so 

"expert testimony is not required"). 

6 As a reminder, the prosecutor's comments at issue were: 

In conclusion ladies and gentlemen and most important, 

the defendant came before you, took the stand and did 

not deny the allegations. Had the opportunity to and 

when given the opportunity to he did not deny the 

charges. 
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accepting a curative jury instruction and then failing to object 

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

however, the government insists that the jury could reasonably 

infer that if Charriez could truthfully deny or explain the 

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

government's waiver argument is a winning one. 

Remember, Charriez's counsel readily agreed that the 

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

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

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

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

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

judge for adopting the prosecutor's suggested tweak (which 

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

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

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

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

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

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

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

them. 

Enough said about the prosecutor's closing comments 

issue. 
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CLOSING WORDS 

For the reasons recorded above, we affirm the judgment 

of conviction entered below.