Sunday, May 06, 2018

Case o' The Week: Ninth Buys Probation's Hard Cell - Misraje and "Bright Line" Prohibitions of Cell Phones on Supervision

 Coffee and cell phones: a dangerous combination.
United States v. Misraje, 2018 WL 1998294 (9th Cir. April 30, 2018), decision available here.

Players: Decision by visiting Maine District Judge Woodcock, joined by Judges Berzon and Bybee. 
  Hard fought appeal by AFPD Jonathan Schneller, C.D. Cal.

Facts: Misraje was on supervised release after a child porn conviction. Id. at *1. One condition prohibited him from possessing or using a computer or computer-related device not disclosed to his PO. Id.
  At a coffee shop, Misraje was handed a smartphone by a friend, and looked at an internet website about public storage facilities. Id. at *3. His PO was at the coffee shop, and took pictures of Misraje holding the phone. Id.
  A Form 12 was filed, an evidentiary hearing held, supervision was revoked, and Misraje got a year and a day in custody. Id. at *2.

Issue(s): “Misraje alleges that merely holding his friend’s cellphone and looking at the screen does not constitute ‘use’ of the phone, and, thus, could not violate the undisclosed-device condition.” Id. at *2.

Held: “The district court did not err in determining that Misraje ‘used’ the smartphone in the coffee shop.” Id. at *3.
  “On the basis of evidence that Misraje actually possessed and used his friend’s smartphone – a device that he had not disclosed to the supervising officer – the district court properly concluded Misraje violated the condition against possession and use of an undisclosed device.” Id.  

Of Note: Bad facts, as the trope goes, make bad law. There is an unfortunate backstory for the Misraje holding reported above.
  Before the coffee shop incident described above, Misraje went to Wal-Mart and used a display computer to tap into a nearby McDonald’s internet connection. Id. at *1. He found child porn using the Wal-Mart computer, took a picture of it on his own phone, and later showed this picture-of-a-porn-picture to a minor. Id. That far more troubling Wal-Mart episode was the subject of a separate Form 12 allegation – and is the conspicuous factual context to the otherwise-innocent coffee shop event.
  Would a Probation Officer have pursued, a district judge have revoked, and the Ninth have affirmed, a violation charge based on an otherwise-innocent coffee shop episode alone? Doubtful, but the die is cast: for child porn clients on supervision, cell phones (however innocent) are strict liability devices.

How to Use: After Misraje, if a friend hands a child porn supervisee a cell phone to look at the Warriors’ score, and the supervisee doesn’t tell his P.O., he has violated what District Judge Woodcock describes as a “bright line prohibition.” Id. at *3. We should worry about this boundless condition, and have a frank talk to our child porn clients about Misraje before they start supervision.
  More importantly, the opinion illustrates that this condition of supervised release merits challenge and some reasonable limitation at the original sentencing (like a more rational definition of the “use” of a computer-related device.)
For Further Reading: For a client convicted of a child pornography offense, the custodial sentence is just part of the long, long punishment that awaits. Conditions of supervised release for sex offenders are onerous, and – as illustrated by Misraje – can be “bright line,” strict liability traps. 
  For a basic overview of supervised release, and the (many) conditions that the Sentencing Commission want imposed, see U.S. Sentencing Commission, Office of General Counsel, “Primer: Supervised Release,” Apr. 2017, available here.
  This Primer makes a point of identifying the mandatory, and recommended, conditions of supervised release for sex offenses. See, e.g., id. at 5.A.1.2 (discussing mandatory conditions of supervised release for sex offenders). 
  A helpful starting point when thinking about how to restore some rationality towards supervision in these emotionally-charged cases.  

Image of “No Cell Phones” mug from

Steven Kalar, Federal Public Defender Northern District of California. Website available at 


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