Sunday, September 07, 2014

Case o' The Week: Ten Too High, in Ninth Eyes - Hardrick and Child Pornography, 404(b), and Sentencing

Hon. Stephen Reinhardt

“I do not profess to know the solution to the problem of how to cure the illness that causes otherwise law-abiding people to engage in the viewing of child pornography. I know only that lengthy sentences such as the one in this case, ten years (and below the guidelines at that) for a first offense, cannot be the answer.”
  United States v. Hardrick, 2014 WL 4358467, *6 (9th Cir. Sept. 4, 2014) (Reinhardt, J., concurring), decision available here.

Players: Decision by Judge Murguia, joined by Judges Reinhardt and Noonan. Notable concurrences by Judges Reinhardt and Noonan.

Facts: Agents i.d.’ed two IP addresses in Hardrick’s home associated with child porn. Id. at *1. Two seized computers each contained child porn videos. Id. Hardrick admitted to agents he used Limewire to download porn, but disclaimed knowingly downloading child porn. Id. He went to trial on two counts of knowing receipt. Id. The district court denied Hardrick’s motion to exclude uncharged child porn videos, finding them admissible under FRE 404(b). Id. Two videos were played to the jury: an agent testified that other vids found on both PCs (not admitted) were child porn. Id. at *2. Hardrick was convicted and sentenced ten years. Id. at *3.

Issue(s): “Harrick challenges the admission at his trial of evidence that he possessed other child pornography videos for which he was not charged.” Id. at *1. “Hardrick argues on appeal (1) that the district court abused its discretion in its balancing of the probative value of the uncharged-video evidence against the danger of unfair prejudice to him, and (2) that the district court erred by giving an insufficient limiting instruction on the 404(b) evidence and by failing to give another limiting instruction sua sponte when the 404(b) evidence was admitted into evidence.” Id. at *3.

Held: “The district court’s determination that the probative value of the 404(b) evidence outweighed the danger of unfair prejudice to Harrick was not an abuse of discretion.” Id. “[T]he district court limited the videos’ prejudicial effect by permitting the case agent to provide only ‘brief commentary’ on the location and file names of the other videos and not permitting the government to show the videos to the jury.” Id. “The district court also gave a limiting instruction at the close of the evidence.” Id. “We conclude that the district court properly exercised its discretion when it admitted the evidence of the uncharged child pornography videos found on Hardrick’s computers.” Id. at *4.

Of Note: Judges Reinhardt and Noonan concur, but write separate concurrences to flag the injustice of a ten-year sentence for someone convicted of receiving and viewing child pornography. See id. at *5 (Reinhardt, J., concurring in opinion, opining that psychological treatment rather than long prison sentences may be better approach); id. at *6 (Noonan, J., concurring in opinion, opining that the gov’t should advertise penalties to advance deterrence).
   These concurring judges are in good company: the Sentencing Commission has flagged child porn sentencing as one of its priorities. For the comments of the Federal Defenders on Child Porn sentencing, see letter here. (“The feedback from the courts continues to be loud and clear that guidelines for child pornography offenses are broken.”)

How to Use: Judge Murguia also rejected a challenge to the sufficiency of the evidence. Id. at *5. A gov’t forensic experts had testified that the child porn was downloaded into different locations on the same computer – something a virus or Trojan horse would be unlikely to do. Id. at *5. Location matters – Hardrick worth a close read when considering forensic defenses to these cases.
For Further Reading: What’s up with drug resentencing? Well, while the DOJ has received the names of eligible candidates from the Sentencing Commission, Defenders have not (!?!). The Commission will hopefully distribute names to the defense soon. A reminder on timing: no court can take action on a resentencing until Nov. 1, 2014, and no inmate can be released until Nov. 1, 2015. See USSC Press Release here
    It has been estimated that roughly 100 ND Cal inmates will be eligible for relief on 11/1/15 – although we’re awaiting final figures. For a helpful summary on retroactivity, see the Commission’s primer here.

Image of the Honorable Judge Reinhardt from

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


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