Tenth rejects numerous evidentiary arguments to affirm child porn conviction

U.S. v. Gutierrez, 2015 WL 5315655 (9/14/15) (N.M.) (unpub'd) - The 10th affirms a child porn conviction. The 10th is untroubled by the government's failure to disclose until the eve of trial the date-and-time-related content of the metadata associated with the porn photos. Mr. Gutierrez had to take other affirmative steps to gather the information besides asking for it, such as a motion for a bill of particulars. The 10th finds no support for Mr. Gutierrez's contention that the government was obliged to provide him with an analysis of the metadata. It was enough that he had access to the metadata at the FBI office. A district court does not have to hold an evidentiary hearing to fulfill its Daubert gatekeeping role, the 10th holds. It was not plain error to admit photos that had obviously wrong digitized dates and times. The expert agent was not merely guessing when he opined as to the dates photos were taken. He relied on various data from cell phones, cameras and Mr. Gutierrez's computer. The 10th finds the district court did not abuse its discretion when it prevented Mr. Gutierrez from introducing the teenage victim's sexual behavior after she reported Mr. Gutierrez's improper photographing to the authorities. The post-report evidence didn't support the defense theory that the teenager fabricated the allegations to get away from Mr. Gutierrez's strict control. The 10th also holds that the label "made in China" on cell phones and a camera were not inadmissible hearsay. The statement is not testimonial for Confrontation Clause purposes and manufacturers' markings are not hearsay.