United States of America v. Ralph Anthony Maldonado

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RALPH ANTHONY MALDONADO,
Defendant - Appellant.
No. 09-10489
D.C. No. 1:08-cr-00273-OWW-1
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, Senior District Judge, Presiding
Submitted June 15, 2012**
San Francisco, California
Before: D.W. NELSON, GOULD, and BEA, Circuit Judges.
Defendant-Appellant Ralph Anthony Maldonado was convicted following a
jury trial of transferring obscene materials to minors in violation of 18 U.S.C.
FILED
JUN 19 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 3 --

That provision states: “Whoever, using the mail or any facility or means of1
interstate or foreign commerce, knowingly transfers obscene matter to another
individual who has not attained the age of 16 years, knowing that such other
individual has not attained the age of 16 years, or attempts to do so, shall be fined
under this title, imprisoned not more than 10 years, or both.”
2
§ 1470. Maldonado appeals his conviction, contending that a jury instruction to1
which he did not specifically object constituted plain error. We affirm.
The district court instructed the jury that the “local community” it should
consider in deciding whether the material violated a community standard for
obscenity was “the region from which you have been drawn, encompassing the
counties in which you reside in the Eastern District of California.” Maldonado
contends that, because the material was transmitted over the Internet, the jury
should have been instructed to judge whether the material was obscene relative to
the standards of the national community or the receiving local community, but not
the sending local community.
With respect to the national community standard, in United States v.
Kilbride, 584 F.3d 1240, 1255 (9th Cir. 2009), we held that the law on this precise
question was “highly unsettled” prior to the decision in that very case. Kilbride
was issued on October 28, 2009. In our case, the jury returned its verdict two
months earlier: August 28, 2009. Thus, even if the district court committed error
on this point, it could not have been plain, because “[w]hen the state of the law is

-- 2 of 3 --

3
unclear at the time of trial and is then clarified by subsequent authority, the district
court’s error is . . . not considered plain.” United States v. Gonzalez-Aparicio, 663
F.3d 419, 428 (9th Cir. 2011) (emphasis added).
Next, contrary to Maldonado’s suggestion, ACLU v. Ashcroft, 535 U.S. 564,
583 (2002), does not hold that only the receiving community’s standards may be
used to judge obscenity. Rather, “[a] juror is entitled to draw on his own
knowledge of the views of the average person in the community or vicinage from
which he comes for making the required determination.” Hamling v. United
States, 418 U.S. 87, 104 (1974). As Maldonado has not challenged the district
court’s jurisdiction or venue, we see no basis for concluding the court plainly
erred.
Finally, in any event, substantial evidence showed that the material that
Maldonado sent, thinking it was going to a young girl, was obscene under the
Miller test as judged by the standards of any community. See generally Miller v.
California, 413 U.S. 15 (1973). Any error thus would have been harmless.
AFFIRMED.

-- 3 of 3 --