United States v. Sullivan, Nos. 12-10196, 12-10217 (Ikuta, J, with Tallman, J, and O'Connell, DJ (CD Cal)) ---

The court affirmed the defendant's convictions (on his appeal) and vacated his sentences (on the government's cross-appeal) for producing and possessing child pornography.  The published portion of this appeal resolves five issues, each of which I'll discuss in turn.

The defendant was on parole for California state convictions relating to having sex with a 14-year-old girl.  (This case appears to involve similar conduct.)  One of the conditions of parole was that he was required to submit to searches of his computers and mobile phones.  While he was living in a motel in Oakland, California, he met a girl in Berkeley and convinced her to start living with him.  Three times they went to a house in Vacaville and had sex there; on one of those occasions, he filmed it.  Later he transferred the video to a laptop.  The defendant also started pimping the girl, and Oakland police arrested her in an area frequented by prostitutes.  The girl was returned to her family, who reported to the police that the defendant had kidnapped, raped, and pimped her out.  Parole officers arrested the defendant at the Oakland motel, but the Berkeley police handled the investigation because the girl had initially been kidnapped in that city.  As part of that investigation, the defendant consented to a search of his laptop by the Berkeley police.  In addition to revocation charges in California state court, he was indicted on two federal counts -- producing child pornography, in violation of 18 U.S.C. § 2251, and possession of child pornography, in violation of 18 U.S.C. § 2252.  The defendant had a bench trial. He was later sentenced to the respective mandatory minimums on each charge (25 and 10 years), to be served concurrently.  Even though the trial judge rejected the defendant's testimony as "not credible" and "not true," he declined to enhance the Guidelines range under U.S.S.G. § 3C1.1 for obstruction of justice.  The defendant appealed his convictions and the government cross-appealed the sentence.

A.  Venue was proper for the production charge in the Northern District of California even though the video was made in the Eastern District.  For "continuing offenses," venue is proper in any district where the offense was "begun, continued, or completed."  18 U.S.C. § 3237(a).  Trial evidence showed that the defendant began his control over the victim girl in Berkeley, in the Northern District, and used that control to force her to make the video in Vacaville, in the Eastern District.  Because the defendant's conduct spanned both the Northern and Eastern Districts, venue was proper for the production charge in the Northern District (where venue was also clearly proper for the possession charge).

B.  The defendant's commerce-clause challenge to the charges was foreclosed by United States v. McCalla, 545 F.3d 750 (9th Cir. 2008) (for the production charge), and United States v. Gallenardo, 579 F.3d 1076 (9th Cir. 2009) (for the possession charge).  Nothing in National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012), was inconsistent with the reasoning of those two cases, so they were not implicitly overruled and the panel was bound to follow them.

C.  The government's unexplained three-week delay in obtaining a warrant to search the defendant's laptop was not unreasonable and did not violate the Fourth Amendment.  The court balanced the nature of the intrusion on the defendant's privacy interests against the nature of the government's interests in effecting the search, taking into account the defendant's eventual consent to the search and his status as a parolee.  His privacy interests were minimal, the court said, because the defendant was in custody on parole revocation charges during this three-week period, he expressly consented to the search, and he was a parolee who had already been subject to a search requirement.  Moreover, the government's interests in searching the laptop was legitimate because of the need to supervise parolees, the need to discover evidence of crimes (!), and because the laptop was transferred from the custody of parole officers to the Berkeley police in order to carry out the search. 

D.  The mandatory minimum sentences applied because the defendant's prior convictions under Cal. Penal Code §§ 261.5(d) & 288a(b)(2) were categorically generic crimes "relating to aggravated sexual abuse, sexual abuse, or abusive sexual contact involving a minor or ward." 18 U.S.C. §§ 2251(e); 2252(b)(2).  Because the generic crime defined by the federal mandatory-minimum statutes was simply one "relating to" the prohibited sexual conduct, the state statutes in question here need not be equivalent to the listed federal generic offenses.  They simply had to "stand[] in some relation to, bear[] upon, or [be] associated with that generic offense."  United States v. Sinerius, 504 F.3d 737, 740 (9th Cir. 2007).  This permits the federal sentencing judge to go beyond a strict comparison of the elements of the state crime to the elements of the generic offense.  And it was enough for the panel that the provisions of the California Penal Code involved here applied when the victim was under 16 and the defendant over 21.  That meant that the California statutes related to sexual abuse of a minor, and the mandatory minimums applied.

E.  The sentencing judge should have another opportunity to explain whether he would impose the same sentence after applying the two-level upward adjustment for obstruction of justice, because his reasons for not applying that adjustment were flawed and the court could not tell from the record whether he would have imposed the same sentence if the adjustment had been applied.  The judge did not actually have to be misled before the adjustment applies; it was enough that the defendant's false testimony had the "potential for obstructing the prosecution of the offense," which "providing materially false information to a judge" clearly has.  And the judge incorrectly declined to apply the enhancement out of fear for double punishment, because the enhancement punishes perjury and not the underlying crime.  The court thus remanded for resentencing in order to determine whether the sentencing judge would change his sentence if the enhancement applied.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2014/05/28/12-10196.pdf