Wednesday, February 23, 2011

U.S. v. Watson, No. 09-50666 (2-23-11) (M. Smith with Rawlinson and Jones, D.J., D, Nev.)
It is well settled that if a defendant on SR takes off, the SR violation petition is tolled. This is the fugitive status tolling of the term. However, if the federal authorities get wind of his whereabouts, then the term starts to run again. Here, the defendant disappeared in 1995 to the wilds of Minnesota and eventually was arrested in Texas in 2009. Did his eleven (11) state arrests in Minnesota alert the feds? No, said the district court, and the 9th agreed. The arrests were all for state charges, and the federal law enforcement or federal courts had no constructive or imputed knowledge. The arrest or knowledge had to be traced to the federal authorities.

U.S. v. Hernandez-Guerrero, No. 10-50096 (2-23-11)(Clifton with McKeown and W. Fletcher). This concerns "dates" and when a 1326 starts counting. The defendant here was convicted of a state crime and deported on June 7, 1995. Upon his arrest in 2009, he said that he re-entered on June 29, 1995. Should his offense start running when he re-entered in 1995, or when he was "found in" in 2009? The difference is that the first (1995) would mean his state conviction counted for criminal history; while the 2009 date would mean that it was stale. The district court used the earlier date. The 9th decides to clarify its precedent on the operative date. The 9th looks at 1326 and notes that it has both re-enter and found in language. The two do not have to be exclusive. The re-entry starts the offense; the found in means that each day can be a new offense (which matters if the law changes and the penalties increase). The 9th makes this distinction, and then says that the context of each case will determine relevancy. As for the date in question, it was the result of the defendant's statement to the immigration officer. It was used in the PSR. Since it was not challenged, the court could rely on it for calculations purposes.

U.S. v. Lynn, No. 09-10242 (2-23-11) (Gould with Schroeder and Thomas). Another child porn case presents two interesting issues. First, arising in a sufficiency of evidence challenge, is whether interstate transportation is satisfied solely if the photos or video could be proved to have been shot in a different state. Second, whether there was double jeopardy here for receipt and possession of the same contraband. This case arose from a Limewire investigation, involving file sharing and swapping. The photos/video were found in the defendant's laptop, having been downloaded into a folder and moved to a "saved" folder. The evidence was that one victim was videoed in Georgia and the other in Washington. The argument, aside from lack of knowledge or intent, was that the video was originally produced on one media (say VHS) and then changed to digital. The transformation had to be proved to have crossed state lines. The 9th rejected this argument, holding that the statute, and congressional intent, was that interstate commenced from point of origin, and that the list of types of media were examples and not limited. As for double jeopardy, the government can charge receipt and possession as two distinct crimes, but the government has to show the factual basis, and the change, or use made of the contraband once it was received, and then possession was of a different nature or media. Getting the contraband and keeping it in a file will not cut it. The leading case is Schales, 546 F.3d at 978. Lastly, the vulnerable victim adjustment was not error given the age of some of the victims (infants and toddlers).


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