United States v. Ortiz-Graulau

United States Court of Appeals
For the First Circuit

No. 06-1768

UNITED STATES OF AMERICA,

Appellee,

v.

HAROLD ORTIZ-GRAULAU,

Defendant, Appellant.

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

[Hon. Jay A. García-Gregory, U.S. District Judge]

Before
Boudin, Chief Judge,
Selya, Senior Circuit Judge,
and Keenan,* Senior District Judge.

Héctor Ramos-Vega with whom Joseph C. Laws, Jr., Federal
Public Defender, and Patricia A. Garrity, Assistant Federal Public
Defender, were on brief for appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, with whom Rosa Emilia Rodríguez-Vélez, United
States Attorney, was on brief for appellee.

May 20, 2008

*
Of the Southern District of New York, sitting by designation.
 BOUDIN, Chief Judge. Between November 2004 and May 2005,

Harold Ortiz-Graulau, then age thirty-eight, carried on a

consensual sexual relationship with a fourteen-year-old female

identified as SMN. Shortly after the two became acquainted, SMN

dropped out of the ninth grade and moved into Ortiz' home; for the

next six months, Ortiz and SMN lived together as a couple. Despite

the large age difference between the two, their relationship was at

the time legal under Puerto Rico law.1

On several occasions Ortiz brought rolls of film to be

developed at a Walgreens drugstore in San German, Puerto Rico.

After Walgreens' employees noticed that some of the images appeared

to depict a young girl engaged in sexual activities or posed in a

sexually explicit manner, the store manager alerted authorities.

A subsequent search of Ortiz' home uncovered 287 photographs; of

these over 50 either depicted sexual contact between Ortiz and SMN

or showed SMN in a sexually explicit position.

Arrested and interviewed, Ortiz admitted that he had a

sexual relationship with SMN and that he took the explicit

photographs with the knowledge that she was fourteen at the time.

United States v. Ortiz-Graulau, 397 F. Supp. 2d 345, 347 (D.P.R.

2005). But Ortiz insisted that the photographs were not properly

1
The age of consent in Puerto Rico was fourteen at the time
Ortiz took the photographs. See P.R. Laws Ann. tit. 33, § 4061(a)
(2002). The Penal Code of 2004, which went into effect on May 1,
2005, increased the age of consent to sixteen. See Penal Code of
2004 Art. 142.

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considered child pornography because he and SMN were living

together legally in a "marital-like" relationship.

On October 12, 2005, a federal grand jury in the District

of Puerto Rico returned a two-count indictment charging Ortiz with

possessing sexually explicit photographs of a minor, 18 U.S.C. §

2252(a)(4)(B) (2000) (count I), and exploiting a minor for the

purpose of producing the photographs, 18 U.S.C. § 2251(a) (count

II). After a failed effort to have the indictment dismissed, Ortiz

pled guilty to the former count but went to trial on the latter.

At trial, the government offered the photographs,

information about their discovery, Ortiz' statement to the police

upon his arrest, a portion of Ortiz' plea colloquy, and proof that

SMN's birth certificate was in Ortiz' car. SMN's mother testified

as to SMN's age and confirmed that the photographs depicted her

daughter. The parties stipulated to the interstate or foreign

commerce requirement in the exploitation statute. Ortiz and SMN

did not testify. Ortiz was convicted and sentenced to 180 months

in prison.

On this appeal, Ortiz argues that the evidence was

insufficient to prove count II, that his count I plea colloquy was

improperly admitted in the count II trial, and that the sentence on

count I was not adequately justified by the judge. The standard of

review varies with the issue. We start with the statute, which

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provides the relevant framework for considering whether the offense

was proved by the government.

The crime captioned "[s]exual exploitation of children,"

charged in count II, embraces one who "employs, uses, persuades,

induces, entices, or coerces any minor to engage in . . . sexually

explicit conduct for the purpose of producing any visual depiction

of such conduct," subject to proof of a commerce element not here

in dispute. 18 U.S.C. § 2251(a). Neither does Ortiz deny that

various of the photographs portrayed "sexually explicit conduct"

within the meaning of the statute. Id. § 2256(2)(A).

Rather, he says that the statutory "purpose" element was

not proved because no evidence was presented showing that Ortiz

used or employed SMN to engage in sexual activity and no proof

offered that Ortiz took the photographs to exploit SMN or to

traffic in child pornography. The purpose, says Ortiz, was to

memorialize their intimate relationship rather than to make

pictures, that he was not aware that to do so was unlawful and that

the jury was wrongly denied evidence that SMN was living with Ortiz

in a lawful quasi-marital relationship.

This summary conflates several different arguments.

Evidence is indeed lacking as to the detailed circumstances

surrounding SMN's conduct and the taking of the photographs; but

the argument that one would expect to follow is that therefore

Ortiz has not been shown by the government's evidence to have

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employed or used SMN, let alone enticed or coerced her, to engage

in the sexual activity. But this argument is not explicitly made

and if made would not be persuasive.

Given the difference in ages--38 versus 14--and the fact

that Ortiz participated in some of the sexual contact and admitted

to taking the photographs (or at least many of them), the jury

could reasonably infer that it was Ortiz who instigated at least

some of the conduct; and Ortiz does not argue that terms like

"employ" or "use" require more than instigation, at least in the

context of this statute. Whether something less than instigation

might suffice need not be decided.

The statutory argument that Ortiz does develop relates to

the statute's requirement that the--or at least a--"purpose" of the

defendant must be to foster sexually explicit conduct by a minor in

order to make a visual depiction of it. Ortiz seems to say that

evidence of such purpose is lacking because there is no proof that

sexual acts or poses were performed in order to make photographs,

nor (a rather different point) were they done with the aim of

peddling or displaying the pictures to others.

Ortiz's first point implies that the conduct was

occurring anyway and just happened to be photographed. But the

number of photographs, many of sexually explicit poses, permits a

strong inference that some of the conduct occurred in order to make

the photographs. See United States v. Morales-de Jesus, 372 F.3d

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6, 22 (1st Cir. 2004), cert. denied, 545 U.S. 1130 (2005). This is

not a case of a security camera mechanically picking up a random

act. Here, a jury could infer that at least some of the sexual

conduct occurred in order to make a depiction of it.

As for Ortiz' intended use of the photographs, the

statute's language requires only that a visual depiction be made.

Perhaps Congress mainly sought to suppress trafficking in child

pornography; but a pecuniary purpose requirement was earlier

deleted from the statute, United States v. Sirois, 87 F.3d 34, 40

(2d Cir. 1996), and preventing exploitation of children could be

aided by the statute's broad ban on taking such photographs even

for private use. Cf. Gonzales v. Raich, 545 U.S. 1, 21-22 (2005).

Ortiz probably did not understand that his conduct was

criminal: the government points to no proof that Ortiz knew the

law, and his lack of concealment and the then-applicable age of

consent in Puerto Rico support his factual claim. But neither the

statute nor precedent suggests that this is a rare instance in

which ignorance of the law is a defense, compare Cheek v. United

States, 498 U.S. 192, 199 (1991), although this might well be

relevant in sentencing.

Ortiz also complains--although this is an admissibility

and not a sufficiency argument--that the jury was not told of his

ongoing relationship with SMN. Despite the language of the

statute, Congress may well not have intended to make it criminal

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for a husband and wife to take intimate photographs of each other

for their private use; this is so even if the instigator were

twenty-one and the other spouse seventeen, thus falling within the

plain terms of the statute's prohibition. If the government

brought such a case, judges might seek to devise limits even on

"plain" language; indeed, some judges have even suggested

constitutional objections based on marital or consenting-adult

privacy rights.2

But Ortiz and SMN were not married--and could not have

been without permission, see Ortiz-Graulau, 397 F. Supp. 2d at 349-

-and the argument again is not properly developed. Ortiz simply

says that evidence of the relationship should have been allowed--

without explaining how it relates to any defensible reading of the

statute. As presented, the argument looks simply like an effort to

invite jury nullification. See generally United States v. Manning,

79 F.3d 212, 219 (1st Cir.), cert. denied, 519 U.S. 853 (1996); 6

LaFave, Israel, King & Kerr, Criminal Procedure § 22.1(g) (3d ed.

2007).

In the district court, unsuccessfully opposing an in

limine motion by the government seeking to exclude evidence of the

2
See Ortiz-Graulau, 397 F. Supp. 2d at 348-49 (describing case
law); see also Morales-de Jesus, 372 F. 3d at 18. But see id. at
22 (Lynch, J., concurring); United States v. Robinson, 137 F.3d
652, 656-57 (1st Cir. 1998). Some courts have conjured up commerce
clause limitations as well. See United States v. McCoy, 323 F.3d
1114, 1129-30 (9th Cir. 2003); United States v. Corp, 236 F.3d 325,
332-33 (6th Cir. 2001).

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relationship, Ortiz did suggest briefly several reasons why the

evidence might have been relevant, especially, to negate inferences

of coercion--inferences that (apart from their relevance to a

statutory element) could easily have been prejudicial. But no such

argument has been developed on appeal, and--district judge

discretion aside--our precautionary review of the government's

closing argument shows no attempt to exploit any such inference.

The in limine motion had one other consequence. At

trial, after the close of the government's case and denial of a

motion for a directed acquittal, the defense called SMN to make a

proffer outside the jury's presence of testimony that she was

prepared to give; she said, in response to defense counsel's

sequential questions, that Ortiz had not "coerced," "enticed,"

"employed" or "used" her to make the photographs. She was also

prepared to testify that the making of the photographs had been

discussed between them but no detail was furnished.3

The district court excluded the testimony, seemingly on

the ground that it contravened the in limine ruling which the

government invoked. If this happened and for this reason, the

exclusion was arguably a mistake: the in limine ruling was directed

3
The proffer testimony was fragmentary, partly because of
objections from the prosecutor--remarkable under the circumstances-
-that the proffer was being elicited by leading questions. The
transcript also notes a sidebar conference, apparently not
recorded, in which counsel and the judge conferred about the
matter.

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to the ongoing consensual relationship which was not shown to be a

legal defense; by contrast, SMN was perfectly entitled to testify

as to facts bearing directly on a specific statutory element,

namely, whether Ortiz "employe[d], use[d], persuade[d], induce[d],

entice[d], or coerce[d]" her in the conduct that was then

photographed.4 But, for reasons not explained, no objection is

made to this latter ruling on appeal.

We are sufficiently concerned that we have considered

whether the matter deserved our attention sua sponte, a power we

can invoke in extraordinary cases to avoid a miscarriage of

justice, United States v. Rivera-Rosario, 300 F.3d 1, 10 n.1 (1st

Cir. 2002). If the witness had facts to offer, the exclusion might

well have been prejudicial. But the circumstances of the proffer,

just what the witness would have said if permitted to testify, the

judge's full reasons for his decision, and the actions and

motivations of trial counsel are all unclear.

Given that the issue was not raised on appeal and that it

would require considerable factual development, this is a matter

that is properly left for a proceeding under 28 U.S.C. § 2255,

4
The old objection to testifying on the "ultimate issue" has
much less force today, see United States v. Vega-Figueroa, 234 F.3d
744, 754-55 (1st Cir. 2000); a court might, or might not, have
admitted the testimony. But SMN's view on whether she was "used"
or "employed" would be of little legitimate help to the jury; what
she could properly offer is factual information about who suggested
the photographs and the conduct being photographed and related
background.

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relating to the effectiveness of counsel. If such a proceeding is

brought, we would expect the district court, so long as Ortiz

qualifies financially, promptly to appoint conflict-free counsel to

assist defendant in this endeavor. United States v. Mala, 7 F.3d

1058, 1063-64 (1st Cir. 1993); United States v. Garcia-Rodrigues,

215 F.3d 1332 (1st Cir. 2000) (table).

This brings us to a quite different claim that Ortiz does

make on appeal, namely, that evidence was improperly offered

against him. During the trial, the government read to the jury a

portion of the hearing transcript recording Ortiz' guilty plea to

the count I charge of possession of child pornography. At the plea

colloquy, Ortiz had confirmed that he had knowingly possessed

sexually explicit photographs of a minor. At trial on count II

defense counsel objected to the reading of the colloquy as lacking

relevance and being needlessly prejudicial. The denial of the

objection is now claimed as error.

The colloquy had some relevance in nailing down Ortiz'

knowledge of the contents of the photographs and it is hard to see

why the admission was unduly prejudicial: he admitted taking the

photographs, which were more vivid than the colloquy and were

themselves presented to the jury. The colloquy does not contribute

much to the sufficiency of the evidence (which was adequate

anyway); but neither is it apparent why its admission should be

regarded as error--still less prejudicial.

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 Ortiz' final argument is a challenge to his sentence. He

does not dispute the fifteen-year term imposed on count II--which

is a mandatory minimum set by the statute, 18 U.S.C. § 2251(e)--but

only the ten-year term concurrently imposed on count I. Since the

ten-year term was made concurrent with the longer term on the count

II conviction here affirmed, nothing much has been shown to turn on

whether it or something less is imposed; but Ortiz is entitled to

receive a lawful sentence on each count.

For the convictions together, the applicable guideline

range, whose computation Ortiz does not contest, was 180 to 210

months--primarily driven by the grouping rules that combined the

two counts as closely related and then focused on the more serious

of the two crimes. U.S.S.G. § 3D1.2(b) (2005). The district court

chose the minimum figure (180 months) for both counts, noting the

guideline range, referring briefly to the statutory factors and

commenting critically on the girl's youth.

The district court then reduced the count I sentence to

ten years when it was pointed out that this was the statutory

maximum for a conviction under the possession statute, 18 U.S.C. §

2252(b)(2), but the court gave no further substantive explanation

for choosing ten years rather than some lower figure. This, Ortiz

says on appeal, has led to an inadequately explained sentence; but

Ortiz provides little reason why a lower sentence would have been

justified on count I or why it matters.

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 Arguments for a lower sentence can easily be gleaned from

contentions made in support of Ortiz' other claims: the consensual

character of the relationship, compliance with the then-applicable

age of consent, the absence of any evidence of coercion and the

lack of any indication that Ortiz thought he was committing a

crime. But, if the composite guideline range governs both counts

(and Ortiz does not claim otherwise), the ten year sentence was a

substantial discount from the minimum guideline figure.

Further, in the district court, Ortiz' own lawyer asked

the court to impose a ten-year sentence on both counts, including

count I. His brief does not even attempt to explain why Ortiz

would be helped by a still lower sentence on this concurrent count.

About all he says is that the judge should have said more--what

about is not made clear--in explaining the sentence. So it is hard

to describe Ortiz' sentence as unlawful and, given how modestly the

issue has been briefed, we are not inclined to disturb the count I

sentence.

But to be sure that a potential problem is not missed in

future cases, we note an oddity in the guidelines' treatment of

related counts. Even a back of the envelope calculation suggests

that the count I guideline range would likely have been much lower-

-possibly 63 to 78 months--if count II had never been charged;

indeed, this is so even though the range for count I taken alone

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might include a handsome upward adjustment because of the sexual

exploitation behavior.5

Yet the guideline grouping rules create a combined higher

range for "the sentence" on both counts and merely instruct that

the sentences for the separate counts be constructed so that the

full term served meets the total number of years required.

U.S.S.G. § 3D1.3(a). Of course, given departures and Booker

variances, United States v. Booker, 543 U.S. 220 (2005), the total

sentence finally selected may be within or without the range, but

following this approach produces a tension between count I

sentences calculated in the two different situations.

Whether this tension often has real world consequences is

unclear, and none have been suggested here; if the count II

conviction in this case had been eliminated on appeal, Ortiz would

have gotten a new sentencing hearing with a recomputed lower range,

but since it is being affirmed, the count I figure does not

increase the time he will serve. But the problem deserves some

further examination in a case where the issue is argued and shown

to matter.

With the requirement of a pecuniary purpose deleted,

section 2251(a) has a potential for producing some outcomes--

5
The suggested range reflects a base offense level of 18,
U.S.S.G. § 2G2.2(a)(1), and upward adjustments for the sexual
exploitation of a minor, id. § 2G2.2(b)(5), and the number of
images possessed, id. § 2G2.2(b)(7)(A), yielding an adjusted
offense level of 25.

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especially sentences--that are disquieting. This may or may not be

true in the present case: the photographs, as SMN's mother made

clear, are not a full measure of the harm done to SMN's life by

Ortiz' drawing her into the relationship. But it is quite a

different question whether this statute is the proper way to deal

with family-related delinquencies ordinarily governed by local law.

Affirmed.

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