U.S. v. Pliego

• Decision Date: 31 August 2009
• Docket Number: No. 08-3288.,08-3288.
• Citation: 578 F.3d 938
• Parties: UNITED STATES of America, Appellee, v. Refugio Gadea PLIEGO, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

578 F.3d 938

UNITED STATES of America, Appellee, v. Refugio Gadea PLIEGO, Appellant.

No. 08-3288.

United States Court of Appeals, Eighth Circuit.

Submitted: June 9, 2009.

Filed: August 31, 2009.

Douglas Olson, AFPD, argued, Minneapolis, MN, for appellant.

Tracy Lynne Perzel, AUSA, argued, Carol M. Kayser, AUSA, on the brief, Minneapolis, MN, for appellee.

Before SMITH, and SHEPHERD, Circuit Judges, and LIMBAUGH,¹ District Judge.

SMITH, Circuit Judge.

Refugio Gadea Pliego was convicted of producing child pornography, in violation of 18 U.S.C. § 2251(a) and (e), for secretly videotaping a sexual encounter he had with a 14-year-old boy. On appeal, Pliego argues that (1) there was insufficient evidence to support the jury's determination that he produced child pornography using materials that had traveled in interstate or foreign commerce; (2) the district court² erred in refusing to instruct the jury that knowledge of the victim's age is an element of § 2251(a); (3) the district court erred in ruling that he could not raise his lack of knowledge of the boy's age as an affirmative defense; and (4) § 2251(a) exceeds Congress's authority under the Commerce Clause. We reject Pliego's arguments and affirm the judgment of the district court.

I. Background

Sometime in 2006 or 2007, Pliego, then 28, invited four young males, including 14-year-old V.A.P., to his Minneapolis apartment for a party. During the course of the evening, Pliego performed oral sex on V.A.P. Approximately two days later, Pliego telephoned V.A.P. and invited him and the other boys to return to his apartment. After arriving at Pliego's apartment, three of the boys entered Pliego's bedroom, where Pliego played some pornographic films. Eventually, V.A.P. and Pliego were alone in the bedroom; Pliego performed oral sex on V.A.P., and the two engaged in intercourse. Unknown to V.A.P., Pliego recorded their sexual encounter with a hidden video camera.

On August 20, 2007, police officers executed a search warrant at Pliego's apartment. Officers seized an 8mm videotape containing footage of Pliego's sexual encounter with V.A.P. from the bottom drawer of a dresser in Pliego's bedroom. Officers also seized an 8mm video camera from the bedroom of Pliego's housemate. On January 8, 2008, a superseding indictment was filed charging Pliego with one count of producing child pornography, in violation of 18 U.S.C. § 2251(a) and (e).

Prior to trial, Pliego filed a motion requesting that the district court require the government to prove knowledge of V.A.P.'s age as an element of the charged offense and to allow Pliego to raise mistake of age as an affirmative defense. The court denied Pliego's motion.

At Pliego's jury trial, a special agent with the Minnesota Bureau of Criminal Apprehension (MBCA) testified that he viewed the 8mm videotape seized from the bottom drawer of Pliego's dresser. According to the special agent, the videotape is approximately two hours in length and consists of 14 or 15 scenes, one of which contains footage of Pliego's sexual encounter with V.A.P. That scene, which is more than 30 minutes in length, shows Pliego making adjustments to the camera in a bedroom. Three young males then enter the room and sit on a bed, presumably watching television. After two of the boys leave the room, Pliego and V.A.P. engage in hand-to-genital, mouth-to-genital, and genital-to-anal contact. The special agent testified that the scene is somewhere in the middle of the videotape and that it is interrupted by other scenes at certain junctures. The special agent stated that it is common for child pornography to be spliced onto videotapes containing other material, but he explained that he could not determine whether the scene at issue was placed onto the videotape and that he undertook no forensic analysis to determine if the scene was spliced onto the videotape.

Another MBCA special agent who participated in the execution of the search warrant at Pliego's apartment testified that he found no evidence of video editing devices, no evidence of devices that could be used to transfer or copy 8mm media, and no evidence that videotapes had been cut and put back together. An employee of TDK Corporation—the manufacturer of the videotape—testified that the 8mm videotape was imported from Japan and distributed from either California or Georgia.

Pliego requested the district court to instruct the jury that knowledge of the victim's age is an element of § 2251(a). The court interpreted Pliego's request as an objection to the court's proposed instructions and overruled the objection. The jury found Pliego guilty, and the district court sentenced him to 180 months' imprisonment, the statutory minimum under § 2251(e), followed by supervised release for life.

II. Discussion

A. Sufficiency of the Evidence

Pliego's primary argument on appeal is that there was insufficient evidence to support the jury's determination that he produced child pornography using materials that had traveled in interstate or foreign commerce. We "review[] the sufficiency of the evidence de novo, viewing the evidence in the light most favorable to the verdict. Reversal of a conviction is proper only if no reasonable jury could have found the defendant guilty beyond a reasonable doubt." United States v. Kent, 531 F.3d 642, 651-52 (8th Cir.2008) (internal citation omitted). We "resolv[e] any evidentiary conflicts in the government's favor," United States v. Jourdain, 433 F.3d 652, 656 (8th Cir.2006), and "giv[e] the government the benefit of all reasonable inferences," United States v. Termini, 992 F.2d 879, 881 (8th Cir.1993).

Pliego was convicted of violating 18 U.S.C. § 2251(a), which provides as follows:

Any 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 or for the purpose of transmitting a live visual depiction of such conduct, shall be punished as provided under subsection (e) ... if that visual depiction was produced or transmitted using materials that have been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means....

Pliego concedes that the government established that the 8mm videotape seized from his bedroom dresser was manufactured outside of Minnesota, but he argues that the government failed to prove "that this was the tape that was used to produce the visual depiction at issue in the case." Pliego emphasizes that the MBCA special agent who reviewed the videotape testified that (1) he could not determine whether the scene at issue was placed onto the videotape, (2) he undertook no forensic analysis to determine if the scene was spliced onto the videotape, and (3) it is common for child pornography to be spliced onto videotapes containing other material. But Pliego points to no evidence in the record supporting his conjecture that the footage of his sexual encounter with V.A.P. was originally produced using another recording device.

The evidence supports the jury's verdict. The 8mm videotape was found in the very same room where Pliego videotaped his sexual encounter with V.A.P., an 8mm video camera was found elsewhere in Pliego's apartment, and there was no evidence of video editing equipment in the apartment. "The government's evidence need not exclude every reasonable hypothesis of innocence," and "[i]f the evidence rationally supports two conflicting hypotheses, the reviewing court will not disturb the conviction." United States v. Serrano-Lopez, 366 F.3d 628, 634 (8th Cir.2004) (internal quotations, alteration, and citations omitted). Indeed, "the jury's verdict must be upheld if any rational interpretation of the evidence, regardless of countervailing evidence, would allow a reasonable-minded jury to conclude guilt beyond a reasonable doubt." United States v. Jimenez-Serrato, 336 F.3d 713, 715 (8th Cir. 2003). We are convinced that a reasonable jury could have found beyond a reasonable doubt that the 8mm videotape seized from Pliego's bedroom dresser was the videotape used to record Pliego's sexual encounter with V.A.P.³

B. Jury Instruction

Pliego next argues that the district court erred in refusing to instruct the jury that knowledge of the victim's age is an element of § 2251(a). "We review a district court's formulation of jury instructions for abuse of discretion and consider whether the instructions `correctly state the applicable law.'" United States v. Walker, 428 F.3d 1165, 1171 (8th Cir.2005) (quoting United States v. Milk, 281 F.3d 762, 768 (8th Cir.2002)).

Pliego concedes that § 2251(a) does not contain an express scienter requirement, but he relies on United States v. X-Citement Video, Inc., 513 U.S. 64, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994), in support of his position that knowledge of the victim's age is an element of the offense and that the jury should have been instructed accordingly. In X-Citement Video, the Supreme Court considered whether knowledge of the victim's age is an element of 18 U.S.C. § 2252(a), which prohibits the interstate or foreign transport, shipment, receipt, distribution, and reproduction of visual depictions of minors engaged in sexually explicit conduct. Id. at 65-66, 115 S.Ct. 464. The Court held that knowledge of the victim's age is an element of § 2252(a), despite acknowledging that this conclusion is inconsistent with "[t]he most natural grammatical reading" of the statute. Id. at 66, 68, 78, 115 S.Ct. 464. The Court emphasized that its prior cases "suggest that a statute completely bereft of a scienter requirement as to the age of the performers would raise serious constitutional doubts." Id. at 78, 115 S.Ct. 464.

Pliego misreads X-Citement Video. The Supreme Court distinguished § 2251(a), the statute at issue in this case, from § 2252(a). First, the Court noted that it had previously observed that the common law presumption of mens rea ...