Case o' The Week: A BEAutiful Appellate Waiver Case - Dailey and SORNA Registration Requirements

Give thanks, for the Ninth's limitations on appellate waivers.

United States v. Dailey, 2019 WL 5688814 (9th Cir. Nov. 4, 2019), decision available here.

Players: Decision by Judge Bea, joined by Judges Gould and Friedland.  

Facts: Jazzmin Dailey was charged with the prostitution of a minor in Las Vegas. Id. at *1. She charge-bargained to violating the “Travel Act,” which criminalizes travelling in interstate commerce with the intent to commit unlawful activity (including non-sexual criminal activity). Id. at *2; see also 18 U.S.C. § 1952(a)(3).

   Her plea agreement contained an appellate waiver.

  In an admirable decision, Chief District Judge Gloria Navarro varied downwards and sentenced Dailey to no imprisonment and three years of probation. Id. at *3.   The sentence included a provision that Dailey had to comply with the Sex Offender Registration and Notification Act (SORNA) as directed. Id. at *3. 

  Dailey was required to register as a sex offender in her state of residence, Arizona. Id.

Issue(s): “On appeal, Dailey makes three arguments challenging the legality of the condition requiring her to register as a sex offender. First, she argues the district court imposed an illegal sentence by requiring her to register as a sex offender because she was not convicted of a ‘sex offense.’ Next, she argues the district court did not provide her adequate pre-sentencing notice that she would be required to register as a sex offender under SORNA. And finally, she argues the district court delegated the Article III power to impose a criminal sentence by leaving the determination whether Dailey would be required to register as a sex offender to the probation office or state officials.” Id. at *1.

Held: “[W]e reject all three arguments, conclude that the sentence was legally imposed, and dismiss the appeal based on the enforceable appellate waiver in Dailey’s plea agreement.” Id.

Of Note: The core issue of Dailey is whether the residual clause in SORNA is subject to the categorical approach, (on the issue of whether an element of the statute of conviction required that the victim was a minor). Id. at *6-*7. Judge Bea concludes it is not: “the statutory text and structure are clear.” Id.

  The Ninth joins the 4th, 5th, and 8th Circuits and holds that a non-categorical approach to the SORNA registration requirements is appropriate. Id. at *7.

  This is bad news for our clients – the non-categorical approach cast a much broader net, and will ensnare defendants like Dailey in the SORNA registration requirements.

How to Use: There’s lots of words, in Dailey, for a case that ultimately upholds an appellate waiver. Judge Bea explains that the familiar Bibler exceptions to appellate waivers includes an unlawful sentence – and that unlawful probation conditions fall within this exception. Id. at *3 (citing United States v. Watson, 583 F.3d 974, 987 (9th Cir. 2009)). Judge Bea then works through each of the challenges to the registration requirement, to consider whether it was lawful. Because the terms of probation were finally concluded to be lawful, the Ninth ultimately enforces the appellate waiver.

  From the defense perspective, this appellate waiver turns out to be a de minimis barrier to full Ninth review of the legality of the conditions of probation (and the same theory applies to supervised release!)

  Consider Dailey when conditions of probation or supervised release get your goat, but there’s an appellate waiver in the plea agreement. If your Ninth challenge goes to the legality of the supervision conditions, an appellate waiver in a plea agreement is essentially a meaningless term: appeal away. If the probation (or supervised release) conditions are unlawful, the plea agreement’s appellate waiver is unenforceable: our clients win. If the conditions are lawful, the waiver is enforced – but our client has had full appellate review of their legality.

                                               

For Further Reading: Two more of President Trump’s Ninth nominees, Mr. Lawrence VanDyke and Mr. Patrick Bumatay, cleared another Senate hurdle last week. See article here.  

Image of turkey urging waiver from https://mainesport.com/turkey-ride/

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: Conviction, Old, yet Ninth Upholds - Hohag and Conditions of Supervised Release, SORNA

The Hon. Judge Susan P. Graber

Not too old, if SORNA, we’re told.

United States v. Hohag, 2018 WL 3149773(9th Cir. June 28, 2018), decision available here.

Players: Decision by Judge Graber, joined by Judge M. Smith and DJ Hellerstein. 

  Hard-fought appeal by AFPD Francesca Freccero, D. Or. FPD.

Facts: Hohag was convicted of rape of a minor in 1992. Id. at *1. As part of that sentence, he was required to register as a sex offender. Id. 

  He moved to several states without registering, was arrested in Oregon in 2016, charged federally and convicted of failure to register as a sex offender. Id. 

  At sentencing, Hohag explained he had undergone sex offender treatment while incarcerated, and provided a polygraph confirming he was truthful in denying he’d had sexual contact with a minor since his release from supervision in ’02. Id. He was sentenced to time served. 

  The court imposed conditions of supervised release that included participating in a “sex-offense specific assessment” and submitting to polygraph testing “in conjunction with the . . . assessment.” Id.

Issue(s): “Defendant timely appeals, challenging only the two conditions of supervised release that relate to his history of sexual misconduct.” Id. at *2.

Held: “Together, T.M. and Johnson illustrate that, when we consider a condition of supervised release meant to address a defendant’s history of sexual misconduct, we look to at least two factors. First, as in every case, we consider the burdensomeness of the condition at issue. An assessment is significantly less burdensome than required treatment. Second, we ask whether the condition is reasonably necessary to accomplish one of the legitimate goals of supervised release. In answering that question in this context, we approach with some skepticism a condition that rests solely on an old sex offense. But when some recent event suggests that a defendant still poses a risk of engaging in sexual misconduct, there exists a greater need for a condition meant to address a defendant’s history of sexual misconduct.” Id. at *3.

  “Because the conditions at issue are not particularly burdensome and because they relate to Defendant’s crime of conviction, we conclude that the district court did not abuse its discretion.” Id. at *5.

Of Note: In United States v. T.M., 330 F.3d 1235, 1239–40 (9th Cir. 2003), the Ninth reversed sex-offender treatment conditions imposed on the back of an old sex-offense prior.

  In United States v. Johnson, 697 F.3d 1249, 1251 (9th Cir. 2012), the Ninth upheld a sex-offender assessment condition despite equally old priors.

  In the present case, Hohag, Judge Graber concedes (in a considerable understatement) that these cases arrive at “seemingly conflicting conclusions.” Id. at *3. The analysis in Hohag struggles to explain the distinctions, and concludes that the conditions here – an assessment – based on a “related” sex offense (a SORNA crime), support the conditions. Id. at *4-*5. It is a troubling outcome, assuring us that a sexual-assessment is a “minimal burden on [Hohag’s] liberty,” and that polygraph testing is a “relatively uninstrusive means of evaluating a defendant’s risk of engaging in sexual misconduct.” Id. at *3.

  Like it or no, Hohag joins T.M. and Johnson in the Ninth’s – complicated – guidance on supervised release conditions for sex offenders.

How to Use: A (small) hook in Hohag is the fact that the condition imposed was just an assessment – it was not the more intrusive sex-offender treatment. Id. at *4. Judge Graber relies on that heavily on that distinction while upholding the condition. Id.

  Push back when Probation wants a condition of treatment on an old offense: that falls closer to the prohibited conditions in T.M., in the spectrum laid out by Judge Graber in Hohag.  

                                               

For Further Reading: The defense argued that the Sentencing Commission did not recommend sex offender assessments as a condition of supervised release for SORNA convictions (like the one underlying Hohag). Id. at *4. “Meh,” sniffed the Ninth – Guideline conditions are “only advisory.” Id.

   Like the Ninth, the Second Circuit also seems increasingly indifferent to the Commissions’ wisdom. For an interesting piece on that trend, see Substantive Reasonableness Review Finally Getting Teeth in the Second Circuit, available here.

Image of the Honorable Judge Susan P. Graber from https://twitter.com/scotusambitions/status/570100615684227072

Steven Kalar, Federal Public Defender, Northern District of California. Website at www.ndcalfpd.org

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On the Importance of George II - the Constitutionality of SORNA

King George Augustus II

Good news in the Ninth: all constitutional challenges to SORNA are fair game again in the Circuit, since the Court vacated the conviction of Mr. George and dismissed the case in United States v. George, ___F.3d ____, No. 08-30339, slip op. 2593 (9^th Cir. Mar. 7, 2012), 2012 WL 718297 (decision available here). 

The short opinion in George II doesn’t reflect its significance.

Mr. George’s original appeal resulted in the Ninth Circuit’s rejection of the following challenges: lack of state implementation at the time of his travel, Congressional authority under the Commerce Clause, and an Ex Post Facto Clause as applied to Mr. George. United States v. George , 625 F.3d 124 (9^th Cir. 2010). (available here). 

The 9^th Circuit Court of Appeals dismissed George II, relying only upon the narrow grounds articulated in United States v. Valverde, 628 F.3d 1159 (9^th Cir. 2010). The dismissal came in the wake of the Supreme Court’s consistent, but more limited decision in Reynolds v. United States, 132 S.Ct. 975 (2012) holding that SORNA requires a valid AG rules implementation for SORNA to apply to pre-act offenders. Mr. George had traveled prior to the August 1, 2008 SMART guidelines effective date. The Valverde and Reynolds decisions both opened the door to the subject matter jurisdiction challenge, which cannot be waived and may be raised at any time. United States v. Pheaster, 544 F.2d 353, 360-61 (9^th Cir. 1976). Whether or not a statute was in effect on a given date is an issue of subject matter jurisdiction, United States v. Caperell, 938 F.2d 975, 977 (9^th Cir. 1991). 

Most importantly, the George II dismissal vacates the entirety of the original George opinion. Now all constitutional challenges are again available within the 9^th Circuit. Opposition arguments to the Affordable Health Care Act, and the outcome of the litigation pending before the Supreme Court, could impact SORNA. If Congress can’t mandate insurance purchases, how can the Commerce Clause give Congress the authority to mandate a non-commercial registration requirement for someone who simply wishes to exercise his constitutional right to travel interstate? Justice Sotomayor’s opinion in Carr v. United States 130 S.Ct. 2229(2010) should also support constitutionality challenges beyond pre-effective date actions. While Carr avoided the ex post facto question through statutory construction, the language of the majority opinion is promising. 

There are pending appeals in the pipeline that raise the issues previously addressed in George. A Ninth Circuit opinion striking down SORNA on due process, commerce clause or ex post facto grounds would create a circuit split; the 6^th Circuit recently joined the growing number of Circuits to upheld SORNA under Commerce Clause and Ex Post Facto challenges in United States v. Coleman, (blogged about here).

While many Circuits have addressed SORNA, few states (only Nevada in the 9^th Circuit) have implemented SORNA. (For a list of jurisdictions who have implemented regulations, see here ). SORNA regulations disregard a risk classification system based upon an offender’s propensity to reoffend. Instead, SORNA relies only upon the Tier I II and III classification system that is based solely upon the nature of the prior offense that triggered registration requirements. This also creates a challenge to the sentencing structure set forth at U.S.S.G. § 2A3.5, which increases the base offense level based on the prior offense.

Congratulations to Rebecca Pennell with the Federal Defenders of Eastern Washington in Yakima for the George win; to Rachelle Barbour, Lexi Negin and David Porter with the Sacramento FD for the Valverde victory that paved the way; and to Paresh Patel and the Greeneville and Knoxville APDs for the work to prevail on the APA violation claim in United States v. Utesch, 596 F.3d 302 (6^th Cir. 2010). 

Image of King George the II from http://en.wikipedia.org/wiki/George_II_of_Great_Britain

Diane E. Hehir
Trial Attorney
Federal Defenders of Eastern Washington and Idaho

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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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