Sunday, December 18, 2011

Case o' The Week: Rudd and Residency Restrictions

A slow week in the Ninth lets us reach back to a very good case on residency requirements as conditions of supervised release -- and the sentencing record needed to support such conditions. United States v. Rudd, 2011 WL 5865897 (9th Cir. Nov. 23, 2011), decision available here.

: Decision by Judge Wardlaw (left), joined by Judges Berzon and visiting ND Cal DJ Whyte.

Facts: Rudd, a USAID contractor, had sex with young boys in Bangladesh. Id. at *1. He pleaded guilty to a § 2423(c) count (illegal sexual conduct in foreign places). Id.

Rudd’s Rule 11(c)(1)(C) plea agreement let him appeal any special condition of supervised release. Id. One such condition, recommended by Probation, was that Rudd couldn’t reside within 2,000 feet of – essentially – any placed “used” by minors. Id. Rudd objected in his sentencing memo, but didn’t specifically object at sentencing. Id. The district court imposed the 2,000 feet restriction without elaborating on why the condition was necessary.” Id. at *2.

Issue(s): “[Rudd appeals the district court’s imposition of a residency restriction as a special condition of supervised release . . . .” Id. at *1.

Held: “Because the district court did not provide any explanation for its imposition of the 2,000 foot residency restriction, and none is apparent from the record, the district court committed procedural error. Thus, we vacate the special condition and remand to the district court to explain or reconsider the 2,000 foot residency restriction . . . Id. at *1. “A greater explanation of reasons is particularly necessary for procedural soundness where the district court is choosing among several sentencing options.” Id. at *4.

Of Note: This is a terrific opinion on “procedural reasonableness” at sentencing, and on residency restrictions. It is also, however, a welcome case on plain error review. Id. at *2. Note that Rudd didn’t specifically object at the sentencing hearing, regarding this specific condition. Judge Wardlaw stresses, however, that Rudd objected to Probation’s recommended conditions in his sentencing memo and argued for the conditions reflected in the plea agreement. He also specifically preserved his right to appeal conditions in his plea agreement. Id. Therefore, “it was both unnecessary and futile for Rudd to further object.” Id. Judge Wardlaw accordingly rejects the government’s plain error pitch, in an analysis that should worth adding to an appellate attorney’s quiver.

How to Use: The Court in Rudd is conspicuously skeptical of this (frankly unrealistic) residency restriction, though it doesn’t (yet) get to the “substantive reasonableness” of the condition. Id. at *5. As Judge Wardlaw cautions, “There remain significant questions regarding the substantive reasonableness of residency restrictions, including whether they too stringently restrict where a defendant can reside, or whether they play a role in increasing the likelihood of recidivism . . .” Id. at *6.

Indeed, “[s]everal courts have . . . found that similar residency restrictions subject defendant to a state of ‘constant eviction’ because the prohibited locations could potentially move or open in new places.”
Id. at *6.

Yes, this is only dicta – but forceful dicta – and it merits heavy citation in sentencing memos.

For Further Reading: If you lie about your weight in your Facebook profile, have you committed a federal crime? Judge McKeown wants to know – and the government can’t give her a clear answer.

You’ll recall the regrettable Nosal 3-judge decision criminalized an employee’s unauthorized use of a computer. Blog on original decision here. Happily the case has gone en banc, and was argued on December 15.

It is a fascinating debate, where the judges wrestle with a troubling and expansive theory of criminal liability in the context of an old hacking statute. A video of the en banc argument is available here .

Nosal is a Big Deal for anyone who – well, frankly, for anyone who uses a computer at work. It has the good folks over at the Electronic Frontier Foundation properly riled up. See postings here. Fourth Amendment Guru Prof Kerr is equally spooked by the 3-judge opinion, and hopes the en banc court sides with Nosal. See blog here.

Image of the Honorable Kim Wardlaw from

Image of the Honorable M. Margaret McKeown from

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at



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