Wednesday, May 02, 2018

US v. Misraje, No. 15-50543 (4-30-18)(Woodcock w/Berzon & Bybee). 

The 9th affirms revocation of supervised release.  The defendant was on SR for a child porn conviction.  One condition required that he possess and use only those computers and computer devices that he had undisclosed to his probation officer.  He allegedly violated this condition by (1) use of a disclosed electronic device on which he had downloaded images via a computer at a Walmart with WiFi from a nearby McDonalds (and he showed images to a young child in a psychologist's office); and (2) looking at a device a friend showed him.  On appeal, he argued that it was unreasonable to allege the first violation as it occurred many months previously (7-8) and thus was too stale.  He also argued that proof of it came via coercive interrogating.  The 9th held that the alleged violation was not too old. The fact that the probation office could have alleged it earlier did not bar its alleging now.  The questioning was not coercive or violating due process as it related to his condition of supervised release.  The police can be deceitful. As for the second violation, although the defendant proved that he was just looking at storage units that his girlfriend had found for him, the 9th still concluded this was still on an undisclosed computer-like device. The ramifications are troubling: if a defendant on SR peers or looks or even glances at someone's smart phone, it could qualify as use of an undisclosed device.  This is concerning.  The 9th reasons that bright-lines are required, and complete prohibitions are necessary.

The decision is here:



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