Harold ORTIZ-GRAULAU, Petitioner, v. UNITED STATES of America, Respondent.
No. 12-2188.
United States Court of Appeals, First Circuit.
June 20, 2014.
It is likely that the prosecution could have shown that Guzman had the knowledge of the nearby school, but it failed to introduce such evidence at trial. Juxtaposing the location of the fast food restaurant with the school is not enough. Additional facts were necessary, and could have easily been proven by way of testimony of police officers who were at the scene, as well as photographs or a video demonstrating that any reasonable person at the Church‘s Chicken would have indeed become aware of being in a school zone. The prosecution likewise could have also demonstrated that to get to the establishment Guzman inevitably would have driven by the school. More so, because Guzman did not live in the neighborhood, his awareness had to be readily proven. Cf. Nieves-Castano, 480 F.3d at 604 (“Here, three minor children lived with the defendant, and it would be easy for a jury to conclude that she knew there were two schools nearby, within or just outside her housing project and less than 1000 feet away, and that she regularly passed by those schools. One school was, in fact, located next to the south entrance of the housing project.“). In the case before us the government asked the jury to take a giant leap of faith, which falls considerably short of sufficiently proving its case.
The evidence presented by the government was insufficient to establish that Guzman knew or reasonably should have known he was in a school zone. Consequently, the conviction as to count two must be vacated.
5. Guzman argues that the sentence imposed upon him was both procedurally and substantively unreasonable. Having remanded the case for resentencing we need not address these arguments at this time. During his resentence Guzman will have an opportunity to argue for what he understands to be an appropriate sentence. See United States v. Bryant, 643 F.3d 28, 34 (1st Cir.2011) (citing Pepper v. United States, — U.S. —, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011)).
III. Conclusion
For the reasons explained above, we AFFIRM the conviction on count one, REVERSE the conviction on count two, and REMAND for resentencing proceedings consistent with this opinion.5
John A. Mathews II, Assistant United States Attorney, with whom Rosa Emilia Rodriguez-Velez, United States Attorney, and Nelson Perez-Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief, for respondent.
Before HOWARD, SELYA and LIPEZ, Circuit Judges.
HOWARD, Circuit Judge.
Petitioner Harold Ortiz-Graulau (“Ortiz“), currently serving a 180-month sentence following his federal child pornography conviction, appeals the district court‘s denial of his
I. Factual and Procedural Background
In 2005, a federal grand jury returned a two-count indictment charging Ortiz with possessing sexually explicit photographs of a minor,
The production statute criminalizes the conduct of a person who “employs, uses, persuades, induces, entices, or coerces any minor to engage in ... any sexually explicit conduct for the purpose of producing any visual depiction of such conduct.”
Before trial, Ortiz filed a motion to dismiss the charges as violating his right to privacy due to the “marital-like” relationship between Ortiz and SMN. The district court denied the motion, largely on the grounds that Ortiz and SMN were not formally married, there is no common law marriage in Puerto Rico, and they could not have been married without SMN‘s parents’ consent. The govern-1ment filed a motion in limine seeking to prohibit Ortiz from presenting any evidence making reference to a consensual or marital-like relationship between Ortiz and SMN or evidence related to Puerto Rico law governing the age of consent. The district court summarily granted the motion in limine over Ortiz‘s objection. Ortiz submitted a written proffer explaining that, but for the ruling on the motion in limine, he would have presented six witnesses, including neighbors and family of Ortiz and of SMN, to testify that Ortiz and SMN were cohabiting for approximately six months and that Ortiz introduced SMN to family and friends as if she were his wife. He also noted that he would have introduced the fact that the age of consent in Puerto Rico at the time was fourteen. Ortiz received permission from the court to subpoena SMN to proffer her testimony outside the presence of the jury only for the purpose of preserving the record for appeal.
SMN‘s testimony was brief and fragmentary. Even so, the testimony confirmed that the relationship was consensual. Upon questioning from defense counsel, she characterized the relationship as that of a “normal couple” and she described personally wanting the pictures. She testified that she was the one who “went to” Ortiz about taking the photos, and that the photographs were taken for no particular purpose. When defense counsel asked SMN whether she had been coerced, enticed, induced, persuaded, used or employed to take the pictures, SMN responded “no” to each. SMN‘s testimony also confirmed that Ortiz took many of the sexually explicit photos of her. Ortiz and the district court both
Ortiz timely appealed his conviction, challenging the sufficiency of the evidence and various alleged errors at trial and in sentencing. We affirmed Ortiz‘s conviction and sentence in United States v. Ortiz-Graulau (“Ortiz I“), 526 F.3d 16 (1st Cir.2008). We found the evidence at trial to be sufficient. At the time, we declined to rule on the precise definition of the term “use” in the statute, although we held that the term “use” included at least instigation. We found that, given the age difference between Ortiz and SMN and Ortiz‘s participation in the sexual contact and photography, a jury could have reasonably inferred that Ortiz “instigated at least some of the conduct.” Ortiz I, 526 F.3d at 19. We also held that the number of photographs taken and the poses in the photographs were sufficient evidence to support the conclusion that some of the conduct occurred in order to make photographs.
Although we held that the evidence at trial was legally sufficient to support the verdict, we expressed concerns about the district court‘s reasoning in excluding SMN‘s testimony in reliance on the prior ruling on the motion in limine. We noted that while consent was not a legal defense under the statute, “SMN was perfectly entitled to testify as to facts bearing directly on a specific statutory element, namely, whether Ortiz ‘employ[ed], use[d], persuade[d], induce[d], entice[d], or coerce[d]’ her in the conduct that was then photographed,” including “factual information about who suggested the photographs and the conduct being photographed and related background.” Ortiz I, 526 F.3d at 20. However, because this argument was not pursued on appeal, we suggested that it was properly left for collateral attack under
In this petition, Ortiz collaterally attacks his conviction on four grounds: (1) he received ineffective assistance of counsel, (2) the trial court violated his Sixth Amendment right to compulsory process and his Fifth Amendment right to due process by not allowing him to present a defense, (3) the conduct underlying his conviction was constitutionally protected, and (4) he is actually innocent. The district court rejected Ortiz‘s petition. It found that Ortiz‘s counsel had not been deficient at trial, noting that counsel filed several motions on Ortiz‘s behalf and made efforts to include SMN‘s testimony. The district court held that even if counsel had been deficient on appeal in not challenging the district court‘s exclusion of SMN‘s testimony, this deficiency did not prejudice the outcome. The district court, citing the reasoning in United States v. Sirois, 87 F.3d 34, 41 (2d Cir.1996), interpreted the term “use” in the production statute as meaning “to employ or avail oneself of the use of a minor in order to create a visual depiction of sexually explicit conduct.” Ortiz-Graulau v. United States, CIV. 09-1387 JAG, 2012 WL 3308877, at *8 (D.P.R. Aug. 13, 2012). Given this meaning of “use,” the district court found no prejudice. The district court rejected Ortiz‘s other due process claims and granted a certificate of appealability as to all four issues.
II. Analysis
A person serving a sentence in federal custody may petition the sentencing court for collateral relief to “vacate, set aside or correct the sentence” as being in
A. Ineffective Assistance of Counsel
In order successfully to claim ineffective assistance of counsel, Ortiz must show that his attorney‘s performance was deficient, and that the deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Deficient performance must fall below “an objective standard of reasonableness.” Id. at 688; see also Tevlin v. Spencer, 621 F.3d 59, 66 (1st Cir.2010). In determining prejudice, we look to whether “there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. If a defendant falls short in showing either deficiency or prejudice, the claim fails. See Companonio v. O‘Brien, 672 F.3d 101, 110 (1st Cir.2012). We need not go through the two prongs of the ineffectiveness claim in a particular order. Where it is more efficient to dispose of an ineffectiveness claim on prejudice grounds, a court should follow that course. Strickland, 466 U.S. at 697. We do so here.
The statute at issue applies to a person who “employs, uses, persuades, induces, entices, or coerces” a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of the conduct.
Ortiz‘s petition focuses largely on the alleged deficiencies of counsel and spends little time on the prejudice analysis, despite the district court‘s extensive discussion of the meaning of the word “use” in
At the time of trial, we had not yet had an occasion to decide the meaning of the term “use” in the context of this statute, but the timing of our decision does not affect the analysis. “A judicial construction of a statute is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction.” Rivers v. Roadway Express, Inc., 511 U.S. 298, 312-13 (1994). As explained below, we conclude that the proffered factual testimony
The meaning of the term “use” in this statute is a question of first impression in this circuit. All of the other circuits that have addressed this issue, however, have held that the “use” element in
In adopting this definition, we are informed by the Supreme Court‘s analysis in Bailey v. United States, 516 U.S. 137 (1995), in which the Court held that “use” of a firearm required more than mere possession. The Court in Bailey looked to the “ordinary or natural” meaning of the term “use,” and found that “use” can mean “to convert to one‘s service,” “to employ,” “to avail oneself of,” and “to carry out a purpose or action by means of.” Id. at 145 (quoting Smith v. United States, 508 U.S. 223, 228-29 (1993)). The Court held that “use” of a firearm requires “active employment” of the firearm. Id. at 143 (emphasis omitted). This understanding of “using” a minor grafts easily onto the conduct at issue here. See Sirois, 87 F.3d at 41 (“There is undoubtedly an active component to the notion of ‘use.’ But that component is fully satisfied for the purposes of the child pornography statute if a child is photographed in order to create pornography.“). Ortiz admitted taking at least some of the photographs, and we held on direct appeal that there was sufficient evidence that some of the sexual conduct was engaged in for the purpose of photographing it. Ortiz I, 526 F.3d at 19. The statutory definition of “use” is met when a defendant personally films or photographs a minor engaged in sexually explicit conduct if the defendant intends to make such a depiction.
In enacting
We note that despite the similarity of the terms in the statute, defining “use” as we do today does not render the other terms superfluous. See United States v. Ven-Fuel, Inc., 758 F.2d 741, 751-52 (1st Cir.1985). “Use” reaches a defendant‘s active involvement in producing the depiction even if the interpersonal dynamics between the defendant and the depicted minor are unknown. Inclusion of the term “use” in the statute permits the conviction of a defendant who was actively and directly involved in producing a sexually explicit depiction of a minor even in the absence of a complaining witness or even without being able to identify the specific minor. In contrast, the terms employ, persuade, induce, entice, and coerce reach various types of external pressure that a defendant might apply on a minor to get him or her to engage in sexually explicit conduct. These terms could reach a defendant‘s conduct even if the pressure were remotely applied and the defendant had no involvement in any actual filming or photography, so long as that pressure were applied with the intent to cause a minor to be visually depicted in a sexually explicit manner.
Given this definition of “use,” any facts about the consensual and allegedly non-exploitative nature of the relationship between Ortiz and SMN or about the circumstances in which the photographs were taken could not have supported a legally permissible defense to whether Ortiz “used” SMN. We need not determine whether Ortiz‘s counsel‘s failure to argue about the relevance of SMN‘s testimony to terms other than “use,” such as “coerce” or “induce,” was deficient. Even if a jury had heard SMN‘s testimony, at most it would have found that some of the statutory terms, such as “coerce” or “induce,” had not been proved. There is no reasonable probability, however, that a jury would have acquitted on “use” while following the law. Cf. United States v. McCloud, 590 F.3d 560, 566 (8th Cir.2009) (defendant in
Ortiz has not shown any prejudice, and therefore his ineffective assistance of counsel claim fails.
B. Right to Present a Defense
Ortiz next argues that the district court prevented him from putting on a defense by excluding SMN‘s testimony and the testimony of other witnesses concerning the nature of the couple‘s relationship and the circumstances surrounding the taking of the photographs. He claims that the exclusion of this evidence violates his Fifth Amendment right to due process and his Sixth Amendment right to compulsory process.
In Ortiz I, we expressed concern about the basis on which the district court excluded SMN‘s testimony, as that testimony would have been relevant to some of the statutory elements such as whether Ortiz induced or coerced her to engage in sexually explicit conduct, but we noted that this was not argued on appeal. We need not reach the question of whether the district court‘s evidentiary rulings may have amounted to constitutional error or whether the issue has been waived, however, because any error was harmless. On collateral review, the inquiry is whether any trial error had a “substantial and injurious effect or influence in determining the jury‘s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 638 (1993) (internal quotation mark omitted). Given our holding on the meaning of “use” in this statute, any error that the district court made in excluding such testimony did not have a substantial and injurious effect on the jury‘s verdict.
C. Conduct Constitutionally Protected
In addition to attacking the exclusion of particular evidence in his case, Ortiz also challenges the applicability of this statute to his conduct. He claims that his convic-5
Ortiz relies heavily on our dicta in United States v. Morales-de Jesus, 372 F.3d 6 (1st Cir.2004), in which we rejected a defendant‘s as-applied Commerce Clause challenge and upheld the constitutionality of
We are unpersuaded that the case before us raises constitutional concerns.6 While consensual sexual activity between adults is constitutionally protected, see, e.g., Eisenstadt v. Baird, 405 U.S. 438, 453 (1972), a minor‘s willing participation in sexual conduct is not, see, e.g., Lawrence v. Texas, 539 U.S. 558, 578 (2003) (expressly excluding minors from its holding that the due process clause protects private, consensual sexual activities between adults). For example, statutory rape laws throughout the country criminalize sexual contact with minors even when the minor willingly participates. See, e.g., Richard A. Posner & Katharine B. Silbaugh, A Guide to America‘s Sex Laws, 44-64 (1996). This protective reasoning extends to regulating child pornography. See United States v. Fletcher, 634 F.3d 395, 403 (7th Cir.2011) (“Congress may legitimately conclude that even a willing or deceitful minor is entitled to governmental protection from ‘self-destructive decisions’ that would expose him or her to the harms of child pornography.” (quoting United States v. Malloy, 568 F.3d 166, 175 (4th Cir.2009))). The government‘s compelling interest in “safeguarding the physical and psychological well-being of a minor” can sustain legislation “aimed at protecting the physical and emotional well-being of youth even when the laws have operated in the sensitive area of constitutionally protected rights.” New York v. Ferber, 458 U.S. 747, 756-57 (1982). Ortiz does not press the potential issue of privacy rights or engage the particular question of when, if at all, visual depictions of sexual conduct arising from a lawful relationship between a minor and an adult is constitutionally protected. Instead, he simply makes the general, conclusory statement that his conduct is of the type that “should be protected” by “constitutional concerns.”
While Ortiz claims that the Morales-de Jesus factors favor his defense in every way, we disagree. With respect to age of
Our decision in Morales-de Jesus left the door open to the possibility that the statute as applied could be unconstitutional.7 Even if such an argument remains viable under some set of facts, the facts of this case do not make out a claim of unconstitutionality.
D. Actual Innocence
Finally, Ortiz argues that he was convicted despite his innocence because he did not willfully violate the law. In arguing this, Ortiz focuses on the fact that he did not know that the age of consent in Puerto Rico could be different from the relevant age of majority under the federal child pornography statutes. We previously ruled on this issue in Ortiz I, when we held that “neither the statute nor precedent suggests that this is a rare instance in which ignorance of the law is a defense.” Ortiz I, 526 F.3d at 19. Federal law, which defines a minor as anyone under eighteen, controls here. See
III. Conclusion
For the reasons stated above, we affirm the district court‘s denial of Ortiz‘s petition for collateral relief.