Ortiz-Graulau v. United States, 2014 U.S. App. LEXIS 11665

Ortiz (adult) photographed a 14-year-old girl (SMN) with whom he cohabited; Puerto Rico's local age of consent then was 14, but federal law defines a minor as under 18.
Federal indictment charged Ortiz with possession (plea) and production (trial) of child pornography under 18 U.S.C. § 2251(a) and § 2252(a)(4)(B); police found over fifty sexually explicit photos.
The district court excluded evidence and witness testimony about the consensual, "marital-like" relationship and local age-of-consent law via a government motion in limine; SMN was later proffered outside the jury but her testimony was excluded from trial.
On direct appeal this Court affirmed the conviction (Ortiz I), expressed concern that excluded testimony bore on elements like "induce/coerce/use," and suggested collateral review under § 2255 for unraised arguments.
Ortiz filed a § 2255 petition raising ineffective assistance of counsel, Sixth/Fifth Amendment denial of the right to present a defense, as-applied constitutional challenge, and actual innocence; the district court denied relief and this Court affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Ineffective assistance of counsel	Counsel failed to preserve/exhaust argument that excluded testimony (SMN) was material; counsel erred on appeal	Even if counsel erred, no prejudice because excluded testimony could not negate the statutory "use" element	Denied — no prejudice under Strickland; testimony would not have negated "use" element
Right to present a defense / compulsory process	Excluding SMN and other witnesses denied Ortiz his Sixth and Fifth Amendment rights to present a defense	Any evidentiary error was harmless given statutory meaning of "use" and overwhelming proof	Denied — any error was harmless under Brecht because "use" satisfied by Ortiz's intentional photographing
As-applied constitutional challenge (privacy / protected conduct)	Relationship and consensual nature should place conduct outside federal reach; statute unconstitutional as applied	Minors are excluded from adult privacy protections; government has compelling interest protecting minors and preventing child pornography	Denied — facts do not present a viable as-applied constitutional claim; statute validly applied to these facts
Actual innocence / mens rea	Ortiz reasonably believed local age-of-consent made conduct lawful; lacked culpable intent to violate federal law	Federal statute defines minor as under 18; ignorance of federal law is not a defense	Denied — conviction stands; knowledge that victim was a minor suffices for § 2251(a) conviction

Bailey v. United States, 516 U.S. 137 (1995) (interpreting ordinary meaning of "use" and requiring active employment for some statutory contexts)
Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective assistance standard: deficiency and prejudice)
New York v. Ferber, 458 U.S. 747 (1982) (government's compelling interest in protecting minors justifies regulation of child pornography)
United States v. Sirois, 87 F.3d 34 (2d Cir. 1996) ("use" satisfied where defendant photographed minor in sexually explicit conduct)
United States v. Morales-de Jesús, 372 F.3d 6 (1st Cir. 2004) (discussing limits of as-applied challenges and factors relevant to potential privacy claims)
United States v. Ortiz-Graulau, 526 F.3d 16 (1st Cir. 2008) (direct-appeal decision affirming conviction and noting potential relevance of excluded testimony)