                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                        September 14, 2015
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 14-2129
                                                  (D.C. No. 1:12-CR-02222-WJ-1)
ANTONIO GUTIERREZ,                                           (D. N.M.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before TYMKOVICH, HOLMES, and McHUGH, Circuit Judges.
                 _________________________________

      Defendant-Appellant Antonio Gutierrez was convicted by a jury of three

counts of producing child pornography, pursuant to 18 U.S.C. §§ 2251(a) and 2256,

and sentenced to 360 months in prison. He appeals his convictions and sentence,

arguing: (1) the prosecution failed to give him adequate notice of the charges against

him, (2) the district court improperly admitted expert testimony and committed other



      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
evidentiary errors, and (3) the district court committed procedural error in imposing

his sentence. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

                                          I.

       We provide only a brief overview of the facts to frame the issues presented for

our review. Mr. Gutierrez was charged with taking sexually explicit photographs of

his daughter, D.G., who was sixteen years old at the time. The photographs were

found on Mr. Gutierrez’s laptop computer, his digital camera, and his cell phone. He

was charged with three counts based on images admitted at trial as Exhibits 29, 30,

and 31. Other sexually explicit photographs were also admitted at trial, although

they were not the subjects of criminal charges. Government expert witnesses

testified that they had examined the “metadata” or “EXIF” data, which is information

about a picture that is embedded in the picture such as the date and time the photo

was taken, from Mr. Gutierrez’s electronic devices to determine the dates and times

the photographs were taken.

       The government argued that Mr. Gutierrez asked D.G. to allow him to take

pornographic photos of her in exchange for paying her cell phone bill. For his part,

Mr. Gutierrez asserted that D.G. made up the charges so she could get away from his

control and strict rules.

       The jury convicted Mr. Gutierrez on all counts. The district court then

sentenced him to a below-guidelines sentence of 360 months in prison. He appeals

his convictions and sentence.



                                          2
                                           II.

      Mr. Gutierrez contends that the superseding indictment was not specific

enough to allow him to prepare a defense, in violation of the Sixth Amendment. See

Johnson v. Gibson, 169 F.3d 1239, 1252 (10th Cir. 1999) (“A charging instrument

may violate the Sixth Amendment by failing to provide a defendant with adequate

notice of the nature and cause of the accusations filed against him.”). “We review

the sufficiency of an indictment de novo. An indictment is sufficient if it sets forth

the elements of the offense charged, puts the defendant on fair notice of the charges

against which he must defend, and enables the defendant to assert a double jeopardy

defense.” United States v. Edwards, 782 F.3d 554, 562 (10th Cir.) (citations and

internal quotation marks omitted), petition for cert. filed (U.S. June 22, 2015)

(No. 14-10403). Mr. Gutierrez challenges the second factor, arguing that the

superseding indictment did not provide the precise dates and times he allegedly took

the photographs. Rather, the superseding indictment charged him with taking the

photographs “[o]n or about between August 1, 2011 and November 7, 2011.”

R. Doc. 25.

      The indictment also alleged that the prohibited conduct occurred in Bernalillo

County, New Mexico, and identified the photograph that formed the basis of each

count by “.jpeg” number. Further, the indictment described the prohibited behavior

and alleged that in producing each photograph, Mr. Gutierrez used materials that had

been transported in interstate and foreign commerce.



                                           3
      We conclude that the superseding “indictment was sufficiently complete and

precise to enable [Mr. Gutierrez] to prepare a defense and avoid prejudicial surprise

at trial and to bar the risk of double jeopardy.” United States v. Barbieri, 614 F.2d

715, 719 (10th Cir. 1980) (reviewing denial of a motion for a bill of particulars

seeking, among other things, “[t]he specific event, facts, conduct, or circumstances

upon which the allegations in the indictment are based”); see also United States v.

Edmonson, 962 F.2d 1535, 1541 (10th Cir. 1992) (rejecting claim that “the

indictment’s allegation of “from before on or about April 6, 1989 to on or about

July 5, 1989” was “fatally defective in that it failed to allege any reasonably

ascertainable time period within which the conspiracy occurred”). Therefore, we

hold that the superseding indictment “conforms to minimal constitutional standards,”

Edwards, 782 F.3d at 562.

      Mr. Gutierrez makes a related argument that the government did not timely

provide him with the date-and-time-related content of the metadata. He contends that

he requested this information, but it was not revealed until the eve of trial. But it was

incumbent on Mr. Gutierrez to take affirmative steps to gather further information if

he needed it to prepare his defense. See, e.g., Sullivan v. United States, 411 F.2d

556, 558 (10th Cir. 1969) (“If the accused desired more definite information for the

proper preparation of a defense and to avoid prejudicial surprise, the remedy was by

motion for a bill of particulars . . . .”); see also United States v. Doe, 572 F.3d 1162,

1176 (10th Cir. 2009) (“The proper method to challenge and prevent the prosecution



                                            4
from changing its theory of the case is through a bill of particulars.”). Mr. Gutierrez

did not file a motion for a bill of particulars.

       Furthermore, it is undisputed that the defense had access to the metadata from

the beginning of the prosecution, albeit only at the FBI office. See 18 U.S.C.

§ 3509(m)(1) (requiring child pornography to remain in the government’s custody).

Notwithstanding this access, Mr. Gutierrez argues that the FBI refused to provide any

analysis of the metadata. But he has cited no authority requiring the government to

interpret the metadata for him. Instead, § 3509(m)(2) provides only that the subject

material be made reasonably available to the defendant, his attorney, and any expert

witness, not for the government to interpret it for him. Therefore, we reject his claim

that the government hindered his ability to prepare a defense.

                                            III.

       Mr. Gutierrez next asserts that the district court erred in allowing two

government witnesses to testify as experts. He filed a pre-trial motion in limine to

exclude their testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc.,

509 U.S. 579 (1993). The district court did not hold an evidentiary hearing and

denied the motion without prejudice to a future Daubert motion. Mr. Gutierrez did

not file another motion. At trial, Michael Fisher, an electronics engineer and forensic

examiner for the FBI, was accepted without objection as an expert in cell phone

forensics. Similarly, Philip Michael Smith, a New Mexico State Police agent, was

accepted without objection as an expert in computer forensics. Mr. Gutierrez

contends that the district court erred in denying his Daubert motion without holding

                                             5
an evidentiary hearing. He further contends that the district court committed plain

error in admitting the experts’ testimony.

      The district court has a gatekeeper obligation, imposed by Fed. R. Evid. 702,

to “ensure that any and all scientific testimony or evidence admitted is not only

relevant, but reliable.” Daubert, 509 U.S. at 589. “[W]e review de novo the question

of whether the district court applied the proper standard [for admitting an expert’s

testimony] and actually performed its gatekeeper role in the first instance.” Dodge v.

Cotter Corp., 328 F.3d 1212, 1223 (10th Cir. 2003). We first note that the district

court was not required to hold an evidentiary hearing in order to fulfill its gatekeeper

function. See United States v. Nacchio, 555 F.3d 1234, 1253-54 (10th Cir. 2009)

(en banc). “We review for abuse of discretion both the denial of a Daubert hearing

and the district court’s decision whether to admit or exclude expert testimony.”

United States v. Turner, 285 F.3d 909, 912 (10th Cir. 2002) (citation omitted). We

will find an abuse of discretion if the district court “clearly erred or ventured beyond

the limits of permissible choice under the circumstances.” Id. (internal quotation

marks omitted).

      Mr. Gutierrez claims that the district court erred in not holding an evidentiary

hearing on the issues of the experts’ qualifications and their failure to furnish a report

identifying the photographs they relied on. In his motion, Mr. Gutierrez argued that

neither expert had established that he had qualified as an expert in a sufficient

number of other cases. The district court observed that the number of times an expert

had testified in other cases was not relevant to his or her qualifications to give expert

                                             6
testimony. Based on its review of the experts’ resumes and credentials, the court

preliminarily found that they were qualified to give expert opinions and denied the

motion without prejudice.

       As for Mr. Gutierrez’s argument that the experts had not identified the

underlying data they relied on, at the motions hearing the district court noted that the

government had provided the experts’ reports to the defense. The court found that

the defense motion did not make any objections to the reports’ reliability. In

addition, it was undisputed that the defense had access to the metadata from the

electronic devices for an independent examination. Based on our de novo review, we

conclude that the district court performed its gatekeeping function and did not abuse

its discretion in ruling without holding an evidentiary hearing.

       We turn to Mr. Gutierrez’s argument that allowing the experts to testify was

plain error. As noted, defense counsel neither renewed the Daubert motion nor

objected at trial to allowing the witnesses to testify as experts. “We will find plain

error where there is (1) error, (2) that is plain, (3) which affects substantial rights,

and (4) which seriously affects the fairness, integrity or public reputation of judicial

proceedings.” United States v. Sparks, 791 F.3d 1188, 1193 (10th Cir. 2015)

(internal quotation marks omitted).

       Mr. Gutierrez asserts that the experts failed to explain why the photographs

marked Exhibits 55/55a and 56/56a were reliable, despite their apparent corruption,

as demonstrated by their identical digitized date and time of January 1, 2007,

at 12:00:00. Mr. Gutierrez has not cited to the part of the record on which he relies

                                             7
for this claim, see Fed. R. App. P. 28(a)(8)(A) (requiring citation to the “parts of the

record on which the appellant relies”), and our review of Agent Smith’s testimony

revealed no discussion of Exhibit 56/56a. Nevertheless, Agent Smith testified that

24 images, including Exhibits 55/55a, showed that they were all digitized on the

computer on January 1, 2007, at 12:00:00, but all 24 images could not have been

taken at the same moment. He had not been able to examine the camera that took the

photos so he could not opine on the date the images were digitized, conceding that

the date(s) the 24 images were digitized were unreliable. See DNM at 667.1

Similarly, Mr. Gutierrez points to 19 photographs of D.G., Exhibits 97 through 115,

showing a download or modified date of April 5, 2000, when D.G. would have been a

small child. But as Agent Smith explained, the download/modification date is not

necessarily the date the photo was taken. See id. at 649-54.2 Mr. Gutierrez makes no

claim that the images were not of D.G. as a teenager. Moreover, none of the

challenged images are among the images that formed the basis of the charged

offenses, Exhibits 29, 30, and 31. For these reasons, admitting this evidence was not

plain error.

       1
         The trial transcript is consecutively paginated using a “DNM” label. We
refer to the transcripts using this designation.
       2
        Mr. Gutierrez argues that Agent Smith’s testimony that the date an image
was created on a cell phone could be manipulated conflicted with Mr. Fisher’s
opinion that it was not possible to manipulate the EXIF data on a cell phone. But
Agent Smith made clear that such manipulation would be very difficult, requiring
that connectivity be turned off, which would cause the cell phone not to work. See
DNM at 678. Agent Smith testified that when the photos were taken, the cell phone
was active. Any minor conflict was immaterial.

                                            8
       Mr. Gutierrez’s remaining argument does cover the charged images, however.

He contends that Agent Smith’s opinion on the dates the incriminating photographs

were taken was not scientific or reliable. He objects to the statement that all of the

dates and times “gave a good consensus.” Id. at 669. He argues that because some

of the images appeared to have been made in 2000 and 2007—dates that could not

have been correct given D.G.’s age on those dates—and thus appeared to be

corrupted, Agent Smith “simply pick[ed] out the dates and times remaining that

appear[ed] most often among the data, and declare[d] those dates and times to be

accurate as the ‘consensus.’” Aplt. Opening Br. at 42. He says Agent Smith

perceived a correlation between some of the images and then improperly assumed

there was a connection. But Agent Smith testified that (1) he had analyzed the

computers, Mr. Gutierrez’s and D.G.’s cell phones, and the cameras using “multiple

forensic programs to determine the correct date and time,” DNM at 669; (2) he had

compared the times on Mr. Gutierrez’s computer, the cell phones, and the internet

activity, which were all consistent; and (3) based on that information, he could

conclude that the dates and times the government alleged the photos were taken were

accurate. In light of this record, we reject Mr. Gutierrez’s characterization of Agent

Smith’s opinion as merely guessing. We conclude that Mr. Gutierrez has not shown

that the district court erred in allowing the expert testimony, let alone that it affected

his substantial rights. Therefore, reversal is not warranted under plain error review.




                                             9
                                           IV.

      Mr. Gutierrez argues that the district court’s ruling to exclude evidence of

D.G.’s sexual activity immediately following his arrest violated the Sixth

Amendment’s Confrontation Clause. The district court granted in part and denied in

part the government’s pretrial motion in limine to exclude evidence of D.G.’s sexual

behavior. The court ruled that the behavior occurring before D.G. reported her

father’s crimes on November 7, 2011, was relevant to Mr. Gutierrez’s theory that

D.G. wanted to escape his close supervision. As to D.G.’s sexual behavior,

pregnancy, marriage, and birth of her son, which occurred after November 7, the

court ruled that this evidence was not relevant.

      We first consider whether the court’s evidentiary ruling implicated the

Confrontation Clause. “[T]he Confrontation Clause guarantees an opportunity for

effective cross-examination,” but “not cross-examination that is effective in whatever

way, and to whatever extent, the defense might wish.” Delaware v. Fensterer,

474 U.S. 15, 20 (1985). Consistent with the Confrontation Clause, trial judges may

“impose reasonable limits on cross-examination based on concerns about prejudice,

confusion of the issues, or interrogation that is repetitive or only marginally

relevant.” United States v. DeChristopher, 695 F.3d 1082, 1096 (10th Cir. 2012)

(ellipses and internal quotation marks omitted). Thus, “we will reverse a district

court’s decision excluding evidence if, but only if, the proffered evidence is both

relevant and material.” Id. (brackets and internal quotation marks omitted).



                                           10
      We conclude that D.G.’s sexual behavior following her report to the

authorities was not relevant to Mr. Gutierrez’s defense that she fabricated the

allegations in order to get away from his control. After she reported the crimes to the

police, D.G. went to live in a youth shelter where, under the defense theory, she had

no further motive to implicate her father. Mr. Gutierrez also claimed that D.G. ran

away from the shelter, which had strict rules, so she could be with her boyfriend.

Therefore, Mr. Gutierrez argues that this evidence was relevant to contradict the

government’s “presentation of DG as an innocent child with no incentive to lie and

no ability to fabricate pornographic photographs.” Aplt. Opening Br. at 51. But he

has not explained how D.G.’s sexual behavior after she went to the shelter was

relevant to her incentive to lie about the photographs taken before she left home or

her ability to fabricate pornographic photographs. Moreover, D.G. testified that she

lived at the youth shelter for seven months, DNM at 362, which detracts from the

defense theory that she implicated her father to escape his control, only to find

herself in a more restrictive situation from which she soon fled. We affirm the

district court’s ruling excluding this evidence as not relevant.

      Mr. Gutierrez also contends that the district court improperly prevented him

from cross-examining D.G.’s brother Dustin. Dustin testified that shortly before

D.G.’s allegations, he had accused Mr. Gutierrez of abusing him. Although

Mr. Gutierrez has again not cited to the record, we assume he refers to the following

exchange:



                                           11
             Q (by defense counsel): Do you remember the – the CYFD
      [Children, Youth and Families Department] lady saying that she was not
      going to change custody [of D.G.] even after what you had told them?
             [Prosecutor]: Objection; hearsay.
DNM at 963. A bench conference was held, after which the court sustained the

hearsay objection.

      Mr. Gutierrez argues that the answer to the question would not have been

hearsay because it would have shown that after CYFD told Dustin it would not

change custody of D.G., Dustin had a motive to frame Mr. Gutierrez, with D.G.’s

help, to corroborate his charge that Mr. Gutierrez had abused him. We agree that the

proffered testimony clearly was intended to show the truth of the matter asserted—

the substance of what the CYFD lady told Dustin—and was inadmissible hearsay, see

Fed. R. Evid. 801(c)(2) (defining “hearsay” as a statement “offer[ed] in evidence to

prove the truth of the matter asserted”). Accordingly, the district court did not abuse

its discretion in sustaining the government’s hearsay objection. See United States v.

Gutierrez de Lopez, 761 F.3d 1123, 1132 (10th Cir.) (reviewing evidentiary rulings

for abuse of discretion), cert. denied, 135 S. Ct. 768 (2014).

                                           V.

      Mr. Gutierrez also challenges the government’s evidence to establish the

element of conviction of use of materials that were “mailed, shipped, or transported

in or affecting interstate or foreign commerce.” 18 U.S.C. § 2251(a). Agent Victoria

Vaughan testified that the two cell phones and the digital camera were stamped

“made in China.” DNM at 739-41. She further testified that those devices would

                                           12
have had to cross state and country lines to be present in New Mexico as of the date

D.G. reported Mr. Gutierrez’s crimes.

       Mr. Gutierrez filed a pretrial motion in limine seeking to exclude the “made in

China” evidence. The district court denied the motion unequivocally. Although a

pretrial motion in limine to exclude evidence does not necessarily preserve a claim of

error for appeal, such a motion “may preserve an objection when the issue (1) is

fairly presented to the district court, (2) is the type of issue that can be finally

decided in a pretrial hearing, and (3) is ruled upon without equivocation by the trial

judge.” United States v. Mejia-Alarcon, 995 F.2d 982, 986 (10th Cir. 1993);

United States v. Harrison, 296 F.3d 994, 1002 (10th Cir. 2002) (same); see also

Fed. R. Evid. 103(b) (“Once the court rules definitively on the record—either before

or at trial—a party need not renew an objection . . . to preserve a claim of error for

appeal.”). Mr. Gutierrez’s motion in limine met these criteria, so he preserved the

issue for appeal. We review his challenge for an abuse of discretion. Harrison,

296 F.3d at 1002.

       Mr. Gutierrez argues, however, that a de novo standard of review is required

because Agent Vaughan’s testimony contravened the Confrontation Clause. See

Gutierrez de Lopez, 761 F.3d at 1132 (“We review a claim of error involving the

Confrontation Clause de novo.”). The relevant inquiry is whether the statements of a

witness “absent from trial” are testimonial. Crawford v. Washington, 541 U.S. 36, 59

(2004). We conclude that the manufacturing labels’ statement that the devices were

made in China was not testimonial, i.e., made by the manufacturer with “the primary

                                             13
purpose . . . to establish or prove past events potentially relevant to later criminal

prosecution,” Davis v. Washington, 547 U.S. 813, 822 (2006). Thus, we reject

Mr. Gutierrez’s argument that the trade inscriptions were testimonial and conclude

that the Confrontation Clause was not implicated.

       Mr. Gutierrez also argues that the “made in China” label was unreliable

hearsay. But this circuit has held that a manufacturer’s marking is not hearsay.

United States v. Thody, 978 F.2d 625, 630-31 (10th Cir. 1992) (holding

manufacturer’s “Made in Spain” stamp on gun butt was not hearsay); see also United

States v. Buchanan, 604 F.3d 517, 522 (8th Cir. 2010) (holding manufacturer’s

markings on a safe and a key were not hearsay). Consequently, the district court did

not abuse its discretion in admitting the evidence.

                                           VI.

       Finally, defense counsel makes a cursory sentencing challenge, invoking

Anders v. California, 386 U.S. 738, 744 (1967) (authorizing defense counsel to seek

permission to withdraw from representing a client in a direct criminal appeal when

counsel has conscientiously examined the case and determined any appeal would be

wholly frivolous). Counsel contends that the district court may have committed

procedural error based on Agent Vaughan’s testimony at sentencing that some of the

pornographic images, other than the charged images, may have been accessed by

someone. He contends that this testimony conflicted with the experts’ trial testimony

that only one photograph was ever accessed. Counsel concedes that the record does



                                            14
not show that the district court considered Agent Vaughan’s testimony in setting the

sentence.

       Mr. Gutierrez did not preserve any procedural challenge in the district court,

so “we review only for plain error,” United States v. Lucero, 747 F.3d 1242, 1246

(10th Cir. 2014). Accordingly, “we will only vacate the sentence if: (1) there is

error; (2) that is plain; (3) that affects substantial rights, or in other words, affects the

outcome of the proceeding; and (4) substantially affects the fairness, integrity, or

public reputation of judicial proceedings.” Id. (internal quotation marks omitted).

       Mr. Gutierrez has not identified any error, let alone plain error, in the district

court’s imposition of his sentence. In pronouncing the below-guidelines sentence,

the district court gave no indication that it had relied on the testimony about the

images that had been accessed.3 Therefore, we affirm Mr. Gutierrez’s sentence.

                                             VII.

       For the reasons stated, we affirm Mr. Gutierrez’s convictions and sentence.


                                               Entered for the Court


                                               Jerome A. Holmes
                                               Circuit Judge




       3
           The district court noted that the guidelines sentence was life in prison.

                                             15
