In United States v. Walker, --- F.4th ---, Nos. 21-10364, 21-10365 (9th Cir. 2024), the Court affirmed Tommy Walker’s conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and the revocation of his supervised release in a prior case.
The Court's introduction does a good job of summarizing the relevant points. Here it is:
On February 20, 2020, Tommy Walker was indicted for possessing a Jimenez Arms .380 semiautomatic handgun in violation of 18 U.S.C. § 922(g), the felon in possession of a firearm statute. He was not tried until August 30, 2021— 557 days after his indictment—largely because of the COVID-19 pandemic. Over Walker’s objection, the district court excluded much of this time from Walker’s Speedy Trial Act calculation using the “ends of justice” provision of the Act, 18 U.S.C. § 3161(h)(7)(A), and, as a result, denied Walker’s Sixth Amendment and Speedy Trial Act motions to dismiss his indictment.At trial, the district court rejected Walker’s request for a jury instruction requiring the jury to find that he knew that the handgun he possessed had traveled in interstate commerce. Jurors were instead instructed that they needed to find beyond a reasonable doubt that: (1) Walker knowingly possessed the Jimenez Arms handgun; (2) this particular Jimenez Arms handgun had previously traveled in interstate or foreign commerce; (3) Walker had at least one prior conviction for an offense punishable by more than one year in prison; and (4) Walker knew that he had at least one such felony conviction.Walker timely appeals both the speedy-trial and jury instruction issues. The district court properly excluded time under the ends of justice provision of the Speedy Trial Act, which gives effect to the Sixth Amendment right to a speedy and public trial. In United States v. Olsen, 21 F.4th 1036, 1046 (9th Cir. 2022), we outlined non-exhaustive factors that are relevant in deciding whether continuances caused by the COVID-19 pandemic should be granted under the Speedy Trial Act’s ends of justice provision. The Olsen factors support the district court’s exclusion of time. Walker’s Sixth Amendment claim also fails.The district court also properly denied Walker’s requested jury instruction. In United States v. Stone, we held that the interstate commerce element of 18 U.S.C. § 922(g) was “purely jurisdictional” and does not contain a mens rea requirement. 706 F.3d 1145, 1146–47 (9th Cir. 2013). The Supreme Court’s decision in Rehaif v. United States, 139 S. Ct. 2191 (2019), does not overrule Stone, and Stone is not “clearly irreconcilable” with Rehaif. See Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc). Accordingly, we affirm Walker’s conviction.
Next, in United States v. Boam, --- F.4th ---, No. 21-30272 (9th Cir. 2023), the Court affirmed Tel James Boam’s convictions for attempted sexual exploitation of a minor under 18 U.S.C. § 2251(a) and possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B).
The convictions arose from Boam secretly recording his stepdaughter in the shower.
"The first issue on appeal centers on whether there was sufficient evidence to support Boam’s convictions for attempting to 'use' T.A. in a way that violates § 2251(a). Viewed in the light most favorable to the government, the evidence presented at trial showed that Boam put a secret camera in his bathroom with the intent of filming T.A. when she was naked and showering, and that Boam instructed T.A. to shower in the bathroom with the camera. Under our caselaw, this evidence is sufficient to support a finding that Boam attempted to 'use' T.A. in violation of § 2251(a)."
"Boam next argues that there was insufficient evidence from which a reasonable jury could conclude that the videos meet the statutory requirement of 'sexually explicit conduct.' Under both statutes of conviction, 'sexually explicit conduct' is defined, in relevant part, as a “lascivious exhibition” of a person’s “genitals” or “pubic area.” 18 U.S.C. § 2256(2)(A)(v). Boam mainly contends that the videos are not lascivious exhibitions of T.A.’s genitals or pubic area because the videos are 'strictly hygienic' and 'not sexual in nature.' We disagree. Based on our review of the videos, we conclude that the district court did not clearly err in finding that the videos reasonably fell within the definition of sexually explicit conduct. See Wiegand, 812 F.2d at 1244. We therefore affirm the district court’s decision that sufficient evidence existed for a rational jury to find beyond a reasonable doubt."
