NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 16, 2014
Decided December 22, 2014
Before
DIANE P. WOOD, Chief Judge
ILANA DIAMOND ROVNER, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 14‐1993
STEPHEN L. ROGERS, Appeal from the United States District
Petitioner‐Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 13 c 6992
UNITED STATES OF AMERICA,
Defendant‐Appellee. Matthew F. Kennelly,
Judge.
O R D E R
Stephen Rogers was convicted of knowingly transferring obscene matter to a
minor, 18 U.S.C. § 1470; knowingly receiving child pornography, id. § 2252A(a)(2)(A);
and enticing a minor to engage in sexually explicit conduct for the purpose of
producing a visual depiction of that conduct, id. § 2251(a). After we affirmed his
convictions under § 1470 and § 2251(a), United States v. Rogers, 474 F. App’x 463, 464–65
(7th Cir.), cert. denied, 133 S. Ct. 358 (2012), Rogers moved to vacate his § 2251(a)
conviction, see 28 U.S.C. § 2255, contending that his appellate counsel rendered
ineffective assistance by failing to challenge the sufficiency of the evidence underlying
that count. The district court denied the motion, but certified for appeal Rogers’s
challenge to his counsel’s performance concerning the sufficiency of the evidence.
No. 14‐1993 Page 2
Because we decided in Rogers’s direct appeal that the evidence was sufficient to
persuade a reasonable jury of his guilt and because he does not show that he was
prejudiced by counsel’s failure to explicitly raise this challenge, we affirm the judgment.
This case involves Rogers’s online interactions with a fourteen‐year‐old girl
named Andrea and an undercover law‐enforcement officer posing as a
thirteen‐year‐old girl named “Emily.” 1 See Rogers, 474 F. App’x at 465–66. In 2005
Rogers began e‐mailing and chatting online with Andrea; in June 2005 Andrea e‐mailed
him a photograph of her vagina and a photograph of her naked breasts. See id. at 465.
The following year Rogers began conversing online with Emily; Rogers told Emily that
he wanted to have sex with her and in June 2006 e‐mailed her a picture of an erect penis
protruding out of a pair of unzipped pants being held by a hand. Id. at 465–66.
Based on his exchanges with Emily, Rogers was charged with “knowingly
persuad[ing], induc[ing], entic[ing], or coerc[ing] [a minor], to engage in prostitution or
any sexual activity” (“Count 1”), 18 U.S.C. § 2422(b), and knowingly transferring
obscene matter to a minor (“Count 2”), id. § 1470; see Rogers, 474 F. App’x at 466.
Rogers’s interactions with Andrea resulted in charges that he knowingly received child
pornography (“Count 3”), 18 U.S.C. § 2252A(a)(2)(A), and enticed a minor to engage in
sexually explicit conduct for the purpose of producing a visual depiction of that
conduct (“Count 4”), id. § 2251(a); see Rogers, 474 F. App’x at 465–66. Rogers moved to
sever the counts pertaining to Emily from the counts relating to Andrea, but the district
court denied the motion and permitted trial to proceed on all counts. Rogers, 474
F. App’x at 466–67.
At trial Andrea testified about her interactions with Rogers. She said that they
met in a chatroom and that he used the screenname “Hotthockey27” and the email
address “food773@yahoo.com.” Andrea testified that after Rogers e‐mailed her a
request for pictures of herself and she e‐mailed him pictures of her face, “Hotthockey
started asking me for pictures of my breasts and my vagina.” Andrea testified that she
had not wanted to take nude photographs, but eventually acquiesced—taking
photographs of her vagina and naked breasts and e‐mailing them to Rogers—so that
Hotthockey27 would stop “nagging” her to take them. The government introduced into
evidence several of Andrea’s e‐mail exchanges with food773@yahoo.com—none of
which contain a request for any “particular kind of picture”—but not her chats with
Hotthockey27 because she had not saved those messages.
1 We limit our discussion of the procedural history to the facts that are important to the
present case. A more detailed account is found in our decisions in Rogers, 474 F. App’x
463 and United States v. Rogers, 587 F.3d 816 (7th Cir. 2009).
No. 14‐1993 Page 3
A government investigator also testified at trial. The investigator said that he had
questioned Andrea about the nude photographs in an August 2007 interview, during
which Andrea mentioned food773@yahoo.com but said that she did not know why she
had taken the photographs. Only later, in an interview in January 2008, the investigator
testified, did Andrea mention Hotthockey27. Andrea testified, however, that she had
told government investigators about Hotthockey27 during the August 2007 interview.
A jury found Rogers guilty of Counts 2, 3, and 4 and not guilty of Count 1.
Rogers, 474 F. App’x at 467. He filed a direct appeal challenging his convictions on
Counts 3 and 4 (concerning Andrea), arguing that he was prejudiced by the district
court’s refusal to sever those counts from Counts 1 and 2 (concerning Emily). He noted
that the government had not corroborated Andrea’s testimony that he requested nude
pictures. Thus, Rogers argued, the evidence supporting Counts 3 and 4 was so weak
that the jury must have found him guilty of those counts based on evidence of his
sexual conversations with Emily.
We rejected Rogers’s challenge, ruling that Rogers had waived his motion to
sever by failing to renew it at the close of evidence. See Rogers, 474 F. App’x at 471–72.
“Assuming arguendo” that Rogers had not waived that motion, we concluded that he
did not prove that he was prejudiced by the refusal to sever. Id. at 472–74. Although the
record was “unclear” as to whether Rogers had “expressly asked” Andrea to send
additional pictures of herself and “physical documentation . . . that he specifically
requested nude pictures of her would have made her testimony all the more
incriminating,” we nevertheless concluded that “a reasonable jury could have been
persuaded of his guilt by her testimony.” Id. at 465, 472–74.
Rogers then brought a collateral attack under 28 U.S.C. § 2255, arguing that
appellate counsel had provided ineffective assistance by failing to challenge the
sufficiency of the evidence supporting his conviction on Count 4. The government, he
asserted, did not present any evidence showing that he had enticed Andrea to produce—
rather than simply send—nude photographs. See 18 U.S.C. § 2251(a); United States v.
Broxmeyer, 616 F.3d 120, 125–27 (2d Cir. 2010). Furthermore, Rogers contended,
“Andrea’s testimony was so unclear, impeached, and unsatisfactory” that it was
“insufficiently credible” to persuade a rational trier of fact of his guilt: None of his
e‐mails to Andrea corroborated her testimony that he had asked her for nude
photographs, a government investigator contradicted Andrea’s testimony that she had
told investigators about Hotthockey27 in August 2007, and Andrea initially told an
investigator that she did not know why she had taken the nude photographs. The
government responded that Andrea’s testimony was sufficient to support Rogers’s
§ 2251(a) conviction and that this court had already concluded that in his direct appeal.
No. 14‐1993 Page 4
The district court denied Rogers’s § 2255 motion. The court found that Andrea’s
testimony—that Hotthockey27 asked her to take nude photographs and she took the
photographs at his behest—showed that Rogers had “urged her to produce, and not just
send, sexually explicit photos of herself.” Moreover, the court concluded, Andrea’s
testimony was not so improbable that no reasonable trier of fact could have credited it.
Thus, the court determined, counsel was not ineffective for forgoing a challenge to the
sufficiency of the evidence. Although the court denied relief, it granted Rogers a
certificate of appealability.
On appeal Rogers maintains that appellate counsel was ineffective for neglecting
to challenge the sufficiency of the evidence substantiating his § 2251(a) conviction. To
succeed on a claim of ineffective assistance of counsel, Rogers must show both deficient
performance and prejudice. See Strickland v. Washington, 466 U.S. 668, 687, 690, 694
(1984); Mertz v. Williams, 771 F.3d 1035, 1041 (7th Cir. 2014). At issue here is prejudice:
whether appellate counsel should have challenged the sufficiency of the evidence
because that claim had a “reasonable probability” of “alter[ing] the outcome” of
Rogers’s direct appeal. See Brown v. Finnan, 598 F.3d 416, 425 (7th Cir. 2010) (quotation
marks omitted). We will “overturn a conviction based on insufficient evidence only if
the record is devoid of evidence from which a reasonable jury could find guilt beyond a
reasonable doubt.” United States v. Johnson, 729 F.3d 710, 714 (7th Cir. 2013) (citation and
quotation marks omitted).
Rogers asserts that the evidence was insufficient because, he says, Andrea never
testified that he asked her to take nude photographs. As we already concluded in
Rogers’s direct appeal, however, Andrea’s testimony was sufficient to convince a
reasonable jury that Rogers violated 18 U.S.C. § 2251(a) by inducing her to take nude
photographs of herself. See Rogers, 474 F. App’x at 474. Even if that conclusion is dicta
and thus not binding as law of the case, see Wilder v. Apfel, 153 F.3d 799, 803 (7th Cir.
1998); United States v. Bloate, 655 F.3d 750, 755 (8th Cir. 2011); but see OʹBrien v. Cont’l Ill.
Nat’l Bank & Trust Co. of Chi., 593 F.2d 54, 59 n.6 (7th Cir. 1979) (explaining that “[a]n
alternative ground for decision” is not dicta); United States v. Sanchez, 35 F.3d 673, 677–
78 (2d Cir. 1994) (explaining that alternative holding constitutes law of the case), Rogers
does not show that he was prejudiced by appellate counsel’s failure to explicitly
challenge the sufficiency of the evidence underlying Count 4. Contrary to Rogers’s
assertion, Andrea testified that Hotthockey27 asked her to take photographs of her
breasts and vagina and that she took the photographs so that he would stop “nagging”
her to take them. Thus, as the district court ruled, a rational jury could find that Rogers
induced Andrea to produce, not just send, sexually explicit photographs of herself. See 18
No. 14‐1993 Page 5
U.S.C. § 2251(a); United States v. Mayer, 674 F.3d 942, 945–46 (8th Cir.), cert. denied, 133 S.
Ct. 357 (2012); Broxmeyer, 616 F.3d at 125–27.
Rogers also maintains that the evidence was insufficient because we noted in his
direct appeal that the record was “unclear” as to whether he had “expressly asked”
Andrea to send additional pictures of herself. But even if the record is unclear, the jury
was still allowed to believe Andrea’s statement that Rogers asked her to take the nude
photographs. The jury apparently credited that testimony, and we will not overturn a
conviction based on a credibility determination unless the testimony was “incredible as
a matter of law,” meaning that it was “physically impossible for the witness to observe
what he described, or . . . impossible under the laws of nature for those events to have
occurred at all.” United States v. Farmer, 717 F.3d 559, 562–63 (7th Cir. 2013) (citation and
quotation marks omitted). Rogers does not meet this high burden. Even though the
e‐mails from food773@yahoo.com did not contain requests for nude photographs, a
reasonable jury could have credited Andrea’s testimony that she received messages
from Hotthockey27 asking that she take nude photographs. Moreover, a reasonable jury
could have credited her testimony even in light of the government investigator’s
testimony that Andrea initially told investigators that she did not know why she had
taken the photographs. See United States v. Rayl, 270 F.3d 709, 713 (8th Cir. 2001)
(upholding § 2251(a) conviction based on witness’s trial testimony that “embellished”
facts as compared to witness’s statement to FBI).
AFFIRMED.