UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee,

v.

ROGELIO HERNANDEZ RODRIGUEZ, 

 Defendant - Appellant.

No. 20-5017

(D.C. No. 4:19-CR-00132-GKF-1)

(N.D. Okla.)

_________________________________

ORDER AND JUDGMENT*

_________________________________

Before BRISCOE, MATHESON, and CARSON, Circuit Judges.

_________________________________

Rogelio Hernandez Rodriguez challenges the sufficiency of the evidence 

supporting his convictions under 18 U.S.C. §§ 2251(a), (e) and 2252(a)(4)(B), (b)(2), for 

producing and possessing sexually explicit visual depictions of a minor. He does not 

challenge the sufficiency of the evidence that he possessed child pornography but 

contends the prosecution failed to introduce sufficient evidence that the images were 

“produced” using materials that had been transported in interstate or foreign commerce. 

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

* This order and judgment is not binding precedent, except under the doctrines of 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.

FILED

United States Court of Appeals

Tenth Circuit

February 5, 2021

Christopher M. Wolpert

Clerk of Court
2

I. BACKGROUND

We describe (A) the interstate or foreign commerce elements of §§ 2251 and 2252 

that the prosecution needed to prove at trial and (B) the procedural background.

A. Interstate or Foreign Commerce Elements

Under 18 U.S.C. § 2251(a), a defendant may be convicted for causing a minor to 

engage in sexually explicit conduct for the purpose of creating a visual depiction of that 

conduct “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, including by computer.”

Under 18 U.S.C. § 2252(a)(4)(B), a defendant may be convicted for “knowingly 

possess[ing]” a visual depiction of a minor engaging in sexually explicit conduct “which 

was produced using materials which have been mailed or . . . shipped or transported 

. . . using any means or facility of interstate or foreign commerce or in or affecting 

interstate or foreign commerce,” and if “the producing of such visual depiction involves 

the use of a minor engaging in sexually explicit conduct.”

Under both § 2251(a) and § 2252(a)(4)(B), “producing” is defined as “producing, 

directing, manufacturing, issuing, publishing, or advertising.” 18 U.S.C. § 2256(3).

B. Trial Proceedings

A federal grand jury indicted Mr. Hernandez Rodriguez for “Sexual Exploitation 

of a Child” in violation of 18 U.S.C. § 2251(a), (e) and “Possession of Child 

Pornography” in violation of § 2252(a)(4)(B), (b)(2). ROA, Vol. 1 at 11-14. At trial, the 
3

prosecution introduced an external hard drive and a memory card belonging to Mr. 

Hernandez Rodriguez. The hard drive, which was manufactured in Malaysia, contained 

images of child pornography. The memory card, which was manufactured in China, also 

contained such images.

FBI Special Agent Adam Reynolds testified about the images for the prosecution. 

He explained that he has “training and experience doing computer forensics and 

computer analysis.” ROA, Vol. 2 at 86. He used the images’ file names and “metadata” 

to explain the dates the original images were created and the date each image was 

transferred to Mr. Hernandez Rodriguez’s hard drive or memory card. Id. at 102-10.1

Special Agent Reynolds testified that, “on electronic devices,” an image’s “create 

date” is “whe[n] it was taken,” but that “if you copy to another device, you have another 

create date.” ROA, Vol. 2 at 100. He confirmed “the create date that is on that hard 

drive is going to be the date that the image was moved to that storage device.” Id.

In its closing argument, the prosecution contended the jury “heard that the hard 

drive and the memory chip were made in China and Malaysia. These things had to travel 

in foreign commerce to arrive here in the state of Oklahoma. They were not 

manufactured here. [The jurisdictional nexus] element is satisfied by that.” Id. at 120.

1 Special Agent Reynolds explained that “metadata” refers to “the real date and 

time stamp and [information about] the device that was used to take that picture.” ROA, 

Vol. 2 at 100. He testified that this is “extra data that is buried in and hidden inside the 

computer file.” Id.
4

At the close of the prosecution’s evidence, Mr. Hernandez Rodriguez moved for a 

judgment of acquittal on both counts. 2 The district court denied the motion. The judge 

instructed the jury on the elements of the offenses, using the language of the statutes to 

instruct on the interstate commerce elements. ROA, Vol. 1 at 67-68. The jury convicted 

Mr. Hernandez Rodriguez on both counts. The district court sentenced him to 600 

months in prison. Mr. Hernandez Rodriguez timely appealed.

II. DISCUSSION

To obtain the convictions, the prosecution had to prove the interstate commerce

elements of §§ 2251(a) and 2252(a)(4)(B). On appeal, Mr. Hernandez Rodriguez

challenges only the sufficiency of the evidence on those elements. 

In its brief, the Government states that its trial argument on the interstate 

commerce elements “relied solely on the origin of the production materials to meet the 

nexus requirement.” Aplee. Br. at 10 n.1.3

 The prosecution thus needed to 

“demonstrate . . . that the visual depictions [at issue] were produced using materials that 

2 The Government does not dispute that this motion preserved the sufficiency of 

the evidence challenge for appeal.

3 Despite the Government’s argument on appeal, the prosecution’s jurisdictional 

theory at trial was not limited to this argument. The prosecution also argued that Mr. 

Hernandez Rodriguez “had reason to know that the visual depiction would be transported 

or shipped in interstate or foreign commerce.” ROA, Vol. 2 at 120. But because the 

Government asserts on appeal that it “relied solely” on the “production materials” 

evidence, Aplee. Br. at 10 n.1, we confine our analysis to that theory. 
5

traveled in interstate or foreign commerce.” United States v. Wilson, 182 F.3d 737, 741 

(10th Cir. 1999). 

Mr. Hernandez Rodriguez does not contest that his hard drive and memory card 

traveled in interstate or foreign commerce. He argues only that he did not “produce” the 

images when he copied and downloaded them to those devices and the prosecution

therefore failed to prove the interstate or foreign commerce elements. We disagree and 

affirm. 

A. Standard of Review

“To review sufficiency of the evidence, we engage in de novo review, considering 

the evidence in the light most favorable to the government to determine whether any 

rational jury could have found guilt beyond a reasonable doubt.” United States v. Pickel, 

863 F.3d 1240, 1251 (10th Cir. 2017) (quotations omitted). We review questions of 

statutory interpretation de novo. United States v. Mobley, 971 F.3d 1187, 1195 (10th Cir. 

2020).

B. Additional Legal Background

An “image of child pornography” is “produced” when it is “copied or downloaded 

to [the defendant’s] hard drive in one capacity or another.” United States v. Schene, 543 

F.3d 627, 639 (10th Cir. 2008) (quotations omitted). Every circuit to consider the issue

has agreed that “producing” child pornography encompasses both copying and 

downloading. Most recently, the Sixth Circuit held that “an individual ‘produce[s]’ child 

pornography when he copies ‘visual depictions’ of child pornography onto a hard drive 
6

that has a nexus to interstate or foreign commerce.” United States v. Lively, 852 F.3d 

549, 559 (6th Cir. 2017).

4

Mr. Hernandez Rodriguez relies on three of our precedents in arguing that we 

should diverge from this consensus. 

United States v. Wilson, 182 F.3d 737 (10th Cir. 1999)

In Wilson, the defendant was convicted for possessing “ten computer diskettes[] 

containing visual depictions (i.e., graphics files) of minors engaging in sexually explicit 

conduct.” 182 F.3d at 739-40. “[T]he evidence was uncontroverted that the diskettes at 

issue traveled in interstate commerce . . . .” Id. at 742. The prosecution argued at trial 

that because “the diskettes . . . were used to produce the visual depictions at issue (i.e., 

the graphics files),” id., the images “were produced using materials that had been mailed, 

shipped, or transported in interstate or foreign commerce, in violation of 18 U.S.C. 

§ 2252(a)(4)(B),” id. at 740. 

4 See also United States v. Burdulis, 753 F.3d 255, 262 (1st Cir. 2014)

(downloading an image onto a thumb drive satisfies § 2252(a)(4)(B) because, “[w]hen a 

person loads an image onto a thumb drive from the internet or another source, that person 

has created a new copy of the image in the digital memory of the thumb drive”); United 

States v. Guagliardo, 278 F.3d 868, 871 (9th Cir. 2002) (“When the file containing the 

image is copied onto a disk, the original is left intact and a new copy of the image is 

created, so the process ‘produces’ an image.”); United States v. Anderson, 280 F.3d 1121, 

1125 (7th Cir. 2002) (“Computerized images are produced when computer equipment is 

used to copy or download the images.”); United States v. Dickson, 632 F.3d 186, 189-90 

(5th Cir. 2011) (same); United States v. Maxwell, 386 F.3d 1042, 1052 (11th Cir. 2004)

(same), judgment vacated on other grounds, 546 U.S. 801 (2005).
7

We rejected this theory, not because the statutory language foreclosed it, but 

because the evidence was insufficient to support it. We concluded that “testimony [by 

the prosecution’s witnesses] left unanswered the question of whether a computer graphics 

file is produced or created prior to being recorded on a particular storage media, or 

whether, instead, it only comes into being at or after the point it is recorded on the storage 

media.” Id. at 743. “Although we [had] no doubt this question [had] an answer,” we 

“conclude[d] the evidence produced by the government in this case was insufficient to 

allow a reasonable juror to answer the question.” Id.

United States v. Schene, 543 F.3d 627 (10th Cir. 2008)

In Schene, we considered the “question that we held was unanswered by the 

evidence presented in Wilson.” 543 F.3d at 638. “[T]he government’s theory [at trial] 

was that [the defendant’s] hard drive—which was ‘mailed, or shipped or transported in 

interstate or foreign commerce’—had ‘produced’ the images of child pornography when 

it caused them to appear visually on [his] computer monitor.” Id. at 636. The jury 

convicted the defendant, and he appealed the sufficiency of the evidence. Reviewing for 

plain error,5 we found that the court erred in allowing the jury to convict based on “[t]he 

government’s attempt to prove production of the images by their display on a computer 

monitor.” Id.

5 We find plain error only where there is “(1) error, (2) that was plain, (3) affecting 

substantial rights, and (4) going to the fairness, integrity or public reputation of the 

judicial proceedings.” United States v. Oldman, 979 F.3d 1234, 1249 (10th Cir. 2020) 

(quotations and citation omitted).
8

But we held that the error did not affect the defendant’s substantial rights or 

undermine the integrity of the proceeding because “[i]t [was] obvious that the 

government’s evidence was sufficient, under [three] more recent Seventh and Ninth 

Circuit decisions, to show that each ‘image of child pornography’ had been copied or 

downloaded to [his] hard drive in one capacity or another, and was therefore ‘produced 

using materials that have been mailed, or shipped or transported in interstate or foreign 

commerce.’” Id. at 639 (quoting 18 U.S.C. § 2252A(a)(5)(B)). We relied on cases in 

which “both the Seventh and Ninth Circuits . . . held, as a matter of law, that 

computerized images are ‘produced’ for purposes of § 2252A(a)(5)(B) when computer 

equipment, including both hard drives and computer diskettes, are used to copy or 

download the images.” Id. at 638.

6

United States v. Sturm, 672 F.3d 891 (10th Cir. 2012) (en banc)

In Sturm, we held in an en banc decision that a defendant may be convicted under 

§§ 2251 and 2252 for possessing copies of illicit images if the originals traveled in 

interstate commerce, even if the copies did not. The defendants in Sturm challenged their 

convictions on the ground that “each copy of an image depicting minors engaged in 

sexually explicit conduct is a separate and distinct visual depiction and the Government 

[needed to show] that the specific digital files [the defendants were] convicted of 

possessing and distributing traveled in interstate or foreign commerce.” 672 F.3d at 897. 

6 18 U.S.C. § 2252A(a)(5)(B) uses similar language on interstate or foreign 

commerce to §§ 2251(a) and 2252(a)(4)(B).
9

“The Government counter[ed] that it [could] meet its burden by proving that the 

substance of such digital files—the particular portrayal of a minor engaging in sexually 

explicit conduct—traveled in interstate or foreign commerce in some form at some point 

in time.” Id.

We agreed with the government, “conclud[ing] [that] the term visual depiction 

means the substantive content of an image depicting a minor engaging in sexually 

explicit conduct rather than the specific medium or transmission used to view, store, 

receive, or distribute that content.” Id. at 901. We observed that “[a] visual depiction is 

created once—when the child sexual abuse is captured on some type of media; it is not 

created anew each time that substantive content is transferred to a different storage device 

or transmitted over the Internet.” Id.

C. Analysis

Sufficiency

The evidence was sufficient to convict Mr. Hernandez Rodriguez because the 

illicit images were “produced . . . using materials” that were transported “in or affecting 

interstate or foreign commerce.” See 18 U.S.C. §§ 2251(a), 2252(a)(4)(B). As we 

observed in Schene, an “image of child pornography” is “produced” when it is “copied or 

downloaded to [the defendant’s] hard drive in one capacity or another.” 543 F.3d at 639

(quotations omitted). 

Mr. Hernandez Rodriguez downloaded the images to his hard drive and memory 

card. Under Schene, and in accordance with every other circuit to address the question, 
10

he used the hard drive and memory card to “produce” visual depictions of a minor 

engaging in sexually explicit activity when he downloaded the images.

Because Mr. Hernandez Rodriguez “produced” the images using the hard drive 

and memory card, the evidence was sufficient to convict. The prosecution introduced 

evidence that Mr. Hernandez Rodriguez’s hard drive was manufactured in Malaysia and 

his memory card was manufactured in China. Those items traveled in interstate or 

foreign commerce to reach Mr. Hernandez Rodriguez in Oklahoma. A rational jury 

could therefore have concluded that the illicit images were “produced or transmitted 

using materials” that were transported “in or affecting interstate or foreign commerce.” 

See 18 U.S.C. §§ 2251(a), 2252(a)(4)(B).

Mr. Hernandez Rodriguez’s Arguments

Mr. Hernandez Rodriguez raises three counterpoints. We reject each.

First, Mr. Hernandez Rodriguez argues this court overruled Schene in Sturm and 

thus it is not the law that downloading an image to a storage device “produces” a visual 

depiction. He relies on Sturm’s statement that “[a] visual depiction is created once—

when the child sexual abuse is captured on some type of media; it is not created anew 

each time that substantive content is transferred to a different storage device or 

transmitted over the Internet.” Aplt. Br. at 14 (quoting Sturm, 672 F.3d at 901). He 

points to our conclusion that “[a]ny prior decisions of this court inconsistent with this 

holding are hereby overruled.” Id. at 18 (quoting Sturm, 672 F.3d at 901).
11

But Mr. Hernandez Rodriguez misreads Sturm. Sturm addressed when a visual 

depiction is “created,” not what materials are involved in “producing” an image for 

purposes of §§ 2251(a) and 2252(a)(4)(B). Although Sturm said an image is “created”

when it is first captured, and not “created anew” when it is copied, Schene held that 

“producing” an image includes downloading and duplicating it. Nothing in Sturm’s 

discussion of “creation” undermined Schene’s discussion of “production.”

This distinction between “creating” as used in Sturm and “producing” finds 

support in the statutory definition of “producing,” which includes “producing, directing, 

manufacturing, issuing, publishing, or advertising.” See 18 U.S.C. § 2256(3). As the 

First Circuit recognized, both “manufacturing” and “publishing” “encompass the creation 

of new copies from an original.” Burdulis, 753 F.3d at 261-62. For example, “a 

publishing house is involved in the publication of a book when it prints copies of the 

book for sale, regardless of whether it participated in writing and editing the book or even 

in creating the first bound copy.” Id. at 262. Similarly, a visual depiction that is 

“created” when captured by a camera is “produced” when it is duplicated and stored on a 

new device. We thus decline to read Sturm as implicitly overruling Schene and tacitly 

splitting from every other circuit to address the question before us. Sturm therefore does 

not undermine the sufficiency of the evidence in this case.

Second, Mr. Hernandez Rodriguez relies on Wilson, where we found the 

defendant’s possession of diskettes containing illicit images insufficient to meet the 

interstate or foreign commerce element of § 2252(a)(4)(B), to argue his mere possession 
12

is likewise insufficient to meet the elements here. See 182 F.3d at 743. But we decided 

Wilson based on insufficiency of the evidence and did not say that downloading an image 

to a hard drive could not constitute production as a matter of law.

In Schene, we agreed with those circuits finding “as a matter of law, that 

computerized images are ‘produced’ for purposes of § 2252A(a)(5)(B) when computer 

equipment, including both hard drives and computer diskettes, are used to copy or 

download the images.” Id.

7 Unlike in Wilson, the prosecution here introduced testimony

that an image is produced when it is copied to a hard drive or memory card. ROA, Vol. 2 

at 100.8

Third, Mr. Hernandez Rodriguez notes that “Schene was addressed on plain-error 

review, and that standard of review was central to this Court’s decision.” Aplt. Br. at 16. 

He argues that “if de novo review had applied, the Court would have reversed under the 

7 Referencing Wilson and Schene, the Sixth Circuit noted in 2017 that “[e]ven the 

Tenth Circuit, which in the past has held that ‘producing’ does not include copying 

images onto a digital storage device, has retreated from that position in light of this 

widespread consensus.” Lively, 852 F.3d at 560.

8 Special Agent Reynolds testified a new image is “created” when it is copied to a 

hard drive. ROA, Vol. 2 at 100. Mr. Hernandez Rodriguez reads this to suggest that the 

government’s evidence is insufficient in light of Sturm’s holding that “[a] visual 

depiction is created once—when the child sexual abuse is captured on some type of 

media; it is not created anew each time that substantive content is transferred to a 

different storage device or transmitted over the Internet.” 672 F.3d at 901. But the 

witness’s use of “created” does not control, and the context indicates that Special Agent 

Reynolds was using “created” to refer to the statutory term “produced.” This apparent 

conflict between his chosen term and Sturm’s discussion of “creation” is semantic, not 

substantive.
13

controlling precedent of Wilson.” Id. at 17 n.2. He relies on Schene’s language that 

“[t]he government’s argument in the instant case mirrors the government’s ‘alternate 

theory’ that we rejected in Wilson.” Id. (quoting Schene, 543 F.3d at 637).

Although Schene turned on the third and fourth prongs of the plain error analysis, 

Mr. Hernandez Rodriguez is incorrect that we should therefore reverse his convictions. 

We decided Schene on the final two prongs of plain error because the government did not 

argue at trial that downloading or copying constitutes “production.” 543 F.3d at 636. 

Although we found the district court erred by allowing the jury to convict on the theory 

presented by the government, we held the error did not affect the defendant’s substantial 

rights or the integrity of the proceeding because “[i]t [was] obvious that the government’s 

evidence was sufficient . . . to show that each ‘image of child pornography’ had been 

copied or downloaded to [the defendant’s] hard drive in one capacity or another, and was 

therefore ‘produced using materials that have been mailed, or shipped or transported in 

interstate or foreign commerce.’” Id. at 639.

In resolving the appeal on that basis, we necessarily determined that copying and 

downloading an image is “production” under the statute, and that the government 

“obvious[ly]” would have prevailed under the “downloading and copying” theory. Id.;

see also United States v. Swenson, 335 F. App’x 751, 754 (10th Cir. 2009) (unpublished) 
14

(citing Schene for the proposition that “computerized images are ‘produced’ by a hard 

drive when the hard drive is used to copy or download the images.”).9

III. CONCLUSION

Because the evidence was sufficient, we affirm both convictions.

Entered for the Court

Scott M. Matheson, Jr.

Circuit Judge

9 Cited for persuasive value under Fed. R. App. P. 32.1; 10th Cir. R. 32.1

(“Unpublished decisions are not precedential, but may be cited for their persuasive 

value.”).