Video Taped Consensual Sex with Minor Gets Federal Time
By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair
The federal statute that governs the production of child pornography provides, in part, that “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 . . . .” 1/
Most people think of the production of child pornography as child molesters collecting large quantities of the material for their own perverse use or as “smut peddlers” producing the material for profit on the black market. But the statute has the ability to reach into an individual’s bedroom and ensnare him in a web of serious legal consequences if he has consensual sex with a minor and records the event on a video camera.
That is what happened to 28-year-old Rubio Gadea Pliego in September 2006 when he invited four young males, including a 14-year-old, to his Minneapolis apartment for a party. 2/ During the course of the party, Pleigo performed consensual, although illegal, oral sex on the 14-year-old minor. Two days later Pliego called the minor and invited him, as well as the other young men, back over to his apartment for yet another party. This time, however, Pliego had secretly set up a video camera in his bedroom to record some of the party’s activities.
The camera recorded the three of the young men, including the minor, entering Pliego’s bedroom where they voluntarily watched porno movies. At some point the other two young men left the room leaving the minor alone with Pliego in the bedroom. The hidden camera then recorded the two engaged in a series of consensual sexual activities.
Nearly one year later, in August 2007, law enforcement authorities raided Pliego’s apartment and discovered the videotape depicting the 2006 sexual encounter with the minor. The videotape was found in a dresser drawer in the bedroom of the apartment. In January 2008 Pliego was indicted on one count of violating the federal production of child pornography statute.
What made Pliego’s possession of the videotape a federal crime as opposed to some state law violation for having unlawful sex with a minor? The manufacturer of the videotape was a Japanese-based company called TDK Corporation and the videotape was imported from Japan and distributed from company outlets either in Georgia or California. The Eighth Circuit Court of Appeals rejected Pliego’s direct appeal argument that the Government had failed to prove that he produced child pornography by actually using materials that had traveled interstate or in foreign commerce as required by the statute. The Court stated:
“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 [guilty] 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. “ 3/
Pliego also argued unsuccessfully that the trial court erred by not allowing him to present his lack of knowledge of the minor’s age as an affirmative defense.
The Ninth Circuit Court of Appeals is the only federal circuit that has recognized that mistake of the age of the minor can be an affirmative defense under the federal production of pornography statute. 4/
The Ninth Circuit has held that while the minor’s age is not an element of the federal child pornography statute, the First Amendment requires that a defendant charged under the statute be allowed to present a “mistake of age defense.” 5/ The Eighth Circuit, however, pointed out that it, along with the Eleventh Circuit Court of Appeals, have recently and quite explicitly refused to follow the Ninth Circuit’s lead on the “mistake of age defense.” 6/
The Eighth Circuit’s refusal to recognize the “mistake of age defense” is consistent the reasoning of the Fifth Circuit, and a host of other circuits, which have held that the age of the minor in not an element under the federal child pornography statute. 7/ These circuits relied upon a Senate Conference Committee Report that pointed out that when Congress deleted the word “knowingly” from the federal child pornography statute, it reflected an intent by Congress to say the actual age of the minor is not an element of a prosecution under the statute. 8/
All the Government must establish is that the subject of the pornography is in fact a minor under the age of eighteen.
The Rubio Gadea Pliego case, however, is disturbing. He was not the classic feared pedophile stalking Internet “chat rooms” in search of minors to sexually molest. Based on the Eighth Circuit account, he was a homosexual who got involved with some young men—one of them who was too young—and invited them to party and watch porno movies at this apartment. While the Eighth Circuit did not explain why Pliego elected to videotape the sexual encounter with the minor, it was indisputably a stupid thing to do, it appears it was the only time he had ever done such a thing because the cops found only one child pornographic videotape in his apartment—the one involving the 14-year-old.
The Eighth Circuit also did not reveal what kind of prison sentence the trial court imposed on Pliego but any prison sentence imposed under the federal child pornography statute has severe consequences. The statute requires a mandatory minimum sentence of 15 years with a maximum of 30 years. That is a severe penalty for a guy videotaping a consensual sexual encounter with a 14-year-old minor by any standard.
This case also raises a troubling question: why did the federal government exhaust so much valuable human and fiscal resources prosecuting a lone gay guy for videotaping consensual sex with a minor? This case should have been prosecuted in state court where Pliego would have faced far less severe punishment, probably a community supervised release, and would have been given an opportunity at counseling and treatment. We simply cannot fathom why the federal government chose to waste precious prosecutorial resources and impose yet another fiscal burden on an already overcrowded federal prison system to simply secure a single conviction under these circumstances.
Based on a reading of the Eighth Circuit’s ruling, the prosecutors in that office exhibited tremendous irresponsibility, with its power to seek excessive punishment, toward our criminal justice system and the taxpayers of this country with a prosecution that should have been handled in the state court system.
1/ 18 U.S.C. § 2251(a)
2/ United States v. Pliego, 2009 U.S. App. LEXIS 19484 (8th Cir. Aug. 31, 2009)
3/ Id., at Lexis 6-7.
4/ United States v. United States District Court for the Central District of California, 858 F.2d 534 (9th Cir. 1988)
5/ Id., 858 F.2d at 538, 542
6/ United States v. Wilson, 565 F.3d 1057, 1067-69 (8th Cir. 2009); United States v. Deverso, 518 F.2d 1215 (11th Cir. 2008)
7/ United States v. Crow, 164 F.2d 229 (5th Cir. 1999); United States v. Johnson, 376 F.3d 689 (7th Cir. 2004); United States v. Griffith, 284 F.3d 338 (2nd Cir. 2002)
8/ United States v. Pliego, supra, at Lexis 10
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair