Case o' The Week: Unto the Breach, Urges Clifton in Cannel

Argue with the prosecutor or P.O., lose your third acceptance point. The rule isn't, thankfully, quite that stark in this plain error case, but that'll be the lesson bad AUSAs will take from it. See United States v. Cannel, __ F.3d __, 2008 WL 553742 (9th Cir. Mar. 3, 2008), decision available here. Judge Clifton (left) doesn't buy it. He would find a breach in the plea agreement when a Spokane AUSA holds back the third acceptance point because a defense attorney had the remarkable audacity to make a legal argument at sentencing.

Players: Hard-fought appeal by R&W Attorney Tracy Staab, Fed. Defenders E. Wa. & Idaho.

Facts: Cannel was busted when he e-mailed nude images of himself to a FBI agent posing as a 12-year old boy. Id. at *1. He confessed to trading images of child porn with others in on-line chat rooms. Id. He pleaded guilty to possession of child porn in a plea agreement that promised three levels off for acceptance if he “accepted personal responsibility for the criminal conduct, and provided accurate information during the sentencing process.” Id.

The P.O. went south and the PSR hammered Cannel with eight additional levels above the agreement’s guidelines, with added enhancements for distribution of porn and for the number of images. At sentencing, Cannel contested the much higher distribution guideline range because there was “insufficient evidence to support this enhancement,” and submitted a shrink’s report reflecting Cannel’s assertion that the e-mails to the 12-year old was “merely part of a fantasy.” Id. at *2.

The government conceded a mistake in the plea calculations, stood by the plea agreement’s calculations recommendations, but refused to move for the third acceptance point in light of the defense sentencing arguments. Id.

The district court agreed with the PSR’s higher calculations, gave two of the three acceptance points, and ultimately departed three-years below the PSR’s higher guideline range. Id. at *3.

Issue(s): “On this appeal, Cannel contends for the first time that the government breached the plea agreement [because, among other reasons, it did not move for the third acceptance point].” Id. at *1.

Held: “We review for plain error and find that the government did not breach the plea agreement with Cannel.” Id.

Of Note: The Ninth’s grasp of technological issues arguably lags far behind technological reality. Judge Clifton “gets it,” and in his concurrence he correctly argues that the government breached by not moving for the third acceptance point. Id. at *5.

At sentencing, Cannel’s attorney argued that the PSR’s theory – that images were found in a shared folder in a peer-to-peer (P2P) program on Cannel’s computer – was insufficient evidence for the distribution enhancement. Id. at *5. The defendant didn’t repudiate his earlier confession, and never denied distributing images in other ways. Id. The P2P argument is an interesting high-tech issue – but as Clifton emphasizes, it is not a denial of responsibility. Id. at *6. The majority’s failure to even acknowledge this distinction produces an opinion that will chill the adversarial process at sentencing (a process that the Supremes have hailed of late – see Kimbrough/Gall).

How to Use: Cannel is a must-read for defense counsel hit with the tsunami of child-porn prosecutions, because it illustrates the difficulty in resolving these cases. It has all the ingredients of a defense nightmare: a deal that misses (or intentionally ignores?) specific-offense adjustments, a P.O. that busts the deal, and an AFPD forced to choose between fighting dubious PSR theories and risking acceptance, or staying mum and eating eight additional levels.

The answer to this dilemma? Maybe (c)(1)(C) deals, when you can get them – but those are increasingly hard to find. An open plea? Maybe, but in this case, the momentum of the plea agreement’s agreed-upon lower range may have fueled the Court’s three-year downward departure from the PSR’s calculation. Cannel’s conundrum is a good illustration to share with child porn clients, when having that hard talk about hard choices.

For Further Reading: “• A total of 2,039 suspects were prosecuted for Federal sex offenses in 2006, representing about 2.5% of the 83,148 suspects prosecuted in Federal courts.

• The main sex exploitation offense referred to U.S. attorneys shifted from sex abuse (73%) in 1994 to child pornography (69%) in 2006.

• Convicted sex offenders sentenced to prison increased from 81% in 1996 to 96% in 2006.”

Department of Justice statistics on child porn prosecutions available here.


Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at www.ndcalfpd.org

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