Unpublished Decisions

U.S. v. Helton, 2008 WL 5206276 (12/15/08) (unpub'd) - Video of a minor constituted a lascivious exhibition of the minor's pubic area, even though the minor's pubic area was covered. A surreptitious video set up in a bathroom focusing on an 11-year-old girl's pubic area covered by opaque underpants was child pornography. The 10th reached its conclusion that the video was lascivious based on six factors, including whether the visual depiction was intended to elicit a sexual response---a matter viewed from the perspective of the defendant, who had "an extreme interest in visual depictions of female underpants," as evidenced by possession of "Panty Play" magazines and videos entitled "Real Hidden Panties 6, 7 & 8". The 10th recognized the defendant's conduct was not as egregious as others violating 18 U.S.C. § 2251(a). The 25-year mandatory minimum sentence the defendant received may be "more than condign," the 10th says, i.e., more than deserved. But it was up to the government's discretion to prosecute the case as it did.

U.S. v. Gerhart, 2008 WL 5220675 (12/16/08) (unpub'd) - Although the § 2255 movant loses here, the 10th does note a 10th holding on direct appeal that a plea was knowing and voluntary based on a review of the record did not preclude a plea involuntariness claim on collateral review based on extrinsic evidence.

U.S. v. Williams, 2008 WL 5220678 (12/16/08) (unpub'd) - The prosecutor gave a legitimate race-neutral explanation for her peremptory challenge of an African-American juror on the ground that she strikes all criminal defense lawyers.

Graham v. Addison, 2008 WL 5272814 (12/19/08) (unpub'd) - The state trial court erred when it placed a blackboard between the defendant and the children he was alleged to have molested without making a particularized finding that the defendant's presence would traumatize each child. But the 10th suggested it was not ineffective assistance to fail to object to that procedure and held, in any event, the petitioner could not prove the outcome of the trial would have been different without the blackboard.

Ross v. Parker, 2008 WL 5272796 (12/19/08) (unpub'd) - The petitioner could not show prejudice resulting from the fact that one of the appellate judges who affirmed his conviction and sentence was being investigated by the Oklahoma Attorney General at the time of the decision. Other judges on the panel also ruled against the petitioner.

U.S. v. Martinez, 2008 WL 5220669 (12/16/2008) (unpub'd) - The prisoner could not establish equitable tolling of the one-year limitation for filing his § 2255 motion, even though he was placed in controlled housing for nearly two months near the time of the deadline, in part because he did not allege he requested from the prison materials he did not have access to during his restrictive placement.