NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

ROBERT RUBEN ORNELAS, 

Defendant-Appellant.

No. 17-50067 

D.C. No. 8:14-cr-00183-CJC-1 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

Cormac J. Carney, District Judge, Presiding

Argued and Submitted May 14, 2020

Pasadena, California

Before: COLLINS and LEE, Circuit Judges, and PRESNELL,** District Judge.

Over a seven-year period, Robert Ruben Ornelas repeatedly traveled to the 

Philippines where he sexually abused two underage Filipino sisters, with the 

connivance of their aunts, and produced images and videos of that abuse. Ornelas 

was subsequently charged with two counts of engaging in illicit sexual conduct in a 

foreign place in violation of 18 U.S.C. § 2423(c) (Counts One and Two); three 

* This disposition is not appropriate for publication and is not precedent except as 

provided by Ninth Circuit Rule 36-3.

** The Honorable Gregory A. Presnell, United States District Judge for the Middle 

District of Florida, sitting by designation.

FILED

MAR 23 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

counts of production of child pornography outside of the United States in violation 

of 18 U.S.C. § 2251(c) (Counts Three, Four, and Five); and possession of child 

pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), (b)(2) (Counts Six and 

Seven). After a jury trial, Ornelas was convicted on all counts and sentenced to 

190 years in prison. Ornelas timely appeals. We reject all of Ornelas’s 

contentions, except that we remand for the limited purpose of determining whether 

there is a likelihood that the outcome at trial would have been different if certain 

materials sought in pretrial discovery had been disclosed.

1. The district court did not err in denying Ornelas’s motion to suppress the 

evidence seized at a search of his home in June 2013. 

a. Reviewing de novo, see United States v. Shryock, 342 F.3d 948, 975 (9th 

Cir. 2003), we conclude that the district court properly held that Ornelas failed to 

make the “substantial preliminary showing” required to necessitate a hearing to test 

the veracity of the affidavit that supported the search warrant of his home under 

Franks v. Delaware, 438 U.S. 154, 155–56 (1978). In arguing that a hearing was 

warranted, Ornelas relies on a brief declaration from his brother that purported to 

contradict some of that brother’s statements to law enforcement that were 

recounted in the warrant affidavit. Ornelas also notes that the warrant affidavit, in

recounting the brother’s statement that a niece had accused Ornelas of molesting 

her in the 1990s, did not note that an investigation into that accusation was closed 
3

on the grounds that the allegations were “unsubstantiated.” Even assuming 

arguendo that the warrant affidavit recklessly or intentionally misrepresented 

(1) the brother’s statements about a peeping-Tom allegation against Ornelas in 

2010; (2) the contents of a photo album with nude pictures found in Ornelas’s 

room in the 1990s; or (3) the reliability of the niece’s accusation of molestation (as 

recounted by Ornelas’s brother),1 we hold that Ornelas failed to make a 

“substantial preliminary showing” that these statements were “necessary to the 

finding of probable cause.” Franks, 438 U.S. at 155–56. 

In deciding whether Ornelas carried his burden on this score, our task is to

first excise the alleged misrepresentations and insert the alleged omissions and then 

“‘determine[] whether the affidavit, once corrected and supplemented, establishes 

probable cause.’” United States v. Ruiz, 758 F.3d 1144, 1148 (9th Cir. 2014) 

(citation omitted). Following that procedure here, we conclude that the affidavit 

would still amply have established probable cause. The brother’s short declaration 

did not contest the warrant affidavit’s description of the brother’s statements 

1 We reject out of hand Ornelas’s suggestion that the warrant affidavit misleadingly 

failed to mention that the brother told the FBI that he thought Ornelas was stealing 

from him and their mother and that he did not have a good relationship with 

Ornelas. The warrant affidavit specifically mentioned that the brother thought 

Ornelas “was involved in fraudulent activity involving his mother’s rental 

property.” And it was obvious that the two did not have a good relationship given 

that the warrant affidavit disclosed that the “case came to light” only after the 

brother had contacted the FBI to report Ornelas’s suspected involvement in child 

pornography. 
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recounting how he and his cousin had found on Ornelas’s computer numerous 

images of child pornography, including images that the brother believed depicted 

Ornelas having sex with young girls. Nor did Ornelas contest, in seeking a Franks

hearing, the warrant affidavit’s recital of the corroborating statements made by the 

cousin, who reported that, “out of the thousands of images on [Ornelas’s] 

computer, approximately thirty (30) percent were child pornography images” and 

that some of the images involved “children between the ages of two (2) and seven 

(7).” There was sufficient probable cause based on these unchallenged statements 

alone.

b. The district court also properly rejected Ornelas’s contention that, 

because the brother and cousin had discovered Ornelas’s large child pornography 

collection some 13 months before the warrant was sought, the information 

recounted in the warrant affidavit was too stale. Based on the warrant affidavit’s 

description of his relatives’ discovery of Ornelas’s extensive collection of child 

pornography, including suspected images of him engaged in sex with minors, he 

was plainly a person “who view[s] minors as sexual objects,” and the warrant 

affidavit specifically recounted the agent’s conclusion, based on her training and 

experience, that such persons typically “keep and cherish” their collection and 

“rarely discard” the images. We have relied on precisely such reasoning in 

rejecting similar staleness challenges. See United States v. Schesso, 730 F.3d 
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1040, 1047 (9th Cir. 2013) (warrant sought 20 months after single incident of 

downloading child pornography); United States v. Lacy, 119 F.3d 742, 745–46 (9th 

Cir. 1997) (10-month lapse). 

2. Reviewing de novo, see United States v. Ward, 747 F.3d 1184, 1188 (9th 

Cir. 2014), we reject Ornelas’s contention that the district court allowed a 

constructive amendment of the indictment, or impermissible variance from it, by 

permitting the Government to argue to the jury that it could convict Ornelas on 

Count One based on a sexual act that occurred before the conduct shown on the 

videotape associated with that count.

The victim in Count One (“J.J.”) testified that Ornelas touched her breasts 

and vagina before getting into the shower with her and videotaping that shower. 

The videotape depicts Ornelas masturbating while, at his direction, J.J. washed her 

pubic area, and she then apparently penetrated her vagina with her finger. There 

was no constructive amendment of the indictment in allowing the jury to convict 

based on the pre-videotape conduct, because the touching of J.J.’s breasts and 

vagina fell squarely within the allegations of the indictment: it occurred within the 

specified dates; it involved J.J. (who was identified as “Minor Female #1” in the 

indictment); the touching of her breasts and vagina constitutes “illicit sexual 

conduct” within the meaning of the provision alleged in the indictment, 18 U.S.C. 

§ 2423(f); and it occurred in the Philippines. Nothing in the terms of the 
6

indictment specified that the alleged conduct was limited to what was depicted on a 

particular video; indeed, no videotape is even mentioned in Count One of the 

indictment. The jury instructions likewise did not depart from the allegations of 

the indictment. Because the “‘terms of the indictment’” were not “‘altered, either 

literally or in effect,’” there was no constructive amendment. Ward, 747 F.3d at 

1189 (citation omitted); see also United States v. Adamson, 291 F.3d 606, 616 (9th 

Cir. 2002) (no constructive amendment where “the particular [conduct] proved at 

trial supported the same crime” alleged in the indictment).

Ornelas’s claim that there was nonetheless an impermissible variance is 

based on the representations made by the Government in response to Ornelas’s 

motion for a bill of particulars. In particular, Ornelas points to a footnote in the 

Government’s response, which states that the Government “has provided defense 

counsel with a list of the victims’ initials and years of birth and relevant video files 

location/path for Counts One and Two,” and that “[t]he video files depict the illicit 

sexual conduct” (emphasis added). This statement, Ornelas contends, required the 

Government to rely only on the conduct depicted in the video, to the exclusion of 

any additional conduct immediately preceding the videotape. See Adamson, 291 

F.3d at 610, 616 (finding impermissible variance in part because, at hearing on 

motion for a bill of particulars, Government had insisted that only a particular type 

of alleged misrepresentation was at issue). But Ornelas overlooks the fact that the 
7

italicized statement is immediately followed by a citation of the referenced letter, 

which was attached as an exhibit and which explicitly stated the Government’s 

view that, in providing this list, it was “not required to limit its proof at trial to any 

single image/video of child pornography from the designated hard drives.” While 

the situation might have been different had the Government relied on sexual 

conduct from a completely different episode on a different day, Ornelas can hardly 

claim “unfair surprise” from being confronted with testimony concerning prevideotape sexual conduct that was part of the same episode that included the

depicted shower. See United States v. Lopez-Gonzalez, 183 F.3d 933, 935 (9th Cir. 

1999). 

Because the jury could thus properly consider the pre-videotape illicit sexual 

conduct, the evidence at trial was sufficient to sustain Ornelas’s conviction on 

Count One, even assuming that he is correct that the videotape does not depict 

“illicit sexual conduct” as defined in 18 U.S.C. § 2423(f) and in the jury 

instructions.

3. Counts Three, Four, and Five charged Ornelas with producing child 

pornography outside the United States and then transporting it into the United 

States, in violation of 18 U.S.C. § 2251(c)(1), (c)(2)(B). With respect to these 

counts, the district court gave an aiding-and-abetting instruction that permitted the 

jury to find that some other person, such as one of the victims’ aunts, committed 
8

this offense and that Ornelas merely aided and abetted its commission.2 Ornelas 

contends that the instruction misdescribed the intent element because it did not 

make clear that Ornelas’s intent had to extend, not only to the production of the 

child pornography, but also to its transportation into the United States. “We 

review de novo whether the district court’s jury instructions misstated or omitted 

an element of the charged offense and review the district court’s formulation of 

jury instructions for abuse of discretion.” United States v. Chi Mak, 683 F.3d 

1126, 1133 (9th Cir. 2012). We find no prejudicial error.

Ornelas contends that the aiding-and-abetting instruction was misleading 

because it stated that Ornelas had to act “with the intent to facilitate production of 

child pornography outside the United States” (emphasis added), and it did not 

mention the subsequent transportation of that material into the United States. He 

argues that, by failing to make clear that the requisite intent had to extend to the 

transportation element, the instruction was deficient under Rosemond v. United 

States, 572 U.S. 65 (2014). Ornelas reads the quoted language out of context. See 

United States v. Rodriguez, 971 F.3d 1005, 1012 (9th Cir. 2020) (“Jury instructions 

2 Ornelas does not dispute that there was an adequate factual basis to permit the 

jury to conclude that one of the aunts both “persuade[d], induce[d], entice[d], or 

coerce[d]” the nieces to engage in sexually explicit conduct “for the purpose of 

producing any visual depiction of such conduct” and “transport[ed] such visual 

depiction to the United States . . . by any means.” 18 U.S.C. § 2251(c)(1), 

(c)(2)(B).
9

must be evaluated ‘as a whole, and in context,’ rather than in piecemeal.” (citation 

omitted)). Prior to listing the elements of aiding and abetting, the instruction stated

that Ornelas could “be found guilty of production of child pornography outside the 

United States as charged in Counts Three, Four, and Five, even if the defendant 

personally did not commit the act or acts constituting the crime” (emphasis added). 

That phrasing, in turn, would most reasonably be understood as a cross-reference 

to the instructions for Counts Three, Four, and Five, which define the elements of 

the crime of “production of child pornography outside the United States” and 

which unambiguously include the transportation element. Read as a whole, the 

instructions thus required that Ornelas have the intention to facilitate both the 

production of the child pornography and its transfer into the United States. 

Ornelas contends that the jury’s mid-deliberation question concerning the 

aiding-and-abetting instruction confirms that the instruction was prejudicially 

misleading. We disagree. In fact, the question confirms that the jury understood 

that the aiding-and-abetting instruction clearly referred back to the elements of 

Counts Three, Four, and Five as stated in the earlier instructions, because the 

question asked whether a finding that Ornelas had aided and abetted the “transport

of materials in Counts 3, 4 [and] 5 [was] sufficient to convict. (say yes to the third 

prong in each)” (emphasis added). And in responding to the note, the court 

instructed the jury that, as to the “second element” of aiding and abetting—i.e., 
10

whether Ornelas “aided, counseled, commanded, induced or procured” the 

commission of at least one element of the predicate offense—the jury could rely on 

“aiding and abetting the transport of the visual depictions that are charged in 

Counts Three, Four, and Five.” Nothing in this exchange suggests that the aidingand-abetting instruction permitted the jury to convict Ornelas without finding that 

he also intended to facilitate the transportation.

4. Ornelas argues that, during the testimony of the main chain-of-custody 

witness, the district court abused its discretion in allowing testimony and evidence 

alluding to other victims. The Government argues that some of these objections 

were not properly preserved and should be reviewed only for plain error, but we 

need not resolve that issue. Even assuming that the abuse-of-discretion standard 

applies, there is no basis for reversal. The challenged testimony helped to explain, 

inter alia, how the agents conducted an initial review of CDs that had been seized 

from Ornelas’s house at the local office of the Department of Homeland Security 

(“DHS”); how the witness had labeled CDs he reviewed; that the large volume of 

materials seized made it challenging to sort; why the witness had removed 

evidence from DHS’s custody, booked it into the Orange County Sheriff’s Office, 

and then turned it over to the Orange County Regional Computer Forensics Lab for 

examination; and how the witness was able to tie a particular CD to Ornelas. The 

details about how and why the agents handled the materials in the way that they 
11

did helped to present a complete picture of the chain of custody, and it was not an 

abuse of discretion to admit that testimony and evidence even if some of those 

details underscored the concern that Ornelas may have had other victims. See FED.

R. EVID. 403, 404(b); United States v. Loftis, 843 F.3d 1173, 1176–78 (9th Cir. 

2016); United States v. Harrington, 923 F.2d 1371, 1374 (9th Cir. 1991).

We also find no plain error in the admission of testimony, from the same 

witness, as to his understanding of “child pornography.” The testimony helped to 

explain how the witness chose to label the CDs that he reviewed in the way that he 

did, and its admission was therefore not plainly erroneous. And given that the jury 

was properly instructed on the legal definition of child pornography at the close of 

the case, there is no basis to conclude that the witness’s statement prejudicially 

affected the outcome in a way that “‘seriously affect[ed] the fairness, integrity or 

public reputation of judicial proceedings.’” United States v. Olano, 507 U.S. 725, 

736 (1993) (citation omitted). 

5. Shortly before trial, one of the persons on the Government’s witness list, 

who had been involved in the execution of the search warrant, committed suicide. 

The Government filed certain materials concerning the suicide ex parte and in 

camera in the district court, together with a memorandum explaining why, in the 

Government’s view, the materials did not need to be disclosed to the defense either 

under Federal Rule of Criminal Procedure 16 or under Brady/Giglio. The district 
12

court ruled that no disclosure was required, and Ornelas stated on the record that he 

wanted his “objections noted regarding the no disclosure decision,” which he 

understood was based on the conclusion that “there’s nothing to disclose regarding 

it as it relates to this case.” The court agreed that the objection was “duly noted 

and it’s preserved.”3

As the district court recognized, Ornelas was operating “in a vacuum,” 

because he had not seen the materials that had been submitted in camera. Having 

reviewed the materials, we conclude that the district court abused its discretion in 

failing to at least order that the materials be disclosed to defense counsel on an 

attorney’s-eyes-only basis. See United States v. Stever, 603 F.3d 747, 752 (9th Cir. 

2010) (discovery rulings are reviewed for abuse of discretion). Materiality is a 

“‘low threshold,’” requiring only that the information “may assist [Ornelas] in 

formulating a defense, including leading to admissible evidence.” United States v. 

Soto-Zuniga, 837 F.3d 992, 1003 (9th Cir. 2016) (citation omitted). We think that, 

in particular, the information contained on page 99 of the Government’s in camera

3 We therefore reject the Government’s suggestion that we should either not 

review, or review only for plain error, whether the materials should have been 

disclosed under Rule 16. Ornelas’s oral objection to the denial of disclosure was 

sufficient to preserve the issue under Federal Rules of Criminal Procedure 

12(b)(3)(E) and 47(b). And Ornelas’s objection that the court had erred in 

concluding that there was nothing to disclose “as it relates to this case” was 

sufficient to preserve a challenge to the materiality ruling that the district court 

necessarily made after being presented with the Government’s memorandum.
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excerpts of record confirms that this low standard is met. However, in the current 

procedural posture, good cause exists, as Ornelas himself suggests in his brief, for 

an order provisionally limiting disclosure of the documents to only defense counsel 

and not to Ornelas himself. See FED. R. CRIM. P. 16(d). 

Under these circumstances, we remand the case to the district court with 

instructions to require disclosure of the in camera materials on an attorney’s-eyesonly basis, and then to determine, after any appropriate additional procedures or 

disclosures, whether Ornelas can “show a likelihood that the outcome would have 

been different if the material had been disclosed.” Stever, 603 F.3d at 754. If the 

district court determines that disclosure of the documents “‘probably would have 

changed the outcome’ of the trial,” then the court must grant Ornelas’s request for

a new trial. United States v. Doe, 705 F.3d 1134, 1152 (9th Cir. 2013) (citation 

omitted). If, on the other hand, the district court determines that the failure to 

disclose the documents was harmless, Ornelas’s conviction stands. See id.

6. Finally, Ornelas argues there was cumulative error. Because we have 

found only one error (which on remand may not prove prejudicial), the cumulativeerror doctrine does not apply. See United States v. Laurienti, 611 F.3d 530, 551 

(9th Cir. 2010).

AFFIRMED IN PART AND REMANDED.