Case o' The Week: Peeples and Pretrial Release for Child Porn Defendants

Litigating in the post-Booker world should have prepared us for the Ninth's three-page, per curiam, New Year's Eve decision in Peeples, where a panel assures us that "mandatory" is really "discretionary," so there's no constitutional worries at all. United States v. Peeples, No. 10-30338 (9th Cir. Dec. 28, 2010), decision available here.

Players: Hard-fought appeal by Montana AFPD John Rhodes. Per curiam decision by Judges Goodwin, Rymer, and Graber.

Facts: After being indicted for receipt of child porn, Peeples was released by the magistrate. Id. at *1. Some conditions of release were mandatory under the Bail Reform Act, as amended by the Adam Walsh Act of 2006. Id. Specifically, Peeples had a curfew and was subject to electronic monitoring. Id. Peeples challenged these mandatory conditions of release; the district court upheld the conditions. Id.

Issue(s): “Peeples . . . appeals the district court’s denial of his constitutional challenge to his conditions of release imposed pursuant to the Adam Walsh Child Protection and Safety Act of 2006 (‘Walsh Act”), 18 U.S.C. § 3142(c)(1).” Id. “Peeples’s principal argument is that the Walsh Act’s mandatory release conditions are unconstitutional as applied to him.” Id. at *2.

Held: “Peeples’s argument that his constitutional rights have been violated because he has not been afforded an individualized determination of his release conditions cannot stand in light of the district court’s duty to exercise its discretion in imposing the mandated release conditions.” Id. at *2. “Because the Walsh Act requires the district court to exercise its discretion in applying the mandatory release conditions to each individual’s circumstances, and in view of the established principle that a statute should be read to avoid serious constitutional issues, Peeples’s constitutional challenge to the Walsh Act does not succeed.” Id. at *3.

Of Note: This is a disappointing decision – both in its outcome, and in its analysis. The three-page opinion gives short-shrift to serious constitutional challenges that have been (successfully) raised by the defense bar since the 2006 Adam Walsh amendments to the Bail Reform Act. Most notably, the case side-steps the biggest constitutional problem by reassuring us that a magistrate still exercises individualized discretion when imposing mandatory conditions in the release order.

Huh?

Put plainly, the Ninth holds that the conditions aren’t mandatory because i) a magistrate is exercising his or her discretion when deciding to release the defendant at all, and ii) a magistrate still decides the fringes of the mandatory conditions, like when curfew starts. Id. at *2. The panel in Peeples dodges the real constitutional question: how can there be an individualized determination of release conditions, when a magistrate must impose a curfew and must impose electronic monitoring – even if the magistrate finds that those conditions are not warranted except for the Adam Walsh requirements? Hopefully an en banc panel or the Supreme Court will someday give this statute the constitutional scrutiny it deserves.

How to Use: Peeples only avoided constitutional infirmity by relying (too heavily) on the magistrate’s discretion in fashioning the nature of the mandatory Adam Walsh conditions. Id. at *2 (“The [magistrate] court took significant steps to ensure that the monitoring and curfew conditions did not interfere with Peebles’s work- and school-related needs.”) Use this principle against the government by fighting to limit the mandatory conditions as severely as possible. For example, why not limit electronic monitoring to only at night, when the defendant is on curfew? Id. If the magistrate bench refuses to tailor mandatory Adam Walsh conditions based on the specific characteristics of the defendant, then there isn’t an individualized assessment of release conditions. Without an individualized assessment, the statute is again vulnerable to an as-applied constitutional challenge. Put differently, Peebles’s stretch to save the Bail Reform Act from constitutional challenge now requires that magistrates do more tinkering with the mandatory Adam Walsh release conditions.

For Further Reading: For a useful discussion of the impact of the 2006 Adam Walsh Act on pretrial release, see Marcus J. Berghahn, Adam Walsh Act: Implementation, Implication and Challenges here.


New Year's card from http://www.dancegumbo.com/NYE


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


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Case o' The Week: The Ninth Gets it Wright -- Federal Jurisdiction in Child Pornography Cases

Does a statute that makes it a federal crime to transport child pornography across state lines, require that the images actually cross state lines?

Um, yes. United States v. Wright, 2010 WL 4345670 (9th Cir. Nov. 4, 2010), decision available here.

Players: Important victory for D. Az. AFPDs Heather Williams and Brian Rademacher. Decision by Judge Milan Smith, concurrence by Judge Hug.

Facts: An FBI agent got onto a mIRC (Internet Relay Chat) and directly hooked into a a computer server later traced to Wright’s address. Id. at *1. The agent downloaded child porn, and Wright was charged with the “advertisement, transportation, and possession of child pornography.” Id. at 2. Because the FBI agent’s computer (in Arizona) linked directly to Wright’s computer (in Arizona), (albeit over the internet) the images did not move across state lines. Id. at *3.

Wright beat seven counts at trial. Id. (!?! - a remarkable victory - seven acquittals in a child porn trial!). One of the counts of conviction was transportation of child porn under 18 USC § 2252A (as it existed in 2003). Id.

Issue(s): “Whether section 2252A(a)(1)’s ‘in interstate . . . commerce’ language requires the government to prove that the images themselves traveled across state lines appears to be a question of first impression in this circuit. Wright’s principal argument is that the statute does so require.” Id. at *3 (emphasis added).

Held: “[O]ur precedent indicates that criminal statutes punishing the transmission of the relevant material ‘in interstate or foreign commerce’ require the material itself to cross state lines. Yet here, as the government concedes, none of the images Wright transported to Andrew’s computer left the state of Arizona. Indeed, none traveled outside the city of Tuscon.” Id. at *6. “[W]e hold that an interstate predicate act - here, Wright’s connection to the IRC network - does not provide a sufficient basis for federal jurisdiction under section 2252A(a)(1).” Id. at *9.

Of Note: Judge Milan Smith pens a terrific analysis of the legislative history of the federal child porn statute, and the jurisdictional requirements of the precise language used. The case is a huge win and should be required reading for anyone mulling a challenge to the “jurisdictional hook” of any statute. Note, however, that this is not a broad invalidation of the federal child porn statutes – Wright presents some pretty unique facts. The agent in Wright accessed the images using “mIRC:”a very specific file-sharing client that “linked” the two machines. That is a very different system than, for example, downloading images off of a web page, or e-mailing porn. Both of these methods would have almost certainly created a jurisdictional hook under the Wright analysis.

How to Use: AFPDs Williams & Rademacher are formidable defense duo, and this lengthy opinion wades through their many additional challenges – with some good language and results. On the jurisdictional front, Judge Smith rejects the government’s argument that any use of the internet is always enough provide the jurisdictional hook for a charge. Id. at *11. Along the way he also scolds the government that the mere use of a computer is also insufficient: “Whether the defendant transported child pornography by mail, by sea, or by computer, the government must still prove it crossed state lines.” Id. at *8.

Moreover, while the defense didn’t win on this argument, Judge Smith provides a very sympathetic and quotable discussion of the defense right to introduce FRE 404(b) evidence – even against absent witnesses. Id. at *20.

Finally, Wright will be the go-to case to reverse those tight-lipped D.J.’s who summarily deny defense motions with contested evidentiary issues, with no factual findings. Id. at *13. Silence may be golden, but it’ll earn a district court a quick remand when it means that the Ninth can’t conduct a meaningful review. Id. at *12-*13.

For Further Reading: The biggest practical impact of Wright is a disappointing discussion at the end of the opinion on the financial and time limitations on computer forensic review. Id. at *24-*25. Anyone undertaking defense computer forensic review – or paying for it – should read this section, and should worry about the costs that it will generate. The defense, it appears, was sandbagged on the eve of the Wright trial, and didn’t get a needed continuance to counter a new forensic theory. Id. Their complaint fell on deaf ears on appeal. How do we avoid this situation in future cases? Empty CJA coffers, pay for scorched-earth forensic analysis, and salt the appellate record when money and time is unfairly restricted. For an interesting article worrying about electronic evidence in criminal cases, see Daniel B. Garrie, & Daniel K. Gelb, E-Discovery in Criminal Cases: A Need for Specific Rules, available here.


Image of mIRC logo from http://www.mirc.com/



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


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Case o' The Week: Close Enough for Government Work, Saeteurn & Erroneous PSRs

"Close enough for government work" is close enough the Ninth in a disappointing decision. See United States v. Saeteurn, __ F.3d __, 2007 WL 2983806 (9th Cir. Oct. 15, 2007), decision available here. In Saeteurn (written by Judge Bea) the Court tolerates disputed and erroneous information in a PSR, unresolved by the district court -- despite the fact that this error will have a profound impact on the defendant's conditions of confinement. A very troubling decision that calls out for en banc review.

Players: Hard-fought appeal by ED Cal AFPD Tim Zindel.

Facts: Saeteurn pleaded guilty to drug crimes. 2007 WL 2983806, *1. The PSR (incorrectly) described him as a legal permanent resident. Id. Actually, the defense explained, Saeteurn was a citizen with a mother who had naturalized when he was minor. Id. at *1 n.1. The district court refused to resolve the defendant’s objection to the PSR, despite the fact that this error would affect Saeteurn’s conditions of confinement. Id.

Issue(s): “[I]s the sentencing judge required to resolve disputes regarding facts recited in the Presentence Investigation Report (“PSR”), when those facts do not affect the term of imprisonment imposed but may affect how the sentence is served, including a possible early release from prison?” Id.

Held: “We hold that there is no such requirement upon the sentencing judge.” Id.

Of Note: This case has the defense bar up in arms. Tim reports that the government never contested the defense objection – in other words, it was effectively conceded that the PSR was wrong. Moreover, this PSR error will have a huge impact on Saeteurn’s incarceration. Because of this alienage issue, he’ll be ineligible for a camp, will likely end up in a higher-security facility, won’t get into rehabilitative programs, and won’t be eligible for early release from prison. Id. There’s no shortage of information in a PSR that is often wrong, and that has a tremendous impact on a defendant’s incarceration: gang affiliation, conduct on pretrial release, and – most recently – allegations of prior sex misconduct. After Adam Walsh, BOP flunkies review every PSR, highlight all sex-related information, and shunt federal inmates to sexual predator civil commitment proceedings. Saeteurn is thus remarkably divorced from the reality of current practice: as PSRs become more and more critical to every aspect of an inmate’s term of custody, the Ninth responds by tolerating critical errors in the reports?

Judge Bea’s reassurance that the impact of a PSR’s error on incarceration can be corrected with a Section 2241 habeas is particularly frustrating. Id. at *4 n.12. (See DOJ's strategy for defeating 2241 habes here). While this habeas slowly grinds through the system, the inmate must wait in more-onerous conditions of confinement (based on a erroneous PSR?) Even from a pure resource-allocation perspective, this is a bad decision. Why not correct PSR errors when a defendant has counsel and everyone is prepared to litigate the issue at a sentencing hearing? Or is the Ninth hedging that by shifting the dispute from sentencing to habeas it will effectively moot many of these cases when discouraged (and unrepresented) inmates just give up?

How to Use: A petition for rehearing is brewing. In the interim, note that Saeteurn just holds that a district court can avoid resolving disputed PSR facts if these facts don’t affect sentencing. Of course, a district court retains discretion to correct PSRs – and a responsible judge will, particularly when BOP consequences are explained. Sentencing Resource Counsel Baron-Evans notes that Probation Monograph 107 provides authority to correct and amend a PSR – and has been used to black out or completely revise errors in reports.

For Further Reading: As noted above, Saeteurn hits a real nerve because BOP routinely uses PSRs to “certify” federal inmates for Adam Walsh civil commitment. Civil commitment is effectively a life sentence – and we’ve already seen examples where the PSRs of referred inmates have contained patently erroneous information about the inmate’s sexual history. Beware: every federal inmate is now being screened for civil commitment before release! See BOP Watch Blog (search “Re: Child Exploitation Conviction.”) Every federal practitioner should read the Adam Walsh Civil Commitment memo available here . This excellent memo demonstrates why pushing the district court for a “clean” PSR is so important - Saeteurn or no.

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

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Case o' The Week: Doe's Dough, Restitution for Sex Offenses -- United States v. John Doe

The Ninth Circuit backs funding for education and vocational training for sexually-abused foreign minors. United States v. John Doe, __ F.3d __, Slip. Op. 6331 (9th Cir. May 29, 2007), decision available here. Noble sentiment -- but is that what the restitution statute contemplates when it demands a causal link between child abuse, and criminal restitution?

Players: Hard-fought appeal by CD Cal AFPD Jonathan Libby. Opinion by Judge O'Scannlain.

Facts: John Doe (interestingly, the panel protected his identity) was “inspected” at Los Angeles International Airport ("LAX.") Hidden in his jeans was a memory stick, which contained hundreds of images of child porn (including scenes in which he participated.) Slip Op. at 6336. Doe told his brother to destroy other data; instead, that media was recovered and revealed thousands of additional images. Id. Doe plead to producing child porn abroad, and to engaging in sexual conduct with minors abroad. Id. He stip’ed to a 204 month sentence recommendation. Doe asked for a preview of the recommended conditions of supervised release: the court refused. At sentencing, the district court set over $18,000 in restitution, for psych treatment, education, and vocational training for the victims. Id. at 6339.

Issue(s): 1. “We must decide whether restitution can be awarded to the overseas child victims of sexual exploitation crimes committed by an American citizen while he was traveling outside the United States.” Id. at 6335.

2. “Doe also contends that the failure of the district court to provide advance notice of certain special supervised conditions violated his due process rights and the rights afforded by Rule 32.” Id. at 6348.

Held: 1. “[I]n every circuit to consider the causation requirement of [the Mandatory Restitution for Sexual Exploitation of Children Act, 18 U.S.C. § 2259], a rule of reasonableness is applied. We will uphold an award of restitution under Section 2259 if the district court is able to estimate, based upon facts in the record, the amount of defendant’s [sic. probably should be, “victim’s"] loss with some reasonable certainty.” Id. at 6344. “[W]e believe that the district court did not abuse its broad discretion in crafting its $16,475 restitution award.” Id. at 6348.

2. “[W]e conclude that the district court did not provide adequate notice to Doe of certain additional supervised release conditions that were imposed.” Id. at 6348. “Thus, we vacate the conditions of supervised release and order a limited remand to the district court with instructions that the district court provide advance notice of any nonstandard conditions it deems appropriate. Doe should be given a chance to challenge their applicability to his case.” Id. at 6349.

Of Note: This is a weird case. As Jon Sands noted in his earlier summary below, in evaluating the reasonableness of the restitution order the Ninth took note that of Doe’s bargain restitution, by virtue of the fact that he molested Third World children: “It does not escape our attention that Doe has reaped a benefit by choosing to molest and to exploit children in a foreign country; now convicted, he must only reimburse the children at developing-world rates for professional services.” Id. at 6346.

A dispassionate analysis (a precious-rare commodity in this area of law) suggests that Doe was probably right. As a matter of law, why does criminal restitution include things like education, and vocational training? As admirable as it is to improve the children’s lot in life, was their poverty proximately caused by Doe’s abuse? The explanation of this causal link isn’t particularly compelling. Id. at 6346-47. This approach looks a lot like a civil “pain and suffering” award crammed into a criminal restitution order. In an abstract sense, maybe that's a just result: these foreign kids could have never found a lawyer to pursue small civil remedies, against an imprisoned child molester represented by an AFPD. Nonetheless, to get to that result the restitution order approved by the panel stretches "causation" to the breaking point.

How to Use: At sentencing, remember the Doe rule (previously articulated in United States v. Wise, 391 F.3d 1027 (9th Cir. 2004)): the defense is entitled to notice of unusual conditions of supervised release (conditions not required by statute or recommended in the guidelines). Id.

For Further Reading: Sentencing Resource Attorneys Amy Baron-Evans and Sara Noonan scared the bejesus out of hundreds of AFPDs at last week’s Defender’s conference in Miami, with their talks on SORNA and the Adam Walsh Act. If you have a federal sex case, don’t take another step before you read Amy and Sara's “Adam Walsh I” and “II” here. ("Adam Walsh III" should be out next week.These excellent tomes are, by far, the best summaries of the horrible new laws and regulations for federal sex offenses.

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

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