Case o' The Week: Timing Is(n't) Everything - Thornhill and the Admission of Sex Priors

Hon. Judge N.R. Smith

  “After” means after.

 (Unless it happens before).

United States v. Thornhill, 2019 WL 5152584 (9th Cir. Oct. 15, 2019), decision available here.

Players: Decision by Judge Tallman, joined by Judge Ikuta. 

 Well-reasoned concurrence by Judge N.R. Smith.  

Facts: A call lead the FBI to Thornhill. They found child porn on his phone, and a handwritten list of porn search terms. Id. at *1. He was charged with receipt of child porn and went to trial. Id. 

  Before trial, the government noticed its intent to introduce evidence of Thornhill’s prior state conviction for sexual abuse of a minor (his eleven-year old daughter.). Id. At trial, Thornhill stipulated that the images were actual minors and were produced outside of the state of Alaska, that the phone was his, and that the search-term list was in his handwriting. Id. at *2. Before any witness testified, the district court deemed the prior admissible. Id. at *8-*9 (N.R. Smith, J., concurring). 

  The government called one witness, an agent. The government introduced Thornhill’s prior, and the agent explained the prior had involved Thornhill’s daughter. Id. at *2. 

  Thornhill was convicted after two days of deliberation, and sentenced to 262 months (on a receipt case!) Id. at *2.  

Issue(s): “The question before us is whether the district court abused its discretion when it admitted evidence of Thornhill’s prior Alaska state conviction for sexual abuse of a minor in the second degree.” Id. at *1.

Held: “We conclude that it did not, and we affirm.” Id.

Of Note: This appeal is about the interplay of FRE 414 (permitting evidence of similar crimes in child molestation cases), FRE 403 (the “probative v. prejudicial” balancing test) and United States v. LeMay, 260 F.3d1018 (9th Cir. 2001) (the Ninth’s explanation of how these rules have to interact).

  The 2001 LeMay opinion set out five factors used to determine admissibility. The fifth factor is “the necessity of the evidence beyond the testimonies already offered at trial.” Id. at *3 (emphasis added). But wait -- in Thornhill, the D.J. didn’t wait to hear the testimony offered at trial. Instead, the court ruled that the prior was admissible before any witnesses testified. So how does the majority reconcile the non-discretionary language of LeMay, with the premature admission in Thornhill? 

  It doesn’t, opines Judge N.R. Smith. 

  In a compelling concurrence, Judge N.R. Smith expresses his “concern” with the majority’s “casual disregard” of the “non-discretionary language” of LeMay. Id. at *7 (N.R. Smith, J., concurring). The concurrence correctly explains that child molestation priors are the easiest for the government to get in, yet they have a “profound impact” on juries. Id. at *8. Because of the jury antipathy these priors evoke, it is particularly important that a district judge balance the admission of a child molestation prior against the testimony the jury has already heard. Id. at *8. In Judge Smith’s view, the Thornhill panel changed Ninth law (LeMay) with no intervening Supreme Court decision: a Miller v. Gammie faux pas. Id. at *8.

How to Use: Judge N.R. Smith concurred in the affirmance of the conviction, despite the majority’s approach, because he viewed the trial error as harmless. Id. at *9 & n.3 (N.R. Smith, J., concurring). A different fact pattern may have cost the government its conviction, after the premature admission of a sex prior. Id.

  Even Judge Tallman, writing for the majority, concedes that “a more complex case might warrant reserving a final ruling until after testimony has been elicited.” Id. at *6. In the majority opinion Judge Tallman emphasizes the simplicity of the Thornhill trial in an effort to avoid LeMay’s “after testimony” rule. 

  Remember that the LeMay fifth factor still exists, and target Thornhill as ripe for distinction: few trials will ever be as simple as this one-witness, many-stip affair.

                                               

For Further Reading: Lousy rules of sex-crime evidence rely on assumptions about recidivism. Turns out, however, that sex offenders are at a lower risk of general recidivism. “Among violent offenders, the annual recidivism rates of prisoners sentenced for homicide or sexual assault were lower than those sentenced for assault or robbery across the 5-year period.” 

  For this intriguing DOJ study on recidivism, see report here. 

Image of Judge N.R. Smith from https://www.youtube.com/watch?v=NsL1lZjj_vY

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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Case o' The Week: Double Trouble - Joey and Double Counting in Sex Offenses

 Courts can punish a defendant for committing a new crime, after a previous crime that lead to sex registration.

  Courts can punish a defendant for committing a new crime, after a previous crime that lead to sex registration.

   (Double vision maybe: double counting, no).

United States v. Roy Red Joey, 2017 Westlaw 218029 (9th Cir. Jan. 19, 2017), decision available here.

 Players: Decision by Judge Ikuta, joined by Chief Judge Thomas and Judge Bea. Hard fought appeal by D. Arizona AFPD Dan Kaplan.

Facts: Joey was convicted after trial of two counts of abusive sexual contact, in violation of 18 U.S.C. § 2244(a)(5), and two counts of committing a felony with a minor while required to register as a sex offender, under 18 U.S.C. § 2260A. Id. at *1.

  At sentencing, the district court used USSG § 4B1.5 for the § 2244(a) counts – even though Joey had been convicted under § 2260A, which (the defense) contended punishes the same conduct. Id.

  When simplified, this complicated calculation worked as follows: for the two § 2244(a) counts, the sentence was increased to offense level 37 under § 4B1.5 because Joey had been previously convicted of a covered sex crime. Id. at *2. For the § 2260A counts, the court tacked on a decade apiece – required by statute – because the substantive crimes happened while Joey was required to register as a sex offender. Id. at *3.

  The final sentence imposed was a pair of life sentences (imposed concurrently), plus a pair of concurrent ten-year sentences running after – well, running after the life terms. Id. at *3.

  Joey timely objected to the guideline calculation. Id. at *3.

Issue(s): “[A]ccording to Joey, the district court violated the principle against double counting in applying the Guidelines.” Id. at *1. 

  “According to Joey, the district court made a procedural error in applying § 4B1.5 for two reasons: (1) § 2A3.6, and in particular Application Note 3 of that provision, precludes the application of § 4B1.5, and (2) applying § 4B1.5 in determining Joey's sentence under § 2244(a) (5) when he was also being sentenced under § 2260A violated the principle against double counting under the Guidelines.” Id. at *3.

Held: “Because we cannot infer that the Sentencing Commission intended to preclude a § 4B1.5 determination for a § 2244(a)(5) offense when the defendant has also been convicted under § 2260A, we conclude that the district court did not commit a procedural error in calculating the Guidelines sentencing range, and we affirm.” Id. at *1 (fn. omitted).

Of Note: We know of the double-counting bar from the (good) gun rule: Probation can’t twice-hit our clients with the “used . . . in connection with another felony offense” + 4 OL specific offense adjustment in the firearm guideline, and with the mand-mins required by § 924(c). In fact, Judge Ikuta discusses that very example in Joey. Id. at *4.

  Unfortunately, Judge Ikuta also describes what is effectively an inverse rule of lenity: guideline double-counting is o.k, unless expressly prohibited by the Commission. Id. That familiar double-counting ban for gun cases happens to be one of those expressly-barred examples. Id.

  Here, by contrast, Judge Ikuta concludes that the Commission intended to allow cumulative punishment – particularly because § 4B1.5’s increase is tied to a prior sex crime conviction, while § 2260A is tied to a new sex offense while a sex registrant. “Distinct penological goals,” assures the Court. (Though if you’re familiar with guideline sausage-making, this quirk looks suspiciously like a tragic Commission oversight.)

How to Use: It ain’t double counting, assures the Court. But it will feel that way to Joey, who will serve a life sentence (twice!) for the bump for the sex crime, plus a brace of decades for the registration offense. This is a dangerous case: a sex offender with a prior is almost inevitably a sex registrant, so the impact of Joey is a de facto (and dramatic) increase in our clients’ sentencing ranges. If a § 2260A offense is alleged, slog through Joey’s guideline calcs: the client’s exposure is likely higher than you think.  

                                               

For Further Reading: Last week we asked “whither the Ninth, with four new Trump appointees?” This week we ask, “wither the Ninth with a Republican Congress?”

  Asunder, perhaps.

  For a troubling article on the resuscitation of efforts to split the Ninth Circuit, see, GOP Eyes New Push to Break Up California Court, available here. 

Image of “Double Count” from https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhzDE2Xe1Gd49lGzKNKnzzsRh51Dr6lU3MUh_b8KmUxV6sEE99dnhiBq9eFdB-McoWQq1QSRRqgcFjC1WiZrYg1OyF6ksB5YpLtZoJp_ErSJ_bj94_2AlFKucRrr-rn-fKV1iu6/s320/54472_double_count_wharton01f.png

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

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Case o' The Week: If At First You Don't Succeed, Try, Try Again (if you're a P.O. or AUSA) - Post-prison modifications of supervised release

Sentencing is, of course, final. Absent changed conditions, there’s no going back after the jail sentence is done, to get a second bite of the apple and tinker with the terms of supervised release.

  Unless you are the government.

  Or Probation.

  Or both.

United States v. Bainbridge, 2014 WL 878832 (9th Cir. Mar. 6, 2014), decision available here.

Players: Decision by Judge Bea, joined by Justice (Ret.) O’Connor and Judge Tallman. Hard-fought appeal by D. W. Wa. & Idaho Ass’t Federal Defender Matthew Campbell.

Facts: After being convicted for Assault with Intent to Kidnap, Bainbridge was sentenced to 97 months of custody and three years of supervised release. Id. at *1. There were bad facts, involving the rape of a disabled woman in a motor home. Id. 

  Bainbridge served his term, and Probation then petitioned to modify his conditions of supervised release. Id. The government then filed a motion compelling Bainbridge to undergo a sexual deviancy evaluation, to determine whether Probation’s requested conditions were necessary. Id. The district court granted the government’s motion, over the defense objection that the court lacked jurisdiction to change conditions of supervised release absent a change of circumstances and that the changed conditions were unreasonable. Id.

Issue(s): “This case presents two questions: can a district court impose a sexual deviancy evaluation as a condition of supervised release when deviant sexual conduct was not an element of the underlying crime of conviction? If so, is it essential the Government prove a change in circumstances since the original supervised release conditions were imposed, to justify such an additional condition?” Id. at *1.

Held: “We hold that in the circumstances of this case, the sexual deviancy evaluation can be so imposed, without proof of a change in such circumstances.” Id.

Of Note: This is a disappointing and dangerous decision. On appeal, Bainbridge argued that Federal Rule of Criminal Procedure 32.1(c) did not provide the district with jurisdiction to modify the conditions of supervision absent changed circumstances. Id. at *3. NOTE that there was no violation alleged: the Probation office (and the government, riding the P.O.’s coattails), just thought that sexual deviancy evaluation (and forced psych counseling, and polygraph tests) would be a good idea. Id. at *2.

  Does this mean that the government and the Probation Office can forget to add conditions at sentencing, and get a second bite at the supervised release apple later – even with no violation or changed condition? Yep: while “it may be inefficient to omit important conditions and later, upon further reflection, petition the court to incorporate such conditions, the relevant statutes and rules do not prohibit such practice.” Id. at *5 (internal quotations and citation omitted).

How to Use: Does the “law of the case” doctrine prevent a district court from flip-flopping and adding conditions later after release from custody, when no circumstances have changed? 

  It didn’t here. Id. at *5 & n.8. 

  Note, however, that Judge Bea repeatedly notes that the sentencing court in Bainbridge didn’t impose these sex offender conditions at sentencing, but explicitly left it open at sentencing for the Probation Office to return and seek modifications at a later time if additional conditions are something that “needs to be addressed.” Id. “In such circumstances” the law of the case doctrine doesn’t preclude the new conditions – but worth litigating whether the doctrine would preclude these modifications if the sentencing court hadn’t left this door open.

                                               

For Further Reading: What do Senator Rand Paul (and reportedly half the Senate’s Republicans) and Attorney General Eric Holder have in common? They’re fed up with federal mandatory minimum sentencing laws and are itching for reform. For a great piece on an unexpected bipartisan alliance (with discussion of good legislation to come), see Matt Apuzzo, Holder and Republicans Unite to Soften Sentencing Laws, New York Times, Mar. 3, 2014, available here.

Image of “second bite of the apple” album cover from http://www.themusik.altervista.org/testi/second-bite-of-the-apple-dei-beady-eye/3006

Image of Attorney General Holder and Senator Rand Paul from http://www.thenation.com/sites/default/files/holder_paul_img.jpg

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