                                                                            FILED
                            NOT FOR PUBLICATION                              JUN 19 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-10489

              Plaintiff - Appellee,              D.C. No. 1:08-cr-00273-OWW-1

  v.
                                                 MEMORANDUM *
RALPH ANTHONY MALDONADO,

              Defendant - Appellant.



                   Appeal from the United States District Court
                       for the Eastern District of California
                Oliver W. Wanger, Senior District Judge, Presiding

                             Submitted June 15, 2012 **
                              San Francisco, California

Before: D.W. NELSON, GOULD, and BEA, Circuit Judges.

       Defendant-Appellant Ralph Anthony Maldonado was convicted following a

jury trial of transferring obscene materials to minors in violation of 18 U.S.C.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§ 1470.1 Maldonado appeals his conviction, contending that a jury instruction to

which he did not specifically object constituted plain error. We affirm.

      The district court instructed the jury that the “local community” it should

consider in deciding whether the material violated a community standard for

obscenity was “the region from which you have been drawn, encompassing the

counties in which you reside in the Eastern District of California.” Maldonado

contends that, because the material was transmitted over the Internet, the jury

should have been instructed to judge whether the material was obscene relative to

the standards of the national community or the receiving local community, but not

the sending local community.

      With respect to the national community standard, in United States v.

Kilbride, 584 F.3d 1240, 1255 (9th Cir. 2009), we held that the law on this precise

question was “highly unsettled” prior to the decision in that very case. Kilbride

was issued on October 28, 2009. In our case, the jury returned its verdict two

months earlier: August 28, 2009. Thus, even if the district court committed error

on this point, it could not have been plain, because “[w]hen the state of the law is


      1
         That provision states: “Whoever, using the mail or any facility or means of
interstate or foreign commerce, knowingly transfers obscene matter to another
individual who has not attained the age of 16 years, knowing that such other
individual has not attained the age of 16 years, or attempts to do so, shall be fined
under this title, imprisoned not more than 10 years, or both.”

                                           2
unclear at the time of trial and is then clarified by subsequent authority, the district

court’s error is . . . not considered plain.” United States v. Gonzalez-Aparicio, 663

F.3d 419, 428 (9th Cir. 2011) (emphasis added).

         Next, contrary to Maldonado’s suggestion, ACLU v. Ashcroft, 535 U.S. 564,

583 (2002), does not hold that only the receiving community’s standards may be

used to judge obscenity. Rather, “[a] juror is entitled to draw on his own

knowledge of the views of the average person in the community or vicinage from

which he comes for making the required determination.” Hamling v. United

States, 418 U.S. 87, 104 (1974). As Maldonado has not challenged the district

court’s jurisdiction or venue, we see no basis for concluding the court plainly

erred.

         Finally, in any event, substantial evidence showed that the material that

Maldonado sent, thinking it was going to a young girl, was obscene under the

Miller test as judged by the standards of any community. See generally Miller v.

California, 413 U.S. 15 (1973). Any error thus would have been harmless.

         AFFIRMED.




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