Thursday, October 27, 2011

U.S. v. Williams, No. 10-10550 (10-27-11) (Thomas with N. Smith and Oliver, D.J.).

The defendant argues on appeal that he cannot be convicted for advertising child porn if he did not produce the child porn. The 9th says "Yes you can." The defendant's argument that the language of the statute, 18 U.S.C. 2251(d)(1)(A), requires some direct connection to the production of the child porn, an argument that focuses on verb tenses (i.e. "involves") is rejected, as the 9th finds the language plain and the meaning clear that advertising does not require hands on production of the child porn.

Schultz v. Tilton, No. 09-55998 (10-27-11) (per curiam with Goodwin, Wardlaw, and Sessions, D.J.).

The petitioner argues that California's Jury Instruction (CALJIC) No. 2.50.01 (8th ed. 2002) violated due process by not requiring every element of the offense be proved beyond a reasonable doubt. This is a habeas challenge to a state sexual offense conviction, in which the state jury instruction allows the consideration of other uncharged sexual molestation acts to be considered as proof of preponderance. The 9th applies the deferential AEDPA standard, and holds that the state courts acted reasonably in holding that the instruction only goes to proof of propensity, but other instructions require the present crime be proved beyond a reasonable doubt. Moreover, the instruction delineates that the evidence is for a limited purpose.

Seeboth v. Mayberg, No. 09-15330 (10-27-11) (Bea with O'Scannlain and Graber).

The petition is dismissed as moot. The petitioner was determined to be a sexually violent predator in a civil trial. He was held for determinate two year periods. A state proposition changed confinement to an indeterminate period, and the state courts held that state petitions for extensions of time were deemed extensions for indeterminate sentences. Petitioner argues that his due process rights were violated because he was held from 2005 until 2010 without a trial. The 9th dismisses as moot because petitioner was subsequently given a trial and found to be still a sexual predator, and he was in custody for an indeterminate period.


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