United States v. Johnny Etimani, United States of America v. Johnny Etimani
Opinion
Opinion
Silverman, J.
18 U.S.C. § 3509 sets forth the procedure by which an alleged child victim can testify outside of the physical presence of the defendant via two-way closed circuit television. The statute requires, among other things, that the defendant’s televised image be transmitted into the room where the child is testifying. We hold today that the television monitor must be called to the child’s attention and be readily visible from where she is seated, but that it does not have to be in her direct field of vision while she is facing forward.
In the government’s cross-appeal, we consider whether the defendant should have been sentenced to mandatory life imprisonment under the “two strikes” provision of 18 U.S.C. § 2241 (c). The defendant previously had pled no-contest in California state court to “lewd and lascivious conduct upon a child.” The district court ruled that the government failed to establish that the defendant’s California conviction involved a “sexual act” — as opposed to “sexual contact” — as defined by federal law. We agree with the district court that the prior conviction was not shown to qualify as a “first strike” for purposes of 18 U.S.C. § 2241 (c).