Ortiz-Graulau v. USA
Filing
53
OPINION AND ORDER denying 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number Cr. 05-231 (JAG)) filed by Harold Ortiz-Graulau. Signed by Judge Jay A Garcia-Gregory on 8/13/2012.(RJC) (ab).
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
HAROLD ORTIZ-GRAULAU,
Petitioner,
CIVIL NO. 09-1387(JAG)
v.
REL. CRIM. NO. 05-231(JAG)
UNITED STATES OF AMERICA
Respondent.
OPINION AND ORDER
GARCÍA-GREGORY, D.J.
Pending
Graulau’s
before
the
(“Petitioner”
Court
or
is
petitioner
“Ortiz-Graulau”)
Harold
motion
Ortiz-
requesting
post-conviction relief pursuant to 28 U.S.C. § 2255. (Docket
Nos.
1,
33).
For
the
reasons
outlined
below,
the
motion
is
hereby DENIED.
Between
November
BACKGROUND
2004 and May
2005,
Ortiz-Graulau,
a
thirty-eight year old male, and Sheila Morales Negrón (“SMN”)
were in a public, consensual sexual relationship. (Docket No. 42
at 2). At the time, SMN was fourteen years old. (Id.). Their
relationship, however, was legal under Puerto Rico law. See P.R.
CIVIL NO. 09-1387(JAG)
Laws
Ann.
tit.
2
33,
§
4061(a)
(2002)
(repealed
2004)
(establishing that the age of consent was fourteen).1
On various occasions, Petitioner and SMN had film developed
at a Walgreens drugstore in San Germán, Puerto Rico.2 (Crim.
Docket
No.
28
at
2).
The
store
manager
contacted
the
local
authorities after seeing the content of the photographs. (Id.).
During a search of Ortiz-Graulau’s home, 50 photographs were
found where SMN appeared engaging in sexually explicit conduct,
either by herself or with Petitioner. United States v. OrtizGraulau, 526 F.3d 16, 18 (1st Cir. 2008). Ortiz-Graulau was
arrested on June 23rd, 2005. (See, e.g., Docket No. 33 at 1).
On October 12th, 2005, a federal grand jury sitting in this
district
issued
Graulau,
526
possessing
a
F.3d
two-count
at
sexually
18.
explicit
superseding
Ortiz-Graulau
photographs
indictment.
was
of
Ortiz-
charged
a
minor,
with
in
violation to 18 U.S.C. § 2252(a)(4)(B) (“count one”); and with
exploiting
explicit
a
minor
photographs,
for
in
the
purpose
violation
of
of
18
producing
U.S.C.
sexually
§
2251(a)
(“count two”). Id.
1
Because of the nature of Petitioner’s main claim, that his
counsel provided him with ineffective assistance at the trial
and appellate levels, the Court deems it proper to provide a
detailed procedural background.
2
All citations made to the criminal docket refer to Criminal No.
05-231(JAG).
-2-
CIVIL NO. 09-1387(JAG)
3
Petitioner attempted to have the indictment dismissed on
two separate occasions. (See Crim. Docket Nos. 21, 51). In his
first motion to dismiss, Ortiz-Graulau argued that 18 U.S.C. §
2252(a)(4)(B) was unconstitutional as applied to the facts of
his case. (Crim. Docket No. 21 at 1). Specifically, Petitioner
argued that he and SMN had been living as husband and wife for
about
a
year;
that
he
possessed
the
sexually
explicit
photographs, taken in the privacy of a marital relationship,
only for personal use; and that, therefore, prosecution under
the statute infringed upon his right to privacy. (See id.). This
motion was denied for two reasons. (See Crim. Docket No. 28).
First, the Court concluded that the legality of Petitioner’s
relationship
with
the
minor
under
Puerto
Rico
law
did
not
preclude prosecution under federal law. (Id. at 4-5). Secondly,
the Court concluded that the privacy rights afforded to married
couples
could
not
be
extended
to
SMN
and
Ortiz-Graulau’s
relationship; that is, constitutional privacy protections did
not extend to a relationship between an adult male and a female
minor who were not legally married. (Id. at 6).
On
October
(“Government”
pursuant
to
or
FED.
31st,
2005,
“United
R.
CRIM.
the
States”)
P.
United
filed
12(b).
States
a
(Crim.
of
motion
Docket
America
in
limine
No.
31).
Therein, the Government asked the Court to exclude all evidence
regarding Puerto Rico’s age of consent, as well as evidence
-3-
CIVIL NO. 09-1387(JAG)
regarding
SMN
and
4
Ortiz-Graulau’s
quasi-marital
relationship.
(Id. at 1). The Government argued that, because having reached
Puerto Rico’s age of consent is not a defense to the federal
offenses with which petitioner was charged, such evidence was
irrelevant and had to be excluded under FED. R. EVID. 402. (Id. at
3-5).
The
Government
relationship
was
not
then
a
argued
defense
that
and,
having
thus,
a
marital-like
evidence
related
thereto must similarly be excluded. (Id. at 5). Alternatively,
the United States contended that the evidence’s probative value
would be substantially outweighed by the danger of undue delay
and
jury
holding
a
confusion.
pretrial
(Id.
(citing
conference,
the
FED. R. EVID.
Court
403)).
granted
the
After
United
States’ motion in limine on December 12th, 2005.3 (Crim. Docket
No. 34).
That same day, Ortiz-Graulau submitted a proffer of proof.
(Crim.
Docket
No.
42).
For
3
appeal
purposes,
Petitioner
Petitioner opposed the United States’ motion on five grounds.
(Crim. Docket No. 32). He first argued that it was the jury’s
role to determine what kind of relationship existed between
himself and SMN. (Id. at 1). Then, Petitioner stated that
“[such] evidence [was] not only relevant, but to disallow it
[would be] extremely prejudicial.” (Id.). His third argument was
that “[t]he crime charged [was] already hideous enough to allow
the jury to go further than the actual facts.” (Id.). Then,
Petitioner stated that it was the task of the defense to prove
the type of relationship that he had with SMN, as well as the
“impact, if any, that ha[d] on the crimes charged.” (Id. at 2).
Finally, Ortiz-Graulau argued that evidence regarding his
relationship with SMN “[went] directly to the element of
knowledge in 18 U.S.C. § 2251(a).” (Id.).
-4-
CIVIL NO. 09-1387(JAG)
5
established that two of his relatives, two neighbors, as well as
two of SMN’s relatives would have been called by the defense to
testify as to the nature of his relationship with SMN. (Id. at
2). Furthermore, Petitioner proffered that the age of consent in
Puerto Rico was fourteen at the time the pictures were taken.
(Id.). Finally, the proffer shows that the Court granted that
SMN be subpoenaed to testify outside the hearing of the jury.
(Id.). Shortly thereafter, Ortiz-Graulau pled guilty to count
one of the indictment. (Crim. Docket Nos. 43, 44). He would face
trial on the production count alone. Id.
Petitioner also filed his own motions in limine. (See Crim.
Docket Nos. 33, 50). In the first one, Petitioner sought to
exclude
from
information
on
the
evidence
his
prior
arrest
any
admission
or
drug
to
drug
use
conviction.
and
(Crim.
Docket No. 33 at 1 (citing FED. R. EVID. 401, 403)). At the abovereferenced
pretrial
conference,
this
motion
was
discussed.
(Crim. Docket No. 34). There, Petitioner also asked the Court to
appoint a tutor for the minor and that his counsel be allowed to
interview her. (Id.). The motion was denied. (Id.).
In his second motion in limine, Petitioner asked the Court
to
exclude
evidence
of
his
and
SMN’s
specific
ages.
(Crim.
Docket 33 at 1). He argued that, with regard to the charges, the
only relevant information was that SMN was under the age of
-5-
CIVIL NO. 09-1387(JAG)
6
eighteen, a fact to which Petitioner was willing to stipulate.4
(Id.).
Furthermore,
Ortiz-Graulau
argued
that
presenting
evidence to the jury of the large difference in age between him
and SMN would be unduly prejudicial, and should not be permitted
pursuant to FED. R. EVID. 403. (Id.). In their opposition, the
United States stated that they would satisfy the age element of
the
statute
by
introducing
SMN’s
birth
certificate
and
the
testimony of witnesses. (Crim. Docket No. 54 at 2). Similarly,
the
United
States
argued
that
evidence
of
the
large
age
difference was necessary to establish Petitioner’s control over
SMN, and how he was able to “use, induce, or persuade” her to
engage in sexually explicit conduct.5 (Id.). Petitioner’s second
motion in limine was argued and denied at trial. (See Crim.
Docket Nos. 57, 89).
Petitioner filed his second motion to dismiss on December
14th, 2005. (Crim. Docket No. 51). He asked the Court to dismiss
the production count of the indictment, arguing that that the
wording used therein did not describe an actionable crime and
4
“‘[M]inor’ means any person under the age of eighteen years.”
18 U.S.C. § 2256.
5
Any person who employs, uses, persuades, induces, entices, or
coerces any minor to engage in, with the intent that such minor
engage in, any sexually explicit conduct for the purpose of
producing any visual depiction of such conduct or for the
purpose of transmitting a live visual depiction of such conduct,
shall be punished as provided under subsection (e)…. 18 U.S.C. §
2251(a).
-6-
CIVIL NO. 09-1387(JAG)
7
failed to inform Ortiz-Graulau of the charge against him.6 (Id.
at 3). Therefore, Petitioner continued, there was an error of
substance that warranted dismissal with prejudice. (Id.). The
Government
opposed
the
motion,
arguing
that
the
indictment
adequately charged Petitioner with a violation of 18 U.S.C. §
2251(a), and that, in any case, the motion was submitted late
considering that trial had already begun. (Crim. Docket No. 55
at 1-2). This motion was also argued and denied at trial. (See
Crim. Docket Nos. 57, 89). The Court ruled that it should have
been
timely
filed
but,
even
if
it
had
been,
the
indictment
merely contained an error of form, and it provided sufficient
notice of the charge against Petitioner. (Crim. Docket No. 89 at
6).
On
December
Petitioner
was
21st,
found
2005,
guilty
following
and
a
convicted
four-day
on
the
trial,
production
count. (Crim. Docket No. 62). He moved for acquittal pursuant to
FED. R. CRIM. P. 29,
insufficient
to
arguing
sustain
his
that
the
evidence
conviction
under
presented
18
U.S.C.
was
§
2251(a). (Crim. Docket No. 68 at 2). Specifically, Ortiz-Graulau
argued that no direct or circumstantial evidence was introduced
6
Petitioner referred specifically to the following sentence of
the indictment: “for the purpose of producing a visual depiction
of such photograph, that is, still photographic images….” (Crim.
Docket No. 51 at 1). His argument was that the statute
criminalizes producing a visual depiction of sexually explicit
conduct, not producing a visual depiction of a photograph. (Id.
at 3).
-7-
CIVIL NO. 09-1387(JAG)
8
to show that he acted with the specific intent to do something
that the law forbids. (Id. at 2-3). He then claimed that the
United
States
failed
to
prove
that
Petitioner
had
employed,
persuaded, induced, enticed, coerced or used SMN.7 (Id. at 3).
Finally, Petitioner argued that evidence was also lacking as to
his intention to introduce the pictures in interstate commerce.
(Id. at 5).
Alternatively, Petitioner moved for a new trial pursuant to
FED. R. CRIM. P. 33. (Id. at 5-7). First, Petitioner argued that
not
having
information
as
to
the
legality
of
his
and
SMN’s
relationship could have misled the jury. (Id. at 6). Petitioner
then argued that there was no case law to support the conclusion
that consent is not a defense to the production count. (Id.).
Third,
the
Court
did
not
allow
SMN
to
testify
on
her
relationship with Petitioner, and the proffer of proof was also
very limited. (Id.). Fourth, Petitioner argued that the Court did
not
allow
consider
the
his
pornography.
jury,
for
statement
(Id.).
the
that
Finally,
purposes
the
of
pictures
Petitioner
7
finding
were
contended
intent,
not
that
to
child
the
Petitioner’s argument was that the word use, within the meaning
of the statute, requires deception of the minor. (Crim. Docket
No. 68 at 3-5). Merely requiring that the minor appear in the
picture, Petitioner continued, would render the other categories
listed in § 2251(a) meaningless. (Id. at 5).
-8-
CIVIL NO. 09-1387(JAG)
introduction
of
his
9
guilty
plea
to
count
one
was
unduly
prejudicial. (Id. at 7).
The
Court
denied
Petitioner’s
motion.
(Crim.
Docket
No.
73). The Court first held that, because the only intent required
under § 2251(a) is that of producing a visual depiction of a
minor
engaged
in
sexually
explicit
conduct,
Petitioner’s
knowledge as to the unlawfulness of his acts was irrelevant.
(Id.
at
3).
The
Court
then
adopted
an
ordinary-meaning
interpretation of the word use, which does not require that the
minor be deceived, and held that there was sufficient evidence
to establish all the elements of the production offense. (Id. at
5). With regard to Petitioner’s rule 33 motion, the Court held
that
there
was
no
prejudice
in
excluding
evidence
regarding
SMN’s consent, given that the statute does not mention consent
as an appropriate defense to the charge of production. (Id. at
6-7). Finally, the Court held that there was no prejudice in
admitting
into
evidence
Petitioner’s
guilty
plea
to
the
possession count. (Id. at 7). Therefore, there was no need for a
new trial. (Id. at 8).
Petitioner appealed. Ortiz-Graulau, 526 F.3d at 16. There,
he
raised
three
arguments:
(1)
that
the
evidence
was
insufficient to prove the production count; (2) that his plea to
the possession count was improperly admitted at trial; and (3)
that the sentence on the possession count “was not adequately
-9-
CIVIL NO. 09-1387(JAG)
10
justified by the judge.”8 Id. at 18. On May 20th, 2008, the
United States Court of Appeals for the First Circuit rendered
its judgment affirming petitioner’s conviction. Id.
Concerning
the
sufficiency
of
the
evidence,
the
First
Circuit understood Petitioner had made two separate arguments.
Id. at 18-19. The first argument was that the United States
failed to prove Ortiz-Graulau had “employed or used SMN, let
alone enticed or coerced her, to engage in sexual activity.” Id.
The First Circuit stated that “[e]vidence is indeed lacking as
to the detailed circumstances surrounding SMN’s conduct and the
taking of the photographs.” Id. at 18. However, “[g]iven the
difference
participated
in
in
ages…
some
and
of
the
the
fact
sexual
that
contact
Ortiz[-Graulau]
and
admitted
to
taking the photographs, the jury could reasonably infer that it
was [him] who instigated at least some of the conduct.”9 Id. at
19.
Petitioner’s second argument was that there was no evidence
proving “that [the] sexual acts or poses were performed in order
to make photographs, [or that they] were [] done with the aim of
peddling or displaying the pictures to others.” Id. The First
8
The last argument will not be addressed by the Court, given
that it is not relevant with regard to Petitioner’s § 2255
motion.
9
The First Circuit further stated that, because the argument
was not raised on appeal, “[w]hether something less than
instigation might suffice [did not need to] be decided.” 526
F.3d at 19.
-10-
CIVIL NO. 09-1387(JAG)
11
Circuit concluded that given “the number of photographs [and]
many of sexually explicit poses… a jury could infer that at
least some of the sexual conduct occurred in order to make a
depiction of it.” Id. The Circuit also held that the statute
only requires the making of a visual depiction, thus dismissing
the argument that Petitioner took the photographs for private
use only.10 Id.
Ortiz-Graulau raised a number of other arguments concerning
the
evidence
at
trial.
Id.
at
19-21.
With
regard
to
the
exclusion of evidence of Petitioner and SMN’s relationship, the
First Circuit cautioned that Congress likely did not intend to
criminalize
language
conduct
of
marriage.
the
Id.
Petitioner
and
that,
despite
statute,
at
19.
SMN
falling
occurred
within
Nevertheless,
were
not
within
married
the
the
in
plain
confines
Circuit
and,
the
noted
any
case,
of
that
the
argument was not properly developed. Id. at 20.
After finding that the evidence was sufficient to sustain
Petitioner’s conviction, however, the First Circuit went on to
assert that “SMN was perfectly entitled to testify as to facts
bearing
directly
on
a
whether
Ortiz[-Graulau]
specific
‘employed,
10
statutory
used,
element,
persuaded,
namely,
induced,
The First Circuit reasoned that a ban that includes taking
photographs for private use is compatible with the statute’s
purpose of preventing the exploitation of children. OrtizGraulau, 526 F.3d at 19.
-11-
CIVIL NO. 09-1387(JAG)
enticed
or
explained
coerced’
that
12
her.”
“SMN’s
Id.
view
on
Nevertheless,
whether
she
the
was
Circuit
‘used’
or
‘employed’ would be of little legitimate help;” only “factual
information about who suggested the photographs and the conduct
being photographed and related background” would be relevant.
Id. at 20 n.4. Because this error was not objected to on appeal,
the First Circuit advised that a proceeding under 28 U.S.C. §
2255 would be appropriate. Id. at 21.
Following
the
First
Circuit’s
recommendation,
Petitioner
filed a motion requesting post-conviction relief pursuant to 28
U.S.C. § 2255. (Docket Nos. 1, 33). Petitioner rests his motion
on four grounds: (1) that the district court did not allow him
to
present
a
defense;
(2)
that
counsel
provided
him
with
ineffective assistance; (3) that the prosecution failed to prove
a
federal
criminal
offense;
and
(4)
that
Ortiz-Graulau
was
actually innocent. (Docket Nos. 33, 50).
Under
conviction
sentence
28
U.S.C.
relief
violates
on
“the
§
STANDARD OF LAW
2255, Petitioner
the
following
Constitution
may
grounds:
or
laws
request
(1)
of
post-
that
the
his
United
States;” (2) “that the court was without jurisdiction to impose
such sentence;” (3) “that the sentence [i]s in excess of the
maximum authorized by law;” or (4) that it “is otherwise subject
to collateral attack.” Hill v. United States, 368 U.S. 424, 426-12-
CIVIL NO. 09-1387(JAG)
13
27 (1962) (internal quotations marks omitted) (quoting 28 U.S.C.
§ 2255); Knight v. United States, 37 F.3d 769, 774 (1st Cir.
1994).
Nevertheless, “[i]ssues resolved by a prior appeal will not
be reviewed again by way of a 28 U.S.C. § 2255 motion.” Murchu
v. United States, 926 F.2d 50, 55 (1st Cir. 1991) (internal
quotation marks omitted) (quoting Dirring v. United States, 370
F.2d 862, 864 (1st Cir. 1967)). Similarly, “[a] significant bar
on [post-conviction] relief is imposed when a prisoner did not
raise claims at trial or on direct review.” Owens v. United
States, 483 F.3d 48, 56 (1st Cir. 2007) (citing United States v.
Frady, 456 U.S. 152, 168 (1982)); Knight, 37 F.3d at 774. Absent
a showing of cause for having procedurally defaulted his claims
as well as a showing of actual prejudice, “failure to raise a
constitutional issue on direct appeal will bar raising the issue
on collateral attack.” Knight, 37 F.3d at 774 (citing Coleman v.
Thompson, 501 U.S. 722, 750 (1991)). Nevertheless, the cause and
prejudice
standard
does
not
apply
to
claims
of
ineffective
assistance of counsel, which are appropriately addressed in §
2255 proceedings. Knight, 37 F.3d at 774 (citing Brien v. United
States, 695 F.2d 10, 13 (1st Cir. 1982)).
When considering a § 2255 petition, “a district court must
grant an evidentiary hearing on the prisoner's claims unless
‘the motion and the files and records of the case conclusively
-13-
CIVIL NO. 09-1387(JAG)
14
show that the prisoner is entitled to no relief.’” Owens, 483
F.3d at 56-57. Petitioner’s allegations are to be taken “as
true, except to the extent that they are contradicted by the
record or are inherently incredible, and to the extent that they
are merely conclusions rather than statements of fact.” OteroRivera
v.
United
States,
494
F.2d
900,
902
(1st
Cir.
1974)
(quoting Domenica v. United States, 292 F.2d 483, 484 (1st Cir.
1961)). “The question, then, is whether, assuming [petitioner]'s
allegations to be true, he would be entitled to relief.” De
Vincent v. United States, 602 F.2d 1006, 1009 (1st Cir. 1979)
(citing Machibroda v. United States, 368 U.S. 487, 493 (1962)).
“If not, the denial of his motion without a hearing was proper.”
Id. (citing Miller v. United States, 564 F.2d 103, 106-07 (1st
Cir. 1977)).
Because Petitioner’s trial was conducted before this Court,
“the judge is at liberty to employ the knowledge gleaned during
previous
proceedings
and
make
findings
based
thereon
without
convening an additional hearing.” United States v. McGill, 11
F.3d 223, 225 (1st Cir. 1993).
DISCUSSION
Petitioner rests his § 2255 motion on four grounds: (1)
that the Court did not allow him to present a defense; (2) that
his counsel provided him with ineffective assistance; (3) that
the United States failed to prove a federal criminal offense;
-14-
CIVIL NO. 09-1387(JAG)
15
and (4) that Ortiz-Graulau was actually innocent. (Docket Nos.
33, 50). The Court shall first address Petitioner’s ineffective
assistance of counsel claim.
1.
To
Ineffective Assistance of Counsel
succeed
on
his
claim
of
ineffective
assistance
of
counsel, Petitioner must satisfy the Strickland two-prong test.
Strickland
v.
Washington,
466
U.S.
668,
687
(1984).
First,
Petitioner “must show that counsel's performance was deficient.”
Id.
Then,
he
must
show
that
“the
deficient
performance
prejudiced the defense.” Id.
For counsel’s performance to be deficient under Strickland,
it must fall below “an objective standard of reasonableness.”
Tevlin v. Spencer, 621 F.3d 59, 66 (1st Cir. 2010) (internal
quotation marks omitted) (quoting Strickland, 466 U.S. at 688).
“Judicial
scrutiny
of
counsel's
performance
must
be
highly
deferential” to escape “the distorting effects of hindsight.”
Strickland,
counsel's
466
U.S.
at
reasonableness
689.
in
Moreover,
courts
consideration
of
must
assess
“prevailing
professional norms.” Id. at 688-89. Petitioner “must overcome
the presumption that… the challenged action ‘might be considered
sound trial strategy.’” Id. (quoting Michel v. Louisiana, 350
U.S. 91, 101 (1955)). Accordingly, “[the First Circuit] has held
that a lawyer's performance is deficient under Strickland ‘only
-15-
CIVIL NO. 09-1387(JAG)
16
where, given the facts known at the time, counsel's choice was
so patently unreasonable that no competent attorney would have
made it.’” Tevlin, 621 F.3d at 66 (quoting Knight v. Spencer,
447 F.3d 6, 15 (1st Cir. 2006)).
Concerning
show
“a
Strickland’s
reasonable
prejudice
probability
prong,
that,
but
Petitioner
for
must
counsel's
unprofessional errors, the result of the proceeding would have
been different.” Id. (citing Porter v. McCollum, 130 S.Ct. 447,
453
(2009)).
“Although
he
need
not
show
‘that
counsel's
deficient conduct more likely than not altered the outcome’ of
his
proceeding,
sufficient
to
[Petitioner]
undermine
must
confidence
establish
‘a
in
outcome.’”
[that]
probability
Id.
(citing Porter, 130 S.Ct. at 455-56).
a.
Counsel’s Performance at Trial
Ortiz-Graulau argues that various aspects of his attorney’s
performance at trial amounted to ineffective assistance. (See
Docket No. 33). First, Petitioner contends that counsel failed
to
develop
his
“only
line
of
defense,”
that
the
element
of
exploitation was lacking, from the beginning of the case. (Id.
at 17). Secondly, Petitioner maintains that counsel provided him
with ineffective assistance when he responded with a two-page
opposition to the United States’ motion in limine to exclude all
evidence of the marital-like relationship. (Id. at 19). This, in
-16-
CIVIL NO. 09-1387(JAG)
17
turn, resulted in the Court’s exclusion “of factual support for
the nature and circumstances of the relationship between [OrtizGraulau] and SMN” at trial, which prevented “the defense [from]
explain[ing] to the jury why and how the photos were taken, and
even whose idea it was to take them in the first place.” (Id. at
20-21). Third, Petitioner contends that counsel failed to argue
that
the
fact
that
the
sexual
relationship
between
SMN
and
Ortiz-Graulau was legal under Puerto Rico law “undermines the
statutory
element
of
exploitation.”
(Id.
at
23).
Fourth,
Petitioner argues that his “effort to invite jury nullification”
was an overt dereliction of his duty as counsel. (Id. at 24
(quoting Ortiz-Graulau, 526 F.3d at 16)). Finally, Petitioner
contends that counsel’s assistance was deficient given that he
failed
to
call
witnesses
and
“introduce
readily-available
evidence that would have corroborated [the line of defense of
non-exploitation], and [that] there was no plausible strategic
reason for not doing so.” (Id. at 25). Petitioner accordingly
concludes that he was “prejudiced by the [C]ourt’s rulings and
his counsel’s failures” to the point that “he received an unfair
trial.” (Id. at 26).
Petitioner’s arguments are contradicted by the record and,
thus,
fail
to
overcome
performance
fell
within
assistance.
The
Court
the
the
presumption
range
recalls
of
that
reasonable
Petitioner’s
-17-
his
counsel’s
professional
counsel
as
very
CIVIL NO. 09-1387(JAG)
diligent,
filing
18
several
motions
on
Petitioner’s
behalf.
In
contrast to Petitioner’s assertions, counsel argued on various
occasions that Petitioner did not use, employ, entice, persuade,
induce or coerce SMN. (See, e.g., Crim. Docket Nos. 62, 89).
Similarly, he ardently argued against the exclusion at trial of
SMN’s testimony and evidence of the marital-like relationship.
(See, e.g., Crim. Docket Nos. 32, 89). Moreover, when the Court
granted the United States’ motion in limine, counsel submitted a
proffer of proof to preserve the excluded testimony on appeal.
(Crim. Docket No. 42). Counsel moved for acquittal under FED. R.
CRIM. P. 29 and, alternatively, for a new trial under FED. R. CRIM.
P. 33 after Petitioner was convicted. (Crim. Docket No. 62).
There,
counsel
contested
the
sufficiency
of
the
evidence
presented at trial, and argued that the admission and exclusion
of
specific
pieces
of
proof
had
been
unduly
prejudicial
to
Petitioner’s defense. (Id.).
Again, the First Circuit has held that for an attorney’s
choices to be deficient under Strickland, they must have been
“patently unreasonable.” Tevlin, 621 F.3d at 66 (quoting Knight,
447 F.3d at 15). Counsel’s behavior at the trial level does not
fit
this
unsuccessful
description.
does
unconstitutionally
not
That
mean
the
that
deficient.”
[counsel’s]
United
F.3d 237, 248 (1st Cir. 2012).
-18-
defense
States
“was
ultimately
performance
v.
Valerio,
was
676
CIVIL NO. 09-1387(JAG)
19
Because Petitioner has failed to satisfy the first prong,
the Court will not continue the Strickland analysis with regard
to his counsel’s performance at the trial level. See, e.g.,
Tevlin, 621 F.3d at 66 (“A defendant's failure to satisfy one
prong of the Strickland analysis obviates the need for a court
to consider the remaining prong.”).
b.
Counsel’s Performance on Appeal
Petitioner
maintains
that
his
attorney’s
performance
on
appeal also amounted to ineffective assistance. (See Docket No.
33). Although Ortiz-Graulau failed to enumerate specific actions
of counsel and explain how these were deficient and prejudiced
the outcome of his case on appeal, the First Circuit opinion is
informative in that regard. (See id.).
To
argument
start
that,
with,
Petitioner
because
did
evidence
not
was
properly
lacking
develop
as
to
the
“the
circumstances surrounding SMN’s conduct and the taking of the
photographs,” the United States’ proof was insufficient to show
Ortiz-Graulau employed, used, persuaded, induced, enticed, or
coerced SMN. Ortiz-Graulau, 526 F.3d at 18. Nevertheless, the
First Circuit went on to hold that the evidence was sufficient
to sustain Petitioner’s conviction and, accordingly, affirmed
it. Id. at 19.
-19-
CIVIL NO. 09-1387(JAG)
20
Petitioner similarly failed to develop the argument that
his lawful, marriage-like relationship with SMN could be the
kind of conduct not within the likely purview of Congress when
it enacted 18 U.S.C. § 2251(a). Id. at 20. More specifically,
the
First
Circuit
complained
about
Petitioner’s
conclusory
statement that evidence of the relationship should have been
allowed, without ever expounding how such evidence might have
related to “any defensible reading of the statute.”11 Id.
Finally, the First Circuit was most alarmed by Petitioner’s
failure to object on appeal to a ruling of this Court, which
excluded from the proffer of proof SMN’s testimony concerning
the circumstances surrounding the taking of the photographs. Id.
The Circuit stated that this ruling, if it happened so as to not
contradict the granting of the United States’ motion in limine,
was “arguably a mistake.” Id. It further explained that “SMN was
perfectly entitled to testify as to facts bearing directly on a
specific
statutory
‘employ[ed],
element,
use[d],
namely,
persuade[d],
whether
induce[d],
Ortiz[-Graulau]
entice[d],
or
coerce[d]’ [SMN] in the conduct that was then photographed.” Id.
That
is,
SMN
could
have
“properly
offer[ed]
[]
factual
information about who suggested the photographs and the conduct
being photographed and related background.” Id. at 20 n.4. Given
11
The First Circuit further stated that “[a]s presented, the
argument
looks
simply
like
an
effort
to
invite
jury
nullification.” Ortiz-Graulau, 526 F.3d at 20.
-20-
CIVIL NO. 09-1387(JAG)
21
these failures, the Circuit suggested that Petitioner bring this
§ 2255 motion. Id. at 21.
The core of the First Circuit’s concerns seems to be the
scarcity of the evidence on the circumstances surrounding the
taking of the photographs and, particularly, the exclusion of
SMN’s testimony as to these circumstances.12 Nevertheless, even
assuming
that
no
competent
attorney
would
have
allowed
this
exclusion, and that counsel’s performance in this regard was
patently unreasonable, the result of the trial would not have
been different had SMN testified. Therefore, with regard to his
performance on appeal, Petitioner’s ineffective assistance of
counsel claim fails.
Section 2251(a) states, in relevant part:
Any person who employs, uses, persuades, induces,
entices, or coerces any minor to engage in, with the
intent that such minor engage in, any sexually
explicit conduct for the purpose of producing any
visual depiction of such conduct or for the purpose of
transmitting a live visual depiction of such conduct,
shall be punished as provided under subsection (e)….
18
U.S.C.
§
2251(a).
The
statute
does
not
define
the
terms
employ, use, persuade, induce, entice, or coerce. However, the
plain meaning canon of interpretation dictates that “[s]tatutory
words are… to be used in their ordinary and usual sense, and
with
the
meaning
commonly
attributed
12
to
them.”
Caminetti
v.
This is indeed puzzling, especially in view of the Circuit’s
affirmance of Ortiz-Graulau’s conviction.
-21-
CIVIL NO. 09-1387(JAG)
22
United States, 242 U.S. 470, 485-86 (1917). Accordingly, in our
memorandum and order denying Petitioner’s Rule 29 motion, this
Court adopted an ordinary meaning of the word use. (Crim. Docket
No. 73 at 4). Specifically, we held that, in the context of §
2251(a), the verb use means “[to] employ[] or avail[] oneself of
the use of a minor in order to create a visual depiction of
sexually explicit conduct.”13 (Id. at 4 (citing United States v.
Sirois, 87 F.3d 34, 41 (2nd Cir. 1996) (holding that the active
requirement of the term use is met when “[a] minor serves as the
subject of [sexually explicit] photography”))).
13
This interpretation of use is certainly broad, arguably
swallowing up the other terms listed in the statute and
contradicting the presumption that every statutory word captures
a distinct meaning. See, e.g., United States v. Ven-Fuel, Inc.,
758 F.2d 741, 751-52 (1st Cir. 1985) (“All words and provisions
of statutes are intended to have meaning and are to be given
effect, and no construction should be adopted which would render
statutory
words
or
phrases
meaningless,
redundant
or
superfluous.”). Nevertheless, in rejecting both a facial and an
as-applied challenge to § 2251(a), the First Circuit noted that
the purpose of Congress in enacting this statute was to
“eliminate the market for the sexual exploitative use of
children.” United States v. Morales-De Jesús, 372 F.3d 6, 16-18
(1st Cir. 2004) (internal quotations omitted). Therefore, the
Circuit held that the statute “reache[d] intrastate activity
that substantially affect[ed] the interstate child pornography
market,” and was therefore “a valid exercise of Congress’s
Commerce Clause power.” Id. at 16-17. Adopting an ordinary
meaning of the word use also furthers Congress’s purpose of
eliminating the child pornography market. A definition of the
word use that requires enticement or instigation would leave out
of Congress’s reach conduct by predators savvy enough to seek
out situations in which it would be difficult to accumulate such
evidence.
-22-
CIVIL NO. 09-1387(JAG)
The
First
23
Circuit
left
open
the
question
of
whether
“something less than instigation might suffice” to satisfy the
word use as utilized in the statute, holding instead that there
was
enough
evidence
for
a
reasonable
jury
to
infer
that
Petitioner “instigated at least some of the conduct.” OrtizGraulau, 526 F.3d at 19. But according to its ordinary meaning,
use requires less than instigation. Instigation is defined as
“[t]he action of… goading; an urging, spurring, or setting on;
incitement,
Instigation,
stimulation.”
Oxford
English
http://www.oed.com/view/Entry/97072
Dictionary,
(last
visited
Aug. 2, 2012). That is, instigation denotes active encouragement
or provocation by a defendant. Our definition of use, on the
other hand, requires only that a defendant avail himself of a
minor for the purpose of taking sexually explicit photographs.
Under this interpretation, it is irrelevant whether it was the
defendant or someone else who first suggested the photos, or
whether the minor wanted to be the subject of them. See United
States v. Street, 531 F.3d 703, 709 (8th Cir. 2008) (holding
that there was no error in a jury instruction stating that “[a]
minor's seemingly voluntary participation in sexually explicit
conduct and/or in producing images of such conduct is not a
defense” to a charge of production).
In light of the First Circuit’s holding that the evidence
was enough for a jury to infer that Ortiz-Graulau instigated
-23-
CIVIL NO. 09-1387(JAG)
24
some of the sexual conduct, the evidence must also be sufficient
for a jury to infer that Ortiz-Graulau used SMN.14 Accordingly,
we now hold a reasonable jury could find that Ortiz-Graulau used
the minor to create a visual depiction of sexually explicit
conduct and that, therefore, the admission of SMN’s testimony as
to who suggested the conduct or her willingness to participate
would have no effect on the probability that the result of the
proceeding would have been different.
Concerning
the
argument
that
Petitioner’s
marriage-like
relationship with the minor falls outside the likely purview of
Congress when it enacted 18 U.S.C. § 2251(a), this Court is
likewise
unconvinced.
Petitioner
relies
heavily
on
dicta
contained in the Morales-De Jesús First Circuit opinion, which
left
open
statute,
the
possibility
“particularly
if
for
the
as-applied
challenges
to
the
circumstances
involved
did
not
implicate child exploitation.” United States v. Poulin, 631 F.3d
17, 21 (1st Cir. 2011) (citing Morales-De Jesús, 372 F.3d at
18). The Circuit listed “the age of the minor, the relationship
14
Again, Petitioner admitted to having taken many of the
photographs. Ortiz-Graulau, 526 F.3d at 19. Furthermore, “the
difference in ages … and the fact that Ortiz[-Graulau]
participated in some of the sexual contact” further buttresses
the conclusion that Petitioner used the minor. Id. at 18-19.
Moreover, even if the Circuit were to hold that some instigation
is required under the use category of the statute, it already
affirmed Petitioner’s conviction, concluding that the evidence
was sufficient for a reasonable jury to find that Ortiz-Graulau
instigated some of the conduct. Id.
-24-
CIVIL NO. 09-1387(JAG)
25
between the defendant and the minor, the nature of the allegedly
sexually
explicit
conduct,
and
the
nature
of
the
visual
depiction of that conduct” as factors relevant to this inquiry.
Morales-De Jesús, 372 F.3d at 18. Nevertheless, consideration of
these
factors
Petitioner
leads
was
to
charged
the
for
conclusion
is
indeed
that
the
the
kind
conduct
of
conduct
Congress intended to make criminal.
The example presented by the First Circuit in Ortiz-Graulau
sets the stage for the Court’s analysis. The Circuit described a
situation
in
which
“a
husband
and
a
wife
[]
take
intimate
photographs of each other for their private use.” Ortiz-Graulau,
526 F.3d at 19. In light of “constitutional objections based on
marital or consenting-adult privacy rights,” the First Circuit
reasoned that Congress likely did not intend to criminalize such
behavior, “even if the instigator were twenty-one and the other
spouse seventeen, thus falling within the plain terms of the
statute’s prohibition.” Id. But the example provided is quite
different
from
the
facts
of
the
case
before
us.
First,
Petitioner is twenty-four years older than SMN, who was merely
fourteen at the time the pictures were taken. (Docket No. 42 at
2). Secondly, and as the First Circuit noted, Petitioner and SMN
were
not
legally
married.
Ortiz-Graulau,
526
F.3d
at
20.
Furthermore, after a search of his house, the authorities found
over fifty sexually explicit photographs of SMN, not just a
-25-
CIVIL NO. 09-1387(JAG)
26
small number of them. Id. at 18. This conduct is plainly within
the bounds of what Congress likely intended to criminalize by
enacting
18
U.S.C.
2251(a).15
§
Moreover,
the
constitutional
privacy protections that the First Circuit mentioned, afforded
to married couples and adults, are not applicable to this case.
Accordingly,
relationship
probability
admitting
with
that
evidence
the
the
minor
outcome
on
Petitioner’s
would
of
the
not
have
trial
marriage-like
altered
would
have
the
been
different. Thus, Petitioner’s ineffective assistance of counsel
claim with regard to his counsel’s performance on appeal fails.
15
The First Circuit, citing cases from other circuits, left open
the possibility of as-applied challenges to § 2251(a). MoralesDe Jesús, 372 F.3d at 18-21. In Corp, the Sixth Circuit reversed
a conviction under the possession of child pornography statute
holding that, because the defendant lacked intent to distribute
or share the picture, the conduct “was not of a type
demonstrated substantially to be connected or related to
interstate commerce….” United States v. Corp, 236 F.3d 325, 332
(6th Cir. 2001), abrogated by United States v. Corp, 668 F.3d
379 (6th Cir. 2012). Nevertheless, in its examination of the
case, the First Circuit emphasized the Sixth Circuit’s dicta
noting that the facts involved a single photograph of “a
seventeen-year-old girl, taken shortly before her eighteenth
birthday, engaging in consensual sexual activity” with a twentysix-year-old female. Id. at 326. In McCoy, similarly, the Ninth
Circuit reversed a conviction under the possession statute.
United States v. McCoy, 323 F.3d 1114, 1133-32 (9th Cir. 2003),
overruled by United States v. Gallenardo, 579 F.3d 1076 (9th
Cir. 2009). That Circuit also based its holding on the
defendant’s lack of economic or commercial intent. Id. However,
in its discussion, the First Circuit underlined the Ninth
Circuit’s dicta noting that McCoy involved a single picture that
had been taken by the minor’s intoxicated parent. Id. Even when
the First Circuit’s as-applied factors were based on other
circuits’ dicta, the facts of Corp and McCoy are distinguishable
from the facts of this case, which involves a fourteen year-old
girl and fifty pornographic photographs.
-26-
CIVIL NO. 09-1387(JAG)
2.
27
Petitioner’s Other Constitutional Claims
Petitioner raised three other constitutional claims in his
§ 2255 motion: that the Court did not allow him to present a
defense;
that
the
United
States
failed
to
prove
a
federal
criminal offense; and that Ortiz-Graulau was actually innocent.
(Docket
Nos.
33,
50).
According
to
the
discussion
above,
however, all of these claims fail.
Petitioner argues that, by excluding the testimony of SMN
at trial, this Court unconstitutionally undermined his right to
present
a
complete
Specifically,
have
shown
defense.
Petitioner
the
jury
(Docket
contends
“that,
that
far
No.
SMN’s
from
being
33
at
9-15).
testimony
would
‘coerced,’
or
‘enticed,’ or even ‘used,’ to take the photos at issue, the
pictures were every bit [SMN’s] idea, and her possession, as
[Ortiz-Graulau’s].” (Id. at 11). Nevertheless, the Court already
held that the term use is met when a minor serves as the subject
of
pornographic
concluded
that,
pictures.
given
Furthermore,
the
the
twenty-four-year
First
age
Circuit
difference
between them and the fact that Petitioner had sex with SMN and
took many of the photographs, the jury could reasonably infer
that Petitioner instigated SMN into producing those pictures.
Ortiz-Graulau, 526 F.3d at 19.
Petitioner
then
contends
that
the
Government
failed
to
prove the federal criminal offense with which he was charged.
-27-
CIVIL NO. 09-1387(JAG)
28
(Docket No. 33 at 28). Specifically, Petitioner argues that the
conduct he was charged for “falls squarely onto the behavior
that should be protected by the constitutional concerns outlined
in [Morales-De Jesús].” (Id.). Nevertheless, his arguments as to
the
lawfulness
of
his
relationship
with
the
minor
and
his
reference to the minor’s testimony that she wanted to be in the
pictures are unavailing. The Court already concluded that the
constitutional privacy protections, afforded to married couples
and consenting adults, are not applicable to this case. Again,
Petitioner
and
SMN,
who
was
fourteen
years
old,
were
never
legally married.
Finally,
(Id.
at
Petitioner
29-30).
He
brings
contends
a
claim
that
he
of
was
actual
not
innocence.
aware
of
the
illegality of his actions, and that this fact should have been
presented to the jury. (Id.). This claim fails given that, as
the
First
Circuit
concluded
in
Ortiz-Graulau,
“neither
the
statute nor precedent suggests that this is a rare instance in
which ignorance of the law is a defense.” 526 at 19.
CONCLUSION
For the reasons stated above, Petitioner’s motion for postconviction relief, (Docket No. 1), is hereby DENIED.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 13th day of August, 2012.
S/ Jay A. García-Gregory
-28-
CIVIL NO. 09-1387(JAG)
29
JAY A. GARCÍA-GREGORY
United States District Judge
-29-
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