Wednesday, April 30, 2008

U.S. v. Stoterau, No. 07-50124 (4-29-08). Can mind control be a condition of supervised release. It seems that courts are requiring it in sex cases, especially child pornography, when it comes to supervised release conditions. In this case, defendant plead to transporting child pornography after an investigation and charges revolving around pandering and internet sex photos of an underage boy. The court gave an adjustment for "commission of a sexual act." He received a 151 mos. and 5 years of SR. This was appealed, arguing that it does npt fall within the charge, and the numerous conditions of supervised release, covering sex testing, polygraphs, controls on who he meets, post office boxes, and even receipt of so-called pornography. The 9th (Ikuta joined by Gould and Wallace) affirmed virtually all the sentence. The 9th upheld the adjustment for a sex act because of "relevant conduct." The sentence was also upheld as reasonable and that to the challenge that the reasoning for a Guideline sentence was merely rote, the 9th held that the court fully explained its reasoning under 3553 by mentioning the factors and saying the factors were considered as well as the Guidelines' reasoning seemed appropriate. As for the many conditions of SR, the 9th allowed polygraphing, explaining that Fifth Amendment protections still existed (immunity would have to be given), which leads to the question of whether it really can be used, or whether an invocation of the Fifth would lead to a violation of not undergoing sex therapy. The 9th also upheld Abel testing, despite its Daubert failings because, what the heck, it may help. The 9th also upheld the many conditions on whom and where and what the defendant can do, and get. It did vacate the condition against pornography, because of vagueness. The many conditions imposed are supposedly to help "sex counseling and therapy" but sure do smack of mind control and an obsession with what the defendant might do.

U.S. v. Medina, No. 05-30477 (4-29-08). This is a treatise on the Speedy Trial Act. The defendant, a member of a conspiracy, ducked and weaved through pretrial motions and continuances, and as trial was about to start, a STA violation was argued. The court found 21 days outside the STA limits, and dismissed without prejudice. The court acknowledged that 21 days of detention were a burden, but not enough to warrant dismissal with prejudice. The court also lamented the informal ways things were done, and that undoubtedly entered its calculations. The 9th (Ikuta joined by Gould and Fisher) affirmed. The opinion goes through the STA, mind-numbingly recounts the motions, and finds no abuse of discretion.

Choe v. Torres, No. 06-56634 (4-29-08). The 9th (Kozinski joined by Rawlison and Baer) uphold the extradition of a Korean businessman on one count of bribery of a public official. The 9th vacated one count due to lack of probable cause (the magistrate's order had no finds of facts supporting that count). The 9th also found that the offense -- bribery -- was recognized by both the US and Korea. There was no statute of limitations issue because the petitioner had secretly and illegally fled the jurisdiction.


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