Case o' The Week: A Sour Limewire Holding - Vallejos and Distribution enhancements for Limewire
United States v. Vallejos, 2014 WL 503537 (9th Cir. Feb. 10, 2013), decision available here.
Players: Decision by Judge Gould, joined by Judges Hawkins and Paez. Hard-fought appeal by AFPD Ann H. McGlenon, ED Cal.
Facts: An investigation and search revealed child porn on Vallejos’ computer. Id. at *1. Vallejos admitted to the police that he was responsible for the porn on the computer, and voluntarily gave the police an audio and video-recorded statements. Id. Parts of his confession were omitted at trial; over his objection, the rest was not permitted to be introduced. Id. at *2. He was convicted and sentenced to 188 months for receipt of child porn. Id.
Issue(s): “Vallejos appeals the district court’s decision to deny his requests that . . . his unedited confession by shown to the jury under the Rule of Completeness, Fed. R. Evid. 106 . . . .” Id. at *1. “Vallejos contends that the redacted version of his confession misled the jury because it left out parts concerning, among other things, his prior prison sentence, his drug history, and his church.” Id. at *2.
Held: “This argument misunderstand’s the Rule’s purpose. The district court properly concluded that the Rule of Completeness is not so broad as to required the admission of all redacted portions of a statement, without regard to the content. . . . The district court did not abuse its discretion when it determined that – while this evidence might be relevant to ‘sympathy’ and sentencing – the redacted statement was not misleading and therefore that the Rule of Completeness did not require admission of the full statement into evidence.” Id. at *2.
Of Note: The Vallejos hold on the “Rule of Completeness” is frustrating, but it is not the most dangerous holding in the opinion. In a later discussion rejecting an Apprendi challenge, Judge Gould holds – for the first time in the Ninth Circuit – that the knowing use of a file-sharing program (like Limewire) to download child porn involves both the receipt and distribution of porn. Id. at *5. This triggers another distribution enhancement – and it doesn’t matter whether the defendant knowingly, or unknowingly, allowed others access to those files. Id. at *5. Even worse, “it matters not, for purposes of the enhancement, whether someone else actually downloads a file from the defendant’s computer.” Id. It is a troubling holding of first impression in the Ninth, and piles guideline exposure even higher for child porn – an offense where most agree the guidelines are already out of whack.
How to Use: Will ignorance defeat this enhancement? Still undecided, in the Ninth. Id. at *5 & n. 5. Here, Vallejos did not present evidence “that he had so little knowledge of how LimeWire worked as would unmistakingly negate his presumed intent to distribute the child pornography files on his computer to all LimeWire users.” Id. If your client neither “installed the file-sharing program on the computer nor knew how to operate it,” id., there still might be a window of light for an “ignorance” defense to this distribution enhancement.
For Further Reading: Seventy percent of district judges believe that the child porn guidelines for possession are too high, 69% think the range is too high for receipt. Tack on another two offense levels for “distribution” whenever LimeWire raises its ugly head and the guideline has drifted even further from any empirical mooring. For a great summary of federal courts ‘rejection of Congressional meddling in the empirical business of the Commission, see “A Policy of Variance: Downward Departures from Child Pornography Sentencing Guidelines” available here.
Limewire image from http://www.stefanleijon.com/2010/10/r-i-p-limewire/
Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndalfpd.org