US v. Rusnak, No. 17-10137 (11-25-20)(R. Nelson w/Berzon & Lee). Note:  This is an Az FPD appeal.

The 9th affirms convictions for child porn, denying arguments involving misstatements in the warrant, unfair enforcement of a discovery agreement, and prosecutorial misconduct, including “outside the scope of direct” cross examination and “toeing the line” in closing arguments. The 9th did vacant several SR conditions and remanded for clearing up the record.

The defense was that defendant was not living at home, and someone else (actually identified) had accessed, possessed, and distributed the child porn. The 9th recognizes that the 4th Circuit has allowed the raising of Franks challenge when an affiant who secured a search warrant makes contradictory statements at trial.  The 9th sidesteps the adoption here because of waiver.  The 9th further concludes there was no plain error.

As for the discovery agreement (part of practice in the Tucson division), the 9th finds no unequal application when it limited the defense witness (who was not disclosed) but allowed the agent’s undisclosed testimony. The 9th concludes that in weighing the testimony, the agent’s testimony was foreshadowed by the summary provided. The limiting of the wife’s testimony actually, to the 9th, benefitted the defendant.

Plain error occurred when the prosecutor expanded the scope of the wife’s direct, asking about “other visitors” to the house. This was beyond the agreement reached. However, the plain error was harmless given the evidence. The prosecutor also came close to misconduct in closing but did not step over in arguing inferences about who could access, and what was shown. The court’s limiting instruction cleaned it up.

Last, the court had to make specific findings for some of the SR conditions. Hence, a remand.

A spirited appeal by Molly Karlin, AFPD, Arizona (Phoenix) in a tough case.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/11/25/17-10137.pdf