United States v. Duke Nottingham

MEMORANDUM

Duke Nottingham was convicted after a jury trial of possession of child pornography, in violation of 18 U.S.C. § 2252 (a)(4)(B), and distribution of child pornography, in violation of 18 U.S.C. § 2252 (a)(2). Nottingham appeals his conviction, sentence, and restitution award, arguing: (1) the prosecutor improperly posed guilt-assuming hypothetical questions to defense character witnesses; (2) the 108-month sentence imposed by the district court was substantively unreasonable; and (3) restitution was erroneously awarded. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm Nottingham’s conviction and sentence. We vacate the restitution order and remand to the district court to consider what restitution, if any, should be imposed in accordance with the standards articulated in United States v. Kennedy, 643 F.3d 1251 (9th Cir.2011).

Nottingham contends that the prosecutor’s use of guilt-assuming hypothetical questions during the cross-examination of defense character witnesses constitutes reversible error. However, the majority of the questions posed by the prosecutor were neither hypothetical nor rested upon an impermissible assumption of guilt. Instead, the…