UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

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

________________ _________________ 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, pursu ant to 18 U.S.C. §§ 2251(a) and 2256, and sentenced to 360 months in prison. He appeals hi s convictions and sentence, arguing: (1) the prosecution failed to give him adequate notice of the charges against him, (2) the district court improperly ad mitted expert testimony and committed other

* After examining the briefs and appellate record, th is 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 This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel.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. FILED United States Court of Appeals Tenth Circuit 

### September 14, 2015
Elisabeth A. Shumaker Clerk of Court2 evidentiary errors, and (3) th e district court committed pr ocedural error in imposing his sentence. We exerci se jurisdiction under 28 U.S. C. § 1291 and affirm.
I. We provide only a brief overview of the facts to frame the is sues presented for our review. Mr. Gutierrez was charged w ith 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 explic it photographs were also adm itted at trial, although they were not the subjects of criminal charges. G overnment expert witnesses testified that they had examin ed the “metadata” or “EXIF” data, which is information about a picture that is embedded in the pi cture such as the da te and time the photo was taken, from Mr. Gutierrez’ s electronic devices to dete rmine the dates and times the photographs were taken. The government argued that Mr. Gutierre z asked D.G. to allow him to take pornographic photos of her in exchange fo r paying her cell phone bill. For his part, Mr. Gutierrez asserted that D.G. made up th e charges so she coul d get away from his control and strict rules. The jury convicted Mr. Gutierrez on al l counts. The district court then sentenced him to a below-guidelines senten ce of 360 months in prison. He appeals his convictions and sentence.3 II. Mr. Gutierrez contends that the supe rseding indictment was not specific enough to allow him to prepar e 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 accu sations 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 enable s the defendant to assert a double jeopardy defense.” United States v. Edwards , 782 F.3d 554, 56 2 (10th Cir.) (c itations and internal quotation marks omitted), petition for cert. filed (U.S. June 22, 2015) (No. 14-10403). Mr. Gutierrez challenge s the second factor, arguing that the superseding indictment did not provide the precise dates a nd 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 phot ograph that formed the basis of each count by “.jpeg” number. Further, the i ndictment described th e prohibited behavior and alleged that in producing each photogra ph, Mr. Gutierrez used materials that had been transported in intersta te and foreign commerce.4 We conclude that the supe rseding “indictment was su fficiently complete and precise to enable [Mr. Gutie rrez] to prepare a defense a nd 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) (re viewing 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) (rejec ting claim that “the indictment’s allegation of “from before on or about Ap ril 6, 1989 to on or about July 5, 1989” was “fatally defective in that it failed to a llege any reasonably ascertainable time period within which the conspiracy occurred”). Therefore, we hold that the superseding i ndictment “conforms to mini mal constitutional standards,” Edwards , 782 F.3d at 562. Mr. Gutierrez makes a related argumen t that the government did not timely provide him with the date-and- time-related content of the me tadata. He contends that he requested this information, but it was not revealed until th e eve of trial. But it was incumbent on Mr. Gutierr ez to take affirmativ e steps to gather fu rther 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 de sired more definite information for the proper preparation of a defense and to a void prejudicial surprise, the remedy was by motion for a bill of pa rticulars . . . .”); see also United States v. Doe , 572 F.3d 1162, 1176 (10th Cir. 2009) (“The proper method to challenge and prevent the prosecution5 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 de fense had access to the metadata from the beginning of the prosecution, al beit 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 ar gues that the FBI refused to provide any analysis of the metadata. But he has ci ted no authority requiri ng the government to interpret the metadata for hi m. Instead, § 3509(m)(2) provi des 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. Ther efore, 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-tria l 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, Ph ilip Michael Smith, a New Mexi co State Police agent, was accepted without objection as an expert in computer forensic s. Mr. Gutierrez contends that the district court erred in denying his Daubert motion without holding6 an evidentiary hearing. He further contends that the di strict court committed plain error in admitting the experts’ testimony. The district court has a gatekeeper ob ligation, imposed by Fed. R. Evid. 702, to “ensure that any and a ll scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert , 509 U.S. at 589. “[W]e re view de novo the question of whether the district court applied the proper standard [for ad mitting an expert’s testimony] and actually performed its gatek eeper 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 fu lfill 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 distri ct court “clearly erred or ventured beyond the limits of permissible choi ce 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 e xperts’ qualifications and thei r failure to furnish a report identifying the photographs they relied on. In his motion, Mr. Gu tierrez argued that neither expert had establishe d that he had qualified as an expert in a sufficient number of other cases. The district court obs erved that the number of times an expert had testified in other cases wa s not relevant to his or her qualifications to give expert7 testimony. Based on its review of the e xperts’ resumes and credentials, the court preliminarily found that they were qualified to give expe rt 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 th e district court noted that the government had provided the e xperts’ reports to the defe nse. The court found that the defense motion did not make any objec tions to the reports’ reliability. In addition, it was undisputed that the defe nse had access to th e metadata from the electronic devices for an independent examin ation. 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 holdi ng an evidentiary hearing. We turn to Mr. Gutierrez’ s argument that allowing th e experts to testify was plain error. As noted, defens e counsel neither renewed the Daubert motion nor objected at trial to allowing the witnesses to te stify as experts. “We will find plain error where there is (1) error, (2) that is plain, (3) whic h affects substantial rights, and (4) which seriously affect s the fairness, integrity or public reputation of judicial proceedings.” United States v. Sparks , 791 F.3d 1188, 1193 (10th Cir. 2015) (internal quotation ma rks omitted). Mr. Gutierrez asserts that the experts failed to explain why the photographs marked Exhibits 55/55a and 56/56a were relia ble, despite their a pparent corruption, as demonstrated by their identical digitiz ed 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 relies8 for this claim, see Fed. R. App. P. 28(a)(8)(A) (requi ring citation to the “parts of the record on which the appellant relies”), an d 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 im ages could not have been taken at the same moment. He had not been able to exam ine 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 point s 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 explaine d, 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 th at formed the basis of the charged offenses, Exhibits 29, 30, and 31. For th ese 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 mani pulated conflicted with Mr. Fisher’s opinion that it was not possible to manipu late 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 th e cell phone not to work. See DNM at 678. Agent Smith testified that wh en the photos were taken, the cell phone was active. Any minor c onflict was immaterial.9 Mr. Gutierrez’s remaining argument doe s 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 th e 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 date s 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 determin e the correct date and time ,” DNM at 669; (2) he had compared the times on Mr. Gutierrez’s com puter, the cell phones, and the internet activity, which were all c onsistent; and (3) based on th at information, he could conclude that the dates and times the govern ment alleged the photos were taken were accurate. In light of this record, we reject Mr. Gutierr ez’s characterization of Agent Smith’s opinion as merely guessing. We c onclude that Mr. Gutierrez has not shown that the district court erred in allowing the expert testim ony, let alone that it affected his substantial rights. Theref ore, reversal is not warranted under plain error review.10 IV. Mr. Gutierrez argues that the district court’s ruling to exclude evidence of D.G.’s sexual activity immediately follo wing his arrest violated the Sixth Amendment’s Confrontation Clause. The distri ct court granted in part and denied in part the government’s pretrial motion in lim ine to exclude eviden ce of D.G.’s sexual behavior. The court ruled that the beha vior 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 hi s close supervision. As to D.G.’s sexual behavior, pregnancy, marriage, and bi rth of her son, which occu rred after November 7, the court ruled that this evid ence was not relevant. We first consider whether the cour t’s evidentiary rulin g implicated the Confrontation Clause. “[T]he C onfrontation 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-examin ation based on concer ns about prejudice, confusion of the issues, or interrogation that is repe titive or only marginally relevant.” United States v. DeChristopher , 695 F.3d 1082, 1096 (10th Cir. 2012) (ellipses and internal quotation marks omitt ed). 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 quot ation marks omitted).11 We conclude that D. G.’s sexual behavior fo llowing her report to the authorities was not relevant to Mr. Gutierr ez’s defense that she fabricated the allegations in order to get away from his c ontrol. After she repor ted the crimes to the police, D.G. went to live in a youth shelte r where, under the de fense theory, she had no further motive to implicate her father. Mr. Gutierrez also clai med that D.G. ran away from the shelter, which had strict rules, so she c ould 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 pornogr aphic 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 take n before she left home or her ability to fabricate pornographic photog raphs. Moreover, D.G. testified that she lived at the youth shelter fo r seven months, DNM at 362, which detracts from the defense theory that she impl icated her father to escape his control, only to find herself in a more restric tive 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 impr operly 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 reco rd, we assume he refers to the following exchange:12 Q (by defense counsel): Do you remember the – the CYFD [Children, Youth and Families Department] la dy 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. Gutie rrez 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[e d] in evidence to prove the truth of the matter asserted”). Ac cordingly, 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 gove rnment’s evidence to establish the element of conviction of use of materials that were “maile d, shipped, or transported in or affecting interstate or foreign comme rce.” 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 fu rther testified that those devices would13 have had to cross state and c ountry lines to be present in New Mexico as of the date D.G. reported Mr. Gu tierrez’s crimes. Mr. Gutierrez filed a pretrial motion in limine seeking to ex clude the “made in China” evidence. The district court deni ed the motion unequivo cally. Although a pretrial motion in limine to exclude evidence does not necessarily preserve a claim of error for appeal, such a mo tion “may preserve an objec tion when the issue (1) is fairly presented to the distri ct 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 rule s definitively on the record—either before or at trial—a party need not renew an objec tion . . . to preserve a claim of error for appeal.”). Mr. Gutierrez’s mo tion in limine met these crit eria, so he preserved the issue for appeal. We re view 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 cont ravened 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 tria l” are testimonial. Crawford v. Washington , 541 U.S. 36, 59 (2004). We conclude that the manufacturing labels’ statem ent that the devices were made in China was not testimonial, i.e., ma de by the manufacturer with “the primary14 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 Clau se was not implicated. Mr. Gutierrez also argues that the “m ade 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 (10t h Cir. 1992) (holding manufacturer’s “Made in Spain” st amp 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 hearsa y). Consequently, th e district court did not abuse its discretion in admitting the evidence.
VI. Finally, defense counsel makes a cu rsory sentencing ch allenge, invoking Anders v. California , 386 U.S. 738, 744 (19 67) (authorizing defens e counsel to seek permission to withdraw from representing a cl ient in a direct cr iminal appeal when counsel has conscientiously examined the case and determined a ny appeal would be wholly frivolous). Counsel contends that the district court may have committed procedural error based on Agent Vaughan’s te stimony at sentencing that some of the pornographic images, other than the char ged 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 th at the record does15 not show that the district court consider ed Agent Vaughan’s testimony in setting the

sentence. Mr. Gutierrez did not preserve any proce dural 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) substant ially affects the fair ness, integrity, or public reputation of j udicial 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 pr onouncing 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 guide lines sentence was life in prison.