Reported / Citable
Background
Todd Mumma lived in Fresno, California, with his then-wife and two stepdaughters. A private investigator turned over a memory card showing his older stepdaughter, M.V., being secretly recorded as she undressed in her bedroom. Agents searched the home in May 2020 and found a hidden camera built into a phone charger in her room. Forensic review showed videos recorded between 2017 and 2019. Mumma had labeled the clips "good" or "great," and he saved dozens of screenshots focused on M.V.'s private areas in a phone application disguised as a calculator.
A grand jury charged Mumma with sexual exploitation of a minor under 18 U.S.C. § 2251(a), with a forfeiture allegation under § 2253. The Government dismissed a second count before trial. The district court denied his motion to dismiss the indictment for inadequate notice, and a jury convicted him. The court never asked whether either party wanted the jury to decide the forfeitability of Mumma's house, which he had sold in 2022, and neither side requested it.
The court sentenced Mumma to 252 months in prison, entered a $160,000 personal forfeiture money judgment equal to the house-sale proceeds, and ordered $71,200 in restitution. It declined to order forfeiture tied to his business. Mumma appealed the indictment ruling, the forfeiture, and the restitution calculation.
The Court’s Holding
The Ninth Circuit reviewed the indictment de novo and affirmed the denial of the motion to dismiss. The indictment tracked the statute and included the interstate commerce allegation. It pleaded only the alternatives that fit the case: that Mumma employed and used a minor, and that the depiction was produced using materials that had moved in interstate commerce. It also stated the county and an approximately 35-month period. The victim need not be named so long as the elements are set out, and the indictment did not have to describe how Mumma employed or used the minor. The court distinguished a district court decision demanding more detail and disagreed with any suggestion that the word "use" is too vague in a § 2251(a) charge.
On forfeiture, the panel did not decide whether Mumma had a rule-based right to a jury determination of forfeitability of the house, or whether the district court erred by not inquiring. Assuming both, it held any error harmless. It treated the omitted nexus finding like the missing element in Neder v. United States. Because nexus need only be shown by a preponderance and the error was nonconstitutional, the question was whether it was more probable than not that a rational jury would have found the house was used to commit the offense. Mumma's written opposition and his counsel at sentencing effectively conceded that the house was used, his opening brief offered no contrary argument, and the only factual basis for guilt was hidden cameras in the bedroom in his home. His constitutional jury argument, raised only to preserve it, is foreclosed by Libretti v. United States.
On restitution, the Government conceded that the district court's total exceeded the sum of the victim's components by $2,500. The panel held the issue was not moot even though Mumma had paid and the funds were disbursed, because a ruling of overpayment could give him an offset against any damages the victim recovers in her pending civil suit. It vacated the restitution order and remanded to eliminate the excess. It also directed the district court to clarify whether the housing expenses included a down payment made by the victim's mother, since § 2259(c)(2)(C) covers temporary housing. The Government pointed to no record evidence, and the district court made no finding. The judgment and sentence were otherwise affirmed, including the forfeiture order.
Key Takeaways
- An indictment that tracks § 2251(a), alleges the jurisdictional element, and pleads only the alternatives that fit the case gives adequate notice without naming the victim or detailing how the minor was used.
- A failure to ask whether a party wants the jury to decide forfeitability of specific property under Rule 32.2(b)(5)(A) is reviewed for harmless error.
- Such an error is harmless where the nexus between the property and the offense is uncontested and the trial evidence makes it incontestable, even assuming the defendant would have chosen a jury.
- A restitution challenge is not moot after full payment if a ruling could give the defendant an offset in the victim's pending civil case.
- The remand is limited to correcting the $2,500 error and resolving the temporary housing question; it does not reopen the conviction or the forfeiture.
Why It Matters
As a published opinion, this decision is precedential in the Ninth Circuit. It confirms that Rule 32.2(b)(5)(A) inquiry failures are reviewed for harmlessness under a Neder-based, more-probable-than-not test, so defendants who concede nexus will rarely obtain relief. It also shows that restitution errors can be reviewed after payment.
Open questions remain. The court did not decide whether a jury right exists when the Government seeks a money judgment based on sold property, and the housing-expense question returns to the district court.