# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued December 16, 2014

Decided December 22, 2014

Before

DIANE P. WOOD, Chief Judge

ILANA DIAMOND ROVNER, Circuit Judge

J OHN DANIEL TINDER, Circuit Judge

No. 14

‐ 1993

STEPHEN L. ROGERS,

Petitioner

‐ Appellant

,

v

.

UNITED STATES OF AMERICA,

Defendant

‐ Appellee

. Appeal from the United States District

Court for the Northern District of Illinois,

Eastern Division.

No. 13 c 6992

Matthew F. Kennelly,

J udge

.

O R D E R

Stephen Rogers was convicted of knowingly transferring obscene matter to a

minor, 18 U.S.C. § 1470; knowingly receiving child pornography, id. § 2252A(a)(2)(A);

and enticing a minor to engage in sexually explicit conduct for the purpose of

producing a visual depiction of that conduct, id. § 2251(a). After we affirmed his

convictions under § 1470 and § 2251(a), United States v. Rogers

, 474 F. App’x 463, 464– 65

(7th Cir.), cert. denied

, 133 S. Ct. 358 (2012), Rogers moved to vacate his § 2251(a)

conviction, see 28 U.S.C. § 2255, contending that his appellate counsel rendered

ineffective assistance by failing to challenge the sufficiency of the evidence underlying

that count. The district court denied the motion, but certified for appeal Rogers’s

challenge to his counsel’s performance concerning the sufficiency of the evidence. NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp

. P. 32.1No. 14

‐ 1993 Page 2

Because we decided in Rogers’s direct appeal that the evidence was sufficient to

persuade a reasonable jury of his guilt and because he does not show that he was

prejudiced by counsel’s failure to explicitly raise this challenge, we affirm the judgment.

This case involves Rogers’s online interactions with a fourteen

‐ year

‐ old girl

named Andrea and an undercover law

‐ enforcement officer posing as a

thirteen

‐ year

‐ old girl named “Emily.” 1 See Rogers

, 474 F. App’x at 465–66. In 2005

Rogers began e

‐ mailing and chatting online with Andrea; in June 2005 Andrea e

‐ mailed

him a photograph of her vagina and a photograph of her naked breasts. See id. at 465.

The following year Rogers began conversing online with Emily; Rogers told Emily that

he wanted to have sex with her and in June 2006 e

‐ mailed her a picture of an erect penis

protruding out of a pair of unzipped pants being held by a hand. Id. at 465–66.

Based on his exchanges with Emily, Rogers was charged with “knowingly

persuad[ing], induc[ing], entic[ing], or coerc[ing] [a minor], to engage in prostitution or

any sexual activity” (“Count 1”), 18 U.S.C. § 2422(b), and knowingly transferring

obscene matter to a minor (“Count 2”), id. § 1470; see Rogers

, 474 F. App’x at 466.

Rogers’s interactions with Andrea resulted in charges that he knowingly received child

pornography (“Count 3”), 18 U.S.C. § 2252A(a)(2)(A), and enticed a minor to engage in

sexually explicit conduct for the purpose of producing a visual depiction of that

conduct (“Count 4”), id. § 2251(a); see Rogers

, 474 F. App’x at 465–66. Rogers moved to

sever the counts pertaining to Emily from the counts relating to Andrea, but the district

court denied the motion and permitted trial to proceed on all counts. Rogers

, 474

F. App’x at 466–67.

At trial Andrea testified about her interactions with Rogers. She said that they

met in a chatroom and that he used the screenname “Hotthockey27” and the email

address “food773@yahoo.com.” Andrea testified that after Rogers e

‐ mailed her a

request for pictures of herself and she e

‐ mailed him pictures of her face, “Hotthockey

started asking me for pictures of my breasts and my vagina.” Andrea testified that she

had not wanted to take nude photographs, but eventually acquiesced—taking

photographs of her vagina and naked breasts and e

‐ mailing them to Rogers—so that

Hotthockey27 would stop “nagging” her to take them. The government introduced into

evidence several of Andrea’s e

‐ mail exchanges with food773@yahoo.com—none of

which contain a request for any “particular kind of picture”—but not her chats with

Hotthockey27 because she had not saved those messages.

1 We limit our discussion of the procedural history to the facts that are important to the

present case. A more detailed account is found in our decisions in Rogers

, 474 F. App’x

463 and United States v. Rogers

, 587 F.3d 816 (7th Cir. 2009).No. 14

‐ 1993 Page 3

A government investigator also testified at trial. The investigator said that he had

questioned Andrea about the nude photographs in an August 2007 interview, during

which Andrea mentioned food773@yahoo.com but said that she did not know why she

had taken the photographs. Only later, in an interview in January 2008, the investigator

testified, did Andrea mention Hotthockey27. Andrea testified, however, that she had

told government investigators about Hotthockey27 during the August 2007 interview.

A jury found Rogers guilty of Counts 2, 3, and 4 and not guilty of Count 1.

Rogers

, 474 F. App’x at 467. He filed a direct appeal challenging his convictions on

Counts 3 and 4 (concerning Andrea), arguing that he was prejudiced by the district

court’s refusal to sever those counts from Counts 1 and 2 (concerning Emily). He noted

that the government had not corroborated Andrea’s testimony that he requested nude

pictures. Thus, Rogers argued, the evidence supporting Counts 3 and 4 was so weak

that the jury must have found him guilty of those counts based on evidence of his

sexual conversations with Emily.

We rejected Rogers’s challenge, ruling that Rogers had waived his motion to

sever by failing to renew it at the close of evidence. See Rogers

, 474 F. App’x at 471–72.

“Assuming arguendo” that Rogers had not waived that motion, we concluded that he

did not prove that he was prejudiced by the refusal to sever. Id. at 472– 74. Although the

record was “unclear” as to whether Rogers had “expressly asked” Andrea to send

additional pictures of herself and “physical documentation

. . . that he specifically

requested nude pictures of her would have made her testimony all the more

incriminating,” we nevertheless concluded that “a reasonable jury could have been

persuaded of his guilt by her testimony.” Id. at 465, 472–74.

Rogers then brought a collateral attack under 28 U.S.C. § 2255, arguing that

appellate counsel had provided ineffective assistance by failing to challenge the

sufficiency of the evidence supporting his conviction on Count 4. The government, he

asserted, did not present any evidence showing that he had enticed Andrea to produce

—

rather than simply send —nude photographs. See 18 U.S.C. § 2251(a); United States v.

Broxmeyer

, 616 F.3d 120, 125–27 (2d Cir. 2010). Furthermore, Rogers contended,

“Andrea’s testimony was so unclear, impeached, and unsatisfactory” that it was

“insufficiently credible” to persuade a rational trier of fact of his guilt: None of his

e

‐ mails to Andrea corroborated her testimony that he had asked her for nude

photographs, a government investigator contradicted Andrea’s testimony that she had

told investigators about Hotthockey27 in August 2007, and Andrea initially told an

investigator that she did not know why she had taken the nude photographs. The

government responded that Andrea’s testimony was sufficient to support Rogers’s

§ 2251(a) conviction and that this court had already concluded that in his direct appeal.No. 14

‐ 1993 Page 4

The district court denied Rogers’s § 2255 motion. The court found that Andrea’s

testimony—that Hotthockey27 asked her to take nude photographs and she took the

photographs at his behest—showed that Rogers had “urged her to produce, and not just

send, sexually explicit photos of herself.” Moreover, the court concluded, Andrea’s

testimony was not so improbable that no reasonable trier of fact could have credited it.

Thus, the court determined, counsel was not ineffective for forgoing a challenge to the

sufficiency of the evidence. Although the court denied relief, it granted Rogers a

certificate of appealability.

On appeal Rogers maintains that appellate counsel was ineffective for neglecting

to challenge the sufficiency of the evidence substantiating his § 2251(a) conviction. To

succeed on a claim of ineffective assistance of counsel, Rogers must show both deficient

performance and prejudice. See Strickland v. Washington

, 466 U.S. 668, 687, 690, 694

(1984); Mertz v. Williams

, 771 F.3d 1035, 1041 (7th Cir. 2014). At issue here is prejudice:

whether appellate counsel should have challenged the sufficiency of the evidence

because that claim had a “reasonable probability” of “alter[ing] the outcome” of

Rogers’s direct appeal. See Brown v. Finnan

, 598 F.3d 416, 425 (7th Cir. 2010) (quotation

marks omitted). We will “overturn a conviction based on insufficient evidence only if

the record is devoid of evidence from which a reasonable jury could find guilt beyond a

reasonable doubt.” United States v. Johnson

, 729 F.3d 710, 714 (7th Cir. 2013) (citation and

quotation marks omitted).

Rogers asserts that the evidence was insufficient because, he says, Andrea never

testified that he asked her to take nude photographs. As we already concluded in

Rogers’s direct appeal, however, Andrea’s testimony was sufficient to convince a

reasonable jury that Rogers violated 18 U.S.C. § 2251(a) by inducing her to take nude

photographs of herself. See Rogers

, 474 F. App’x at 474. Even if that conclusion is dicta

and thus not binding as law of the case, see Wilder v. Apfel

, 153 F.3d 799, 803 (7th Cir.

1998); United States v. Bloate

, 655 F.3d 750, 755 (8th Cir. 2011); but see O ʹ Brien v. Cont’l Ill.

Nat’l Bank & Trust Co. of Chi.

, 593 F.2d 54, 59 n.6 (7th Cir. 1979) (explaining that “[a]n

alternative ground for decision” is not dicta); United States v. Sanchez

, 35 F.3d 673, 677–

78 (2d Cir. 1994) (explaining that alternative holding constitutes law of the case), Rogers

does not show that he was prejudiced by appellate counsel’s failure to explicitly

challenge the sufficiency of the evidence underlying Count 4. Contrary to Rogers’s

assertion, Andrea testified that Hotthockey27 asked her to take photographs of her

breasts and vagina and that she took the photographs so that he would stop “nagging”

her to take them. Thus, as the district court ruled, a rational jury could find that Rogers

induced Andrea to produce

, not just send

, sexually explicit photographs of herself. See 18No. 14

‐ 1993 Page 5

U.S.C. § 2251(a); United States v. Mayer

, 674 F.3d 942, 945– 46 (8th Cir.), cert. denied

, 133 S.

Ct. 357 (2012); Broxmeyer

, 616 F.3d at 125– 27.

Rogers also maintains that the evidence was insufficient because we noted in his

direct appeal that the record was “unclear” as to whether he had “expressly asked”

Andrea to send additional pictures of herself. But even if the record is unclear, the jury

was still allowed to believe Andrea’s statement that Rogers asked her to take the nude

photographs. The jury apparently credited that testimony, and we will not overturn a

conviction based on a credibility determination unless the testimony was “incredible as

a matter of law,” meaning that it was “physically impossible for the witness to observe

what he described, or

. . . impossible under the laws of nature for those events to have

occurred at all.” United States v. Farmer

, 717 F.3d 559, 562– 63 (7th Cir. 2013) (citation and

quotation marks omitted). Rogers does not meet this high burden. Even though the

e

‐ mails from food773@yahoo.com did not contain requests for nude photographs, a

reasonable jury could have credited Andrea’s testimony that she received messages

from Hotthockey27 asking that she take nude photographs. Moreover, a reasonable jury

could have credited her testimony even in light of the government investigator’s

testimony that Andrea initially told investigators that she did not know why she had

taken the photographs. See United States v. Rayl

, 270 F.3d 709, 713 (8th Cir. 2001)

(upholding § 2251(a) conviction based on witness’s trial testimony that “embellished”

facts as compared to witness’s statement to FBI).

AFFIRMED.