FILED
NOT FOR PUBLICATION NOV 14 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10304
Plaintiff - Appellee, D.C. No. 2:10-cr-00124-PMP-RJJ-
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v.
DARRYL OWEN WALIZER, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, District Judge, Presiding
Argued and Submitted October 19, 2012
San Francisco, California
Before: HAWKINS, N.R. SMITH,** and MURGUIA, Circuit Judges.
A jury convicted Darryl Walizer of violating 18 U.S.C. § 2422(b) by using
the Internet in an attempt to coerce or entice 14 year-old “Alecia”—in reality, a
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
Judge N.R. Smith was drawn to replace Judge Betty Binns Fletcher.
Judge Smith has read the briefs, reviewed the record, and listened to a recording of
oral arguments that were held on October 19, 2012.
police detective named Tony Godwin—into engaging in an illegal sex act (“Count
1”). At sentencing, the district court found Walizer in violation of 18 U.S.C. §
2260A, which requires a court to impose a 10 year consecutive sentence on any
person who, while required to register as a sex offender, commits one of several
enumerated crimes against a minor (“Count 2”). Walizer appeals. We affirm his
conviction on Count 1, but vacate his conviction on Count 2, which we remand to
the district court for trial.
As to Count 1, Walizer argues his conviction should be vacated because: (1)
the district court prevented him from cross-examining Godwin effectively; and (2)
the jury lacked sufficient evidence to convict Walizer of attempted coercion and
enticement. First, the district court neither prejudiced Walizer nor denied the jury
information about any of Godwin’s possible biases when it prohibited Walizer
from cross-examining Godwin about Godwin’s difficulty in enlisting the aid of Las
Vegas-area law enforcement in his investigation of Walizer. See United States v.
Urena, 659 F.3d 903, 907–08 (9th Cir. 2011) (“A limitation on cross-examination
does not violate the Confrontation Clause unless it limits relevant testimony and
prejudices the defendant, and denies the jury sufficient information to appraise the
biases and motivations of the witness.”) (internal citation and quotation marks
omitted). Walizer’s anticipated line of questioning would not have elicited from
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Godwin any admissible testimony about other law enforcement agencies’
assessments of Godwin’s investigation, the issue Walizer argues the district court
unconstitutionally prevented him from exploring.
Second, given the length, scope, and explicit nature of Walizer’s
communication with Alecia, specifically his graphic descriptions of his desired
sexual contact with her, the detailed nature of his planning (e.g., down to the
choice of movie they would see on their “date”), and his trip to the airport to meet
her, a jury could have concluded, beyond a reasonable doubt, that Walizer’s
conduct “(1) advance[d] the criminal purpose charged, and (2) provide[d] some
verification of the existence of that purpose.” United States v. Goetzke, 494 F.3d
1231, 1236 (9th Cir. 2007) (per curiam) (internal citation and quotation marks
omitted).
As to Count 2, Walizer contends, the Government concedes, and we
conclude, that the district court erred by usurping the jury’s role in determining
that Walizer violated 18 U.S.C. § 2260A—irrespective of whether Section 2260A
defines a criminal offense or a sentencing enhancement. See Jones v. United
States, 526 U.S. 227, 243 n.6 (1999) (holding facts that increase the maximum
penalty for a crime must be submitted to a jury and proven beyond a reasonable
doubt); In re Winship, 397 U.S. 358, 364 (1970) (holding that conviction of a
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crime requires “proof beyond a reasonable doubt of every fact necessary to
constitute the crime”). We therefore vacate Walizer’s conviction on Count 2 and
remand to the district court for a jury trial on that Count only. As we vacate
Walizer’s conviction for violating 18 U.S.C. § 2260A, we need not decide whether
that statute is unconstitutionally vague.
AFFIRMED IN PART, VACATED AND REMANDED IN PART.
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