735 Fed.Appx. 349 (9th Cir. 2018), 16-50174, United States v. Dickerson

Docket Nº:16-50174
Citation:735 Fed.Appx. 349
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Antonio DICKERSON, AKA Girbaud, Defendant-Appellant.
Attorney:L. Ashley Aull, Assistant U.S. Attorney, DOJ— Office of the U.S. Attorney, Los Angeles, CA, Michael Anthony Brown, Assistant U.S. Attorney, Jeffer Mangels Butler & Mitchell LLP, Los Angeles, CA, for Plaintiff-Appellee Ethan Atticus Balogh, Coleman & Balogh LLP, San Francisco, CA, for Defendant-Ap...
Judge Panel:Before: HAWKINS, M. SMITH, and CHRISTEN, Circuit Judges.
Case Date:August 21, 2018
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 349

735 Fed.Appx. 349 (9th Cir. 2018)

UNITED STATES of America, Plaintiff-Appellee,

v.

Antonio DICKERSON, AKA Girbaud, Defendant-Appellant.

No. 16-50174

United States Court of Appeals, Ninth Circuit

August 21, 2018

Argued and Submitted August 6, 2018 Pasadena, California

Editorial Note:

Governing the citation to unpublished opinions please refer to federal rules of appellate procedure rule 32.1. See also U.S.Ct. of App. 9th Cir. Rule 36-3.

L. Ashley Aull, Assistant U.S. Attorney, DOJ— Office of the U.S. Attorney, Los Angeles, CA, Michael Anthony Brown, Assistant U.S. Attorney, Jeffer Mangels Butler & Mitchell LLP, Los Angeles, CA, for Plaintiff-Appellee

Ethan Atticus Balogh, Coleman & Balogh LLP, San Francisco, CA, for Defendant-Appellant

Appeal from the United States District Court for the Central District of California, Stephen V. Wilson, District Judge, Presiding, D.C. No. 8:14-cr-00179-SVW-1

Before: HAWKINS, M. SMITH, and CHRISTEN, Circuit Judges.

MEMORANDUM[*]

Antonio Dickerson was charged with sex trafficking a minor in violation of 18 U.S.C. § 591(a)(1) and production of child pornography in violation of 18 U.S.C. § 251(a). At trial he claimed that he reasonably believed the victim was over 18, and he was acquitted of the trafficking charge, which included a mens rea element as to the victim’s age. He was convicted of the production of child pornography charge, which included no such mens rea element. He now appeals his conviction and sentence. We have jurisdiction pursuant to 28 U.S.C. § 291, and we affirm.

Dickerson first claims that the district court erred in failing to instruct the jury on a reasonable mistake of age defense to the production of child pornography charge. Dickerson did not raise this claim at trial, and the government argues it is waived. Because there is no reason to believe that Dickerson "intentionally relinquished or abandoned a known right," the claim is instead forfeited and we review for plain error. United States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en banc).

The district court did not plainly err in failing to sua sponte give a reasonable mistake of age instruction. That defense would require Dickerson to show that he "did not know, and could not reasonably have learned, that [the victim] was under 18 years of age." United States v. U.S. Dist. Court (Kantor), 858 F.2d 534, 543 (9th Cir. 1988). Dickerson testified that he barely knew the minor victim, CM, and that he believed she was between 19 and 21. In his closing argument, Dickersons counsel argued that Dickerson did not know that CM was a minor and that she seemed to be an adult based on the context and her...

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