United States v. Michael Peterson

FILED
NOT FOR PUBLICATION
OCT 24 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50203
Plaintiff-Appellee, D.C. No. 2:12-cr-00228-GW-1
v.
MEMORANDUM*
MICHAEL ANTHONY PETERSON,
AKA Michael Peterson,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Argued and Submitted June 8, 2017
Pasadena, California
Before: REINHARDT and KOZINSKI, Circuit Judges, and BERG,**
District Judge.
1. Advertising child pornography “to a particular subset of the public”
violates 18 U.S.C. § 2251(d). United States v. Grovo, 826 F.3d 1207, 1218 (9th
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Terrence Berg, United States District Judge for the
Eastern District of Michigan, sitting by designation.
page 2
Cir. 2016). Peterson fails to explain how his actions differed from those in Grovo.
See id. at 1211–13, 1217–19. The district court therefore didn’t err in denying
Peterson’s motion to acquit on the Section 2251(d) count.
2. To the extent Peterson challenges the jury instruction that defined
“advertisement,” there was no error because the instruction “fairly and adequately
cover[ed] the issues presented.” See United States v. Soulard, 730 F.2d 1292,
1303 (9th Cir. 1984).
3. The district court was entitled to believe Special Agent Frank Day when
he said he didn’t use the hashing tools prohibited by the warrant. See United
States v. Bynum, 362 F.3d 574, 578 (9th Cir. 2004) (“Factual findings underlying
the denial of the motion are reviewed for clear error.”).
4. Nor did the district court commit plain error by allowing the prosecution
to present redacted child pornography images to the jury. The government made a
plausible argument as to why it needed to show the images to prove its case, and
the court gave a cautionary instruction. See United States v. Ganoe, 538 F.3d
1117, 1123–24 (9th Cir. 2008) (jury could be shown a selection of child
page 3
pornography images that “were highly probative of the state of mind with which
the files were received and possessed”).
5. We grant the government’s pending unopposed motion to file its
supplemental excerpt of record under seal.
AFFIRMED.