United States of America v. Duke Nottingham

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DUKE NOTTINGHAM,
Defendant - Appellant.
No. 11-10250
D.C. No. 2:09-cr-00477-JAM-1
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Submitted July 12, 2013**
San Francisco, California
Before: PAEZ, BERZON, and TALLMAN, Circuit Judges.
Duke Nottingham was convicted after a jury trial of possession of child
pornography, in violation of 18 U.S.C. § 2252(a)(4)(B), and distribution of child
pornography, in violation of 18 U.S.C. § 2252(a)(2). Nottingham appeals his
FILED
JUL 19 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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conviction, sentence, and restitution award, arguing: (1) the prosecutor improperly
posed guilt-assuming hypothetical questions to defense character witnesses; (2) the
108-month sentence imposed by the district court was substantively unreasonable;
and (3) restitution was erroneously awarded. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm Nottingham’s conviction and sentence. We vacate the
restitution order and remand to the district court to consider what restitution, if any,
should be imposed in accordance with the standards articulated in United States v.
Kennedy, 643 F.3d 1251 (9th Cir. 2011).
Nottingham contends that the prosecutor’s use of guilt-assuming
hypothetical questions during the cross-examination of defense character witnesses
constitutes reversible error. However, the majority of the questions posed by the
prosecutor were neither hypothetical nor rested upon an impermissible assumption
of guilt. Instead, the prosecutor questioned the defense witnesses regarding
misconduct admitted by Nottingham in opening statements and in a stipulation
submitted to the jury. Questions based on admitted facts do not impinge on the
presumption of innocence, and the government may properly cross-examine
defense character witnesses regarding “acts that the defense counsel stated in his
opening statement had occurred.” United States v. Velasquez, 980 F.2d 1275, 1277
(9th Cir. 1992).
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While the majority of the questions posed by the prosecution were
permissible, the cross-examination of Kimberly Nottingham was improperly
premised on a presumption of guilt as to the contested distribution charge. United
States v. Shwayder, 312 F.3d 1109, 1121 (9th Cir. 2002) (the use of guilt-assuming
hypotheticals “undermines the presumption of innocence and thus violates a
defendant’s right to due process.”). Although the prosecutor’s questions were
improper, defense counsel failed to object to the improper questioning. We
conclude that reversal is not warranted under the plain error standard. See United
States v. Cannel, 517 F.3d 1172, 1176 (9th Cir. 2008). Three improper questions
were asked during a three-day trial where substantial evidence of guilt was offered,
the witness rejected the premise of these questions, and the witness provided
favorable answers in response to the improper questioning. As a result, the error
did not seriously affect the fairness, integrity, or public reputation of the judicial
proceedings. Shwayder, 312 F.3d at 1121–22.
Nottingham’s second argument, that the sentence imposed by the district
court was substantively unreasonable, also fails. We review the substantive
reasonableness of a sentence for abuse of discretion. United States v. Carty, 520
F.3d 984, 993 (9th Cir. 2008) (en banc). The district court considered each of the §
3553(a) factors before imposing sentence, as evidenced by the sentencing
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transcript which contains sixteen pages devoted to the court’s analysis. In light of
the totality of the circumstances, and according deference to the district court’s
individualized determination, we conclude that the sentence imposed by the district
court was substantively reasonable and not an abuse of discretion.
Lastly, Nottingham argues that the district court’s restitution order was
unlawful under 18 U.S.C. § 2259 because the government failed to present
sufficient evidence that Nottingham proximately caused harm to the victims, and
failed to offer a defensible method for calculating the victims’ losses. To support a
restitution award the government bears the burden of proving, “by a preponderance
of the evidence, the measure of the losses to [the depicted children] that were
proximately caused by [the defendant’s] offense.” Kennedy, 643 F.3d at 1259. We
need not decide whether the government satisfied its burden of proving that
Nottingham’s conduct proximately caused harm to the portrayed victims because
the district court erred in calculating the restitution owed.
Restitution is only appropriate if the victims’ losses “can be calculated with
‘some reasonable certainty.’” Id. at 1263. The prosecution did not provide
evidence of the specific losses endured by each victim resulting from Nottingham’s
offenses, but instead suggested that a restitution award of $7,500 per victim should
be imposed anytime a defendant contests a distribution charge at trial. Such pro
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forma calculations do not satisfy the requirement, set forth in Kennedy, that district
judges not “‘engage in . . . arbitrary calculations’ to determine the amount of the
victim’s losses.” Id. at 1261 (alteration in original).
Accordingly, we affirm the conviction and sentence imposed but vacate the
restitution order. We remand for further proceedings before the district court the
determination of whether restitution is warranted and whether it can properly be
calculated in conformance with our circuit jurisprudence.
AFFIRMED in part, VACATED in part, and REMANDED.
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