Monday, May 02, 2011

U.S. v. Nosal, No. 10-10038 (4-28-11) (Trott with O'Scannlain; dissent by Campbell, Senior DJ, Utah). Do employees really read or follow employer's computer use policies? They had better start, because the 9th holds that such an intentional violation could well lead to criminal charges. Oh no, the 9th would say, an innocuous access to certain information, or access without intent, should be enough. We will see. Here, defendants got information from their employer's computer allegedly for the purpose of defrauding the employer and setting up a competing business. This violates the Computer Fraud and Abuse Act, 18 U.S.C. 1030. The statute states that someone who goes beyond set purposes of computer access is considered to have exceeded authorized access and thus violated the statute. This is a broad reading, but the 9th, in LVRC Holdings, LLC v. Bekka, 581 F.3d 1127 (9th Cir. 2009), seemed to interpret the statute as making irrelevant policy usage if the defendant had any access at all. If the defendant had any access, overstepping by itself could not be criminal. The district court in adopting this reading dismissed counts. The government appealed, and argues, successfully, that the overstepping is relevant, it violates the statute's clear language, and that it is a factor for consideration of specific intent. The 9th joins other circuits in using the employer's access policies and computer use policies to show possible intent. If such policies could not be used, what use would they be? The 9th states that if one steps over the use line, one could arguably have violated the statute. Dissenting, Judge Campbell thinks the statute is void for vagueness, and that statutory construction should limit it to those who are barred from any usage, rather than possible policy violation. The statute was written in the new age of computer usage, and the majority's interpretation is unrealistic as to how computer usage has developed at work.

U.S. v. Whitlock, No. 10-30124 (4-28-11) (Fisher with Graber and M. Smith). In a SR case, the 9th holds that post-revocation sentencing recommendations made by the probation office must be disclosed unless the local rules reads otherwise or the district court so orders. However, it is not a due process or equal protection violation if the recommendation is not disclosed by local rule or the court orders it not disclosed so long as the factual determinations and underpinnings are disclosed. Essentially, it would be nice if the recommendations were disclosed, but it is not a constitutional violation if they are not provided there is a local rule or the court orders, and the facts in the report are let out. Here they were, and so the SR revocation sentence is affirmed.

Kemp v. Ryan, No. 08-99030 (Callahan with Rymer and Ikuta). The 9th affirms denial of capital habeas. The petitioner argued that his statements were a result of constitutional violations; that there was insufficient evidence to show the requisite mental state necessary for imposition of the death penalty, and that his constitutional rights were violated by the admission of other bad act evidence, by late disclosure by the state, and by the failure to voir dire on the issue. Under AEDPA's deferential standards, the 9th holds that the Arizona Supreme Court's opinion affirming his conviction and sentence was not an unreasonable application of federal law nor an unreasonable determination of the facts.

U.S. v. Henderson, No. 09-50544 (4-29-11)(B. Fletcher with concurrences by Berzon and Callahan). "We therefore hold that, similar to the crack cocaine Guidelines, district courts may vary from the child pornography Guidelines, 2G2.2, based on policy disagreement with them, and not simply based on an individualized determination that they yield an excessive sentence in a particular case. See Spears, 129 S. Ct. at 843; Kimbrough, 552 U.S. at 109-10." (notes omitted). Opinion at 5613-14. The holding says it all. In this case, the defendant had a horrific abusive childhood and he suffers from extensive mental illness. At sentencing for possession of child porn, the district court was reluctant to accept an argument that he could vary based on a policy disagreement with the Sentencing Commission, instead giving a slight variance for individualized sentencing. On appeal, the 9th goes through the ratcheting up of the child porn Guidelines, concluding that the Guidelines have been extensively revised nine times in during 23 years, and that the revisions by and large have been a result of Congressional mandates and not the result of empirical study. the 9th then goes through the sentencing cases from the Supremes, stressing that sentencing courts have discretion, but that, on appeal for reasonableness, discretion to vary needs less explanation when it is individualized sentencing rather than when it is a policy disagreement with the Guidelines. This goes to appellate review of whether courts can vary simply because they feel that the Commission got the policy wrong. In porn cases, like crack, the policy is wrong. It therefore aligns with Kimbrough in allowing no deference to the Guidelines as sentencing policy statements. A variance from such Guidelines, in crack and here in child porn, is not suspect. Of course, each sentencing is different, and a court must individualize the sentencing. The court must consider all sentencing factors, and the court is not under an obligation to vary on policy grounds if they do not have a disagreement. A court must however consider its power to vary, and it can vary on policy grounds in this case, and in other cases for other crimes if explained. A remand is necessary to allow the court to exercise its discretion. Berzon, concurring, writes to emphasize how odd the Guidelines are in this case and makes no sense from a sentencing perspective. She cites an AFPD's study: Troy Stabenow, "Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines, Jan. 1, 2009 (unpublished comment) (available at (last visited Apr. 19, 2011)." Callahan, concurring, believes a remand is necessary, but does not join the majority in believing that the policy disagreement comes with the Kimbrough policy purview.

Congratulations to AFPD Jim Locklin and FPD Sean Kennedy of the Los Angeles FPD's office.


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