Thursday, October 29, 2009

U.S. v. Kilbride, No. 07-10528 (10-28-09). Is the standard for obscenity the local community standard? Not when there is a federal statute involved, in which case the standard has to be a national one. In this case, the defendant was convicted of spam charges, obscenity charges, and money laundering. The interesting issues arise over the definition of community standards when it comes to obscenity in the context of a federal, hence national, standards. Under the Supremes precedent in Miller, Hamling, and Ashcroft, the focus need not be a specific geographical community, but can refer to a national community standard to judge Internet or e-mail obscenity. The defendant's conviction for spam was also affirmed, with the 9th finding that the statute was not unconstitutionally vague. The 9th panel was B. Fletcher, joined by Hug and Hawkins.

U.S. v. Moriel-Luna, No. 08-50124 (10-29-09). This is a 1326 case, where the defendant argues that failure to inform him of the possibility of discretionary relief under 212(c) was prejudicial. The 9th (Gould joined byTallman and Panner) had previously reversed the district court, holding that the Immigration Judge should have informed the defendant of possible relief. It was sent back to see if relief was even possible. The district court concluded it was not, and the 9th affirmed. Agreeing with the district court, the 9th found that the defendant could not have gotten a visa immediately at the time (1995), but would have had to apply earlier (1990). Moreover, the fact that the defendant could have married his then-US citizen girlfriend, or have his parents become citizens, was not enough certainty to afford him relief here.


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