United States v. Michael McCarron
20-10072
| 9th Cir. | Apr 18, 2022Background
- Michael McCarron appealed his convictions for attempted enticement of a minor and attempted transfer of obscene material to a minor; the Ninth Circuit opinion addresses several evidentiary, instructional, and sentencing challenges.
- Special Agent Albo testified on matters the Government now concedes were improper; McCarron did not make a timely specific "ultimate issue" objection at trial.
- McCarron withdrew a Rule 106 objection to video excerpts of his non‑custodial interview; the court reviewed the full video and the played excerpts for prejudice.
- The district court instructed the jury to apply a local community standard for obscenity rather than the Ninth Circuit’s required national community standard for Internet obscenity.
- At sentencing the court denied an acceptance‑of‑responsibility reduction under U.S.S.G. § 3E1.1(a) and applied an enhancement under U.S.S.G. § 2G3.1(b)(1)(E); McCarron also challenged the vagueness of Standard Condition 12 of supervised release.
- The Ninth Circuit affirmed the district court’s judgment in all respects.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (McCarron) | Held |
|---|---|---|---|
| Agent Albo’s testimony as an improper "ultimate issue" statement | Testimony did not materially prejudice verdict given overwhelming evidence | Albo’s testimony improperly suggested McCarron confessed elsewhere in the video and warranted reversal | No plain error; defendant failed to show prejudice and trial record does not support implication of a confession |
| Withdrawal of Rule 106 objection to edited video excerpts | Withdrawal waived appellate review; excerpts were not misleading or harmful | Editing misled jury and deprived McCarron of context | Waiver applies; review not warranted and excerpts were not misleading on review of full video |
| Jury instruction using local vs. national community standard for obscenity | Any error was harmless; national standard required but outcome unaffected | Local standard misstates law and requires reversal | Instruction misapplied Kilbride but reversal not required under plain‑error because McCarron did not show the error affected substantial rights |
| Denial of acceptance‑of‑responsibility reduction (U.S.S.G. § 3E1.1(a)) | Denial proper given McCarron contested essential elements at trial; sporadic remorse insufficient | McCarron argued he showed contrition and merited the reduction | No plain error; exercising trial rights and denying reduction is ordinary and reduction is rare when defendant contests guilt |
| Sentencing enhancement under U.S.S.G. § 2G3.1(b)(1)(E) | Evidence supports attempted persuasion/enticement of a minor | Evidence insufficient to show attempt to persuade/induce/entice a minor | Enhancement upheld (court previously rejected insufficiency argument in concurrently filed opinion) |
| Vagueness challenge to Standard Condition 12 of supervised release | Condition is not unconstitutionally vague | Condition is vague and unenforceable | Foreclosed by circuit precedent; challenge rejected |
Key Cases Cited
- United States v. Campos, 217 F.3d 707 (9th Cir. 2000) (plain‑error review where defendant failed to raise a specific objection at trial)
- United States v. Olano, 507 U.S. 725 (1993) (burden on appellant to show plain‑error prejudice)
- United States v. Manarite, 44 F.3d 1407 (9th Cir. 1995) (withdrawal of an objection at trial constitutes waiver for appeal)
- United States v. Kilbride, 584 F.3d 1240 (9th Cir. 2009) (Internet obscenity requires application of a national community standard)
- United States v. Robertson, 895 F.3d 1206 (9th Cir. 2018) (plain‑error review of unobjected‑to jury instructions)
- United States v. Gibson, 998 F.3d 415 (9th Cir. 2021) (upholding constitutionality of Standard Condition 12)