Judge Fernandez is forgiven for an opinion that reads like a Scrabble tournament, when he uses his SAT vocabulary to bring a little reality back to child porn sentencing. See United States v. Kuchinski, __ F.3d __, No. 05-03607, Slip op. at 18789 (9th Cir. Nov. 27, 2006), opinion available here. Although the case has a disappointing and unpersuasive endorsement of the despised "conditional plea" procedure in Rule 11, it does recognize that images in the internet cache are not readily available to most users.
Players: Fernandez neatly parries the government’s allonge. Slip op. at 18797.
Facts: Kuchinski pleaded guilty to possession of child porn. He attempted to enter a conditional plea to an additional count of receipt of child porn, but the government refused to permit it. Id. at 18795. Between fifteen to nineteen thousand images of child porn were on his computer. Under 1,500 files were downloaded on his computer, in the recycle bin, or were active temporary internet files. Id. at 18794. Between thirteen to seventeen thousand images were “Deleted Temporary Internet Files,” aka, in the “cache.” Id. at 18794. Over defense objection, the district court calculated attributed a number of images that produced a seventy month sentence. Id. at 18796.
Issue(s): Of many issues, these two are of greatest interest:
1. Conditional pleas: “Kuchinski complain[s] that Federal Rule of Criminal Procedure 11(a)(2) was an unconstitutional violation of the separation of powers doctrine because permitting a conditional plea was an issue that should be left to the courts alone.” Id. at 18797-98.
2. Counting child porn images: “Did Kuchinski knowingly receive and possess the images in [the internet cache], or, rather, does the evidence support a determination that he did?” Id. at 18804.
1. Conditional pleas: “[Kuchinski] is wrong.” Id. at 18798. “We perceive no danger that a ‘commingling of functions,’ if commingling it be, will result in an encroachment on one branch or an improper aggrandizement of another branch.” Id. at 18799.
2. Counting child porn: “There is no question that the child pornography images were found on the computer’s hard drive and that Kuchinski possessed the computer itself. Also, there is no doubt that he had accessed the web page that had those images somewhere upon it, whether he actually saw the images or not. What is in question is whether it makes a difference that, as far as this record shows, Kuchinski had no knowledge of the images that were simply in the cache files. It does.” Id. at 18805. “Where a defendant lacks knowledge about the cache files, and concomitantly lacks access to and control over those files, it is not proper to charge him with possession and control of the child pornography images located in those files, without some other indication of dominion and control over the images. To do so turns abysmal ignorance into knowledge and a less than valetudinarian grasp into dominion and control.” Id. at 18806.
Of Note: In Kuchinski, the Ninth thankfully limits its sloppy Romm decision from earlier this year. See Romm blog here. In Romm, Judge Bea upheld a conviction when child porn was discovered in the internet cache – despite a compelling counter-argument from Kleinfeld in Gourde. See United States v. Romm, 455 F.3d 990, 1001 (9th Cir. 2006). In Kuchinski, Judge Fernandez requires evidence that the user actually accessed and used files in the internet cache – not likely for the average child porn consumer.
Forensically speaking, Kuchinski will be a much more common scenario than Romm – users sophisticated enough to be rummaging through the internet cache will probably have other, more clever ways to store images.
How to Use: Give Kuchinski to your forensic expert, and ask him or her to determine if internet cache images have been accessed and/or stored outside of normal browser usage. If not, cut those images out of the guideline calcs.
For Further Reading: Here’s a glossary for this Fernandez decision:
Gallied: “Hurried, vexed, over-fatigued, perhaps like a galley slave.” See definition here; (Slip Op. at 18799).
Allonge: “In fencing, an allonge is a thrust or pass at the enemy.” See definition here; (Slip. op. at 18797).
Valetudinarian: 1. A weak or sickly person, especially one morbidly concerned with his or her health. adjective: 1. Sickly; weak; infirm. 2. Morbidly concerned with one's health. See definition here; (Slip. op. at 18806)
Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org