                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 08-3288
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Minnesota.
Refugio Gadea Pliego,                    *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: June 9, 2009
                                 Filed: August 31, 2009
                                  ___________

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

      1
       The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the
Eastern District of Missouri, sitting by designation.
      2
       The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.
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.




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        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.




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                                     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


                                         -4-
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)).

      3
        In light of this holding, we need not consider the government's argument that
Pliego's conviction should be upheld even if he copied or spliced the footage onto the
videotape.

                                           -5-
       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
(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. 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. 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.

       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 "expressly
excepted 'sex offenses, such as rape, in which the victim's actual age was
determinative despite defendant's reasonable belief that the girl had reached age of
consent.'" Id. at 72 n.2 (quoting Morissette v. United States, 342 U.S. 246, 251 n.8
(1952)). The Court explained that, "as in the criminalization of pornography
production at 18 U.S.C. § 2251, the perpetrator confronts the underage victim
personally and may reasonably be required to ascertain that victim's age." Id. (internal
citation omitted).

      Additionally, in considering the legislative history of § 2252, the Court
observed that a Senate Conference Committee Report noted that the deletion of the
word "knowingly" from § 2251(a) "reflect[ed] an 'intent that it is not a necessary
element of a prosecution that the defendant knew the actual age of the child.'" Id. at
76 (quoting S. Conf. Rep. No. 95-601, at 5 (1977)). Emphasizing that "the new bill

                                          -6-
retained the adverb 'knowingly' in § 2252," the Court explained "[t]he difference in
congressional intent with respect to § 2251 versus § 2252" as follows:

      The difference . . . reflects the reality that producers are more
      conveniently able to ascertain the age of performers. It thus makes sense
      to impose the risk of error on producers. Although producers may be
      convicted under § 2251(a) without proof they had knowledge of age,
      Congress has independently required both primary and secondary
      producers to record the ages of performers with independent penalties for
      failure to comply.

Id. at 76 & n.5 (internal citation omitted).

       In light of the differing natures of the conduct proscribed by §§ 2251 and 2252,
the legislative history of the statutes, and the Supreme Court's explicit statement that
a defendant may be convicted under § 2251(a) without proof that he or she had
knowledge of the victim's age, Pliego's reliance on X-Citement Video is unavailing.
We hold that the district court did not abuse its discretion in refusing to instruct the
jury that knowledge of the victim's age is an element of § 2251(a).4



      4
         Other federal appellate courts that have considered this issue have likewise
concluded that § 2251(a) does not contain a scienter requirement. See United States
v. Johnson, 376 F.3d 689, 693 (7th Cir. 2004) (noting "that the commission of the
completed offense under § 2251(a) . . . contains no requirement that the defendant
know that the performer is a minor"); United States v. Griffith, 284 F.3d 338, 349 (2d
Cir. 2002) (relying on X-Citement Video to reject the defendants' "argument that the
district court's charge to the jury omitting scienter of age under § 2251(a) was
erroneous"); United States v. Crow, 164 F.3d 229, 236 (5th Cir. 1999) (holding that
the district court did not commit plain error in failing to instruct the jury that the
defendant had to know that the victim was a minor in order to be convicted under
§ 2251(a)); cf. United States v. Deverso, 518 F.3d 1250, 1257 (11th Cir. 2008)
(holding that the district court did not err in refusing to give a mistake-of-age-defense
jury instruction because "knowledge of age is not an element of [§ 2251(c)]").

                                          -7-
                                C. Affirmative Defense
       Pliego also argues that the district court erred in ruling that he could not raise
his lack of knowledge of V.A.P.'s age as an affirmative defense, relying on United
States v. United States District Court for the Central District of California, 858 F.2d
534 (9th Cir. 1988). In that case, the Ninth Circuit held that, although "[t]he
defendant's awareness of the subject's minority is not an element of" § 2251(a), "the
[F]irst [A]mendment requires a reasonable mistake of age defense." Id. at 538, 542.

         But in United States v. Wilson we declined to adopt the Ninth Circuit's rationale
and rejected the defendant's argument "that not allowing a reasonable-mistake-of-age
defense to charges under section 2251(a) makes the statute overbroad, thereby chilling
protected speech in violation of the First Amendment." 565 F.3d 1059, 1067–69 (8th
Cir. 2009). First, we explained that "[t]he analogy of producers to statutory rapists
serves to overcome the background presumptions of mens rea and scienter." Id. at
1069. Second, we stated that "given the opportunity producers have to verify the age
of the actors they employ, we do not think the risk of error or fraud in determining
someone's age is significant enough to chill 'a substantial amount of protected speech
. . . .'" Id. (quoting Ashcroft v. Free Speech Coal., 535 U.S. 234, 255 (2002)). We
concluded that "[t]hese two factors, combined with the strong interest the state has in
protecting children from sexual exploitation, fatally undermine[d] [the defendant's]
First Amendment claim." Id. We thus held "that the First Amendment does not require
a reasonable-mistake-of-age defense to charges of producing child pornography in
violation of section 2251(a)." Id.

      In light of Wilson, we hold that the district court did not err in ruling that Pliego
could not raise his lack of knowledge of V.A.P.'s age as an affirmative defense.

                             D. Commerce Clause
    Finally, Pliego argues that § 2251(a) exceeds Congress's authority under the
Commerce Clause. But we have previously upheld the validity of § 2251 against

                                           -8-
Commerce Clause attack. See, e.g., United States v. Betcher, 534 F.3d 820, 824 (8th
Cir. 2008) (rejecting the defendant's argument that "the mere transportation across
state or international lines of cameras used in the manufacture of child pornography
does not constitute an impact upon interstate commerce sufficient to form a
jurisdictional basis upon which Congress could validly prohibit the charged conduct
under its Commerce Clause powers"). Pliego's argument that § 2251(a) exceeds
Congress's authority under the Commerce Clause is without merit.

                                 III. Conclusion
      Accordingly, we affirm the judgment of the district court.
                     ______________________________




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