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Ortiz-Graulau v. United States

United States Court of Appeals, First Circuit

June 20, 2014

HAROLD ORTIZ-GRAULAU, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent

Petition for certiorari filed at, 12/15/2014

Page 13

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Jay A. Garcí a-Gregory, U.S. District Judge.

Rachel Brill for petitioner.

John A. Mathews II, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Velez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief, for respondent.

Before Howard, Selya and Lipez, Circuit Judges.

OPINION

Page 14

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 28 U.S.C. § 2255 petition for collateral relief. After review, we affirm the district court's denial of the petition.

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, 18 U.S.C. § 2252(a)(4)(B), and exploiting a minor for the purpose of producing the photographs, 18 U.S.C. § 2251(a). The child pornography at issue

Page 15

here consists of sexually explicit photographs of a female referred to in the record as " SMN." [1] Ortiz and SMN were living together and were in a lawful, consensual relationship. At the time that the photographs were taken, SMN was fourteen years old and Ortiz was thirty-eight. The age of consent for sexual relations in Puerto Rico during the relevant period was fourteen.[2] When Ortiz and SMN went to a local Walgreens to develop rolls of film, employees alerted authorities to what they believed were sexually explicit photographs of a minor. A subsequent search of Ortiz's home revealed over fifty sexually explicit photographs of SMN. Upon Ortiz's arrest, he admitted that he had a sexual relationship with SMN and that he was aware that she was fourteen. Prior to trial, Ortiz pled guilty to possessing sexually explicit photographs of a minor. He went to trial on the production count.

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." 18 U.S.C. § 2251(a). The statute defines a minor as anyone under eighteen. Id. § 2256(1).

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 government 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 ...


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