Sunday, October 27, 2019

Case o' The Week: Headings and Shoulders Above the Crowd - "Exploitation" predicates for federal child porn offenses

 Brave case of first impression brings intellectually-rigorous analysis to – challenging – sentencing fact pattern.
United States v. Schopp, 938 F.3d 1053 (2019), decision available here.
The Hon. Judge Marsha Berzon

Players: Decision by Judge Berzon, joined by Judges Tashima and W. Fletcher. 
  Big win on issue of first impression for former CD Cal AFPD Myra Sun.  

Facts: Schopp pleaded guilty to production of child porn, pursuant to a plea agreement. Id. at 1057.
  The agreement had an appellate waiver. Id.
  Schopp admitted in the agreement that he had two Alaska state priors relating to the sexual assault and abuse of a minor. Id. (Note that neither state offense involved the production of child porn).
  At sentencing, the parties both urged a sentence of thirty-five years (the mand-min if one of the priors counted as federal “sexual exploitation of children.”) The district court rejected the recommendations and instead sentenced Schopp to life. Id.
  Had the multiple-prior enhancement not been applied (based on the state convictions), Schopp’s range would have been 25 to 50 years. Id.
  Schopp appealed, challenging whether his prior state convictions qualified as federal sexual exploitation predicates.

Issue(s): “Our question is whether the meaning of the term ‘relating to the sexual exploitation of children’ in § 2251’s enhancement provision should reflect the elements of the substantive crimes described in the same “[s]exual exploitation of children” statute.” Id. at 1056. “Under the Taylor categorical approach, we begin by defining the generic federal offense — “sexual exploitation of children.” We have yet to define the offense in a precedential opinion, so this is a matter of first impression.” Id. at 1059.

Held: “We hold that Schopp’s prior Alaska convictions are not offenses ‘relating to the sexual exploitation of children’ under § 2251(e), so the district court improperly applied the sentencing enhancement.” Id. at 1056-57.
  All of the offenses described in § 2251 concern visual depictions of children engaging in sexually explicit conduct, with ‘sexually explicit conduct’ defined in a separate statute . . . . We accordingly hold that the federal generic definition of ‘sexual exploitation of children’ is defined within § 2251 as the production of visual depictions of children engaging in sexually explicit conduct, or put simply, the production of child pornography.Id. at 1061.
  “[W]e hold that Schopp’s prior Alaska convictions are not a categorical match to the generic federal offense of ‘sexual exploitation of children’ and cannot serve as predicate offenses for purposes of the multiple-conviction enhancement under § 2251(e).” Id. at 1063. “[W]e REVERSE Schopp’s sentence and REMAND for resentencing.” Id. at 1069.

Of Note: Schopp is a characteristically thoughtful Berzon opinion. The Judge carefully explains the statutory interpretation that leads the panel to reject the government’s (expansive) “priors” theory. The analysis relies heavily on the section heading for the Section 2251 statute: “sexual exploitation of children.” Id. at 1059.
  Add the Schopp arrow to your “statutory analysis” quiver: if a statute’s section heading is in play, Schopp is the case to consult. See id. at 1060 & n.3.  

How to Use: Schopp is a must-read for any porn-production case with potential priors in play. It is also an intriguing decision for its rejection of the appellate waiver. See id. at 1058. As Judge Berzon explains, “Because Shopp’s appeal goes to the legality of his sentence, it is permitted despite his appeal waiver.” Id.
The Hon. Sentencing Commissioner and
District Judge Charles Breyer
  In NorCal, District Judge (and Sentencing Commissioner) Charles Breyer is (correctly) reading this “illegal sentence” exception into every plea agreement. Really, shouldn’t all plea agreements contain this (required) exception to appellate waivers?
For Further Reading: Last week Judge Danielle Hunsaker, of Oregon, cleared the Senate Judiciary Committee (with relatively little opposition from Democrats). See article here.  Her nomination by President Trump to the Ninth Circuit now awaits a Senate floor vote.
  After her likely confirmation, Judge Hunsaker will hold the seat vacated by Judge O’Scannlain. See article here. 

Image of the Honorable Judge Marsha Berzon from

Image of the Honorable Charles Breyer from

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



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Sunday, October 20, 2019

Case o' The Week: Timing Is(n't) Everything - Thornhill and the Admission of Sex Priors

Hon. Judge N.R. Smith

  “After” means after.
 (Unless it happens before).
United States v. Thornhill, 2019 WL 5152584 (9th Cir. Oct. 15, 2019), decision available here.

Players: Decision by Judge Tallman, joined by Judge Ikuta. 
 Well-reasoned concurrence by Judge N.R. Smith.  

Facts: A call lead the FBI to Thornhill. They found child porn on his phone, and a handwritten list of porn search terms. Id. at *1. He was charged with receipt of child porn and went to trial. Id. 
  Before trial, the government noticed its intent to introduce evidence of Thornhill’s prior state conviction for sexual abuse of a minor (his eleven-year old daughter.). Id. At trial, Thornhill stipulated that the images were actual minors and were produced outside of the state of Alaska, that the phone was his, and that the search-term list was in his handwriting. Id. at *2. Before any witness testified, the district court deemed the prior admissible. Id. at *8-*9 (N.R. Smith, J., concurring). 
  The government called one witness, an agent. The government introduced Thornhill’s prior, and the agent explained the prior had involved Thornhill’s daughter. Id. at *2. 
  Thornhill was convicted after two days of deliberation, and sentenced to 262 months (on a receipt case!) Id. at *2.  

Issue(s): “The question before us is whether the district court abused its discretion when it admitted evidence of Thornhill’s prior Alaska state conviction for sexual abuse of a minor in the second degree.” Id. at *1.

Held: “We conclude that it did not, and we affirm.” Id.

Of Note: This appeal is about the interplay of FRE 414 (permitting evidence of similar crimes in child molestation cases), FRE 403 (the “probative v. prejudicial” balancing test) and United States v. LeMay, 260 F.3d1018 (9th Cir. 2001) (the Ninth’s explanation of how these rules have to interact).
  The 2001 LeMay opinion set out five factors used to determine admissibility. The fifth factor is “the necessity of the evidence beyond the testimonies already offered at trial.” Id. at *3 (emphasis added). But wait -- in Thornhill, the D.J. didn’t wait to hear the testimony offered at trial. Instead, the court ruled that the prior was admissible before any witnesses testified. So how does the majority reconcile the non-discretionary language of LeMay, with the premature admission in Thornhill
  It doesn’t, opines Judge N.R. Smith. 
  In a compelling concurrence, Judge N.R. Smith expresses his “concern” with the majority’s “casual disregard” of the “non-discretionary language” of LeMay. Id. at *7 (N.R. Smith, J., concurring). The concurrence correctly explains that child molestation priors are the easiest for the government to get in, yet they have a “profound impact” on juries. Id. at *8. Because of the jury antipathy these priors evoke, it is particularly important that a district judge balance the admission of a child molestation prior against the testimony the jury has already heard. Id. at *8. In Judge Smith’s view, the Thornhill panel changed Ninth law (LeMay) with no intervening Supreme Court decision: a Miller v. Gammie faux pas. Id. at *8.

How to Use: Judge N.R. Smith concurred in the affirmance of the conviction, despite the majority’s approach, because he viewed the trial error as harmless. Id. at *9 & n.3 (N.R. Smith, J., concurring). A different fact pattern may have cost the government its conviction, after the premature admission of a sex prior. Id.
  Even Judge Tallman, writing for the majority, concedes that “a more complex case might warrant reserving a final ruling until after testimony has been elicited.” Id. at *6. In the majority opinion Judge Tallman emphasizes the simplicity of the Thornhill trial in an effort to avoid LeMay’s “after testimony” rule. 
  Remember that the LeMay fifth factor still exists, and target Thornhill as ripe for distinction: few trials will ever be as simple as this one-witness, many-stip affair.
For Further Reading: Lousy rules of sex-crime evidence rely on assumptions about recidivism. Turns out, however, that sex offenders are at a lower risk of general recidivism. “Among violent offenders, the annual recidivism rates of prisoners sentenced for homicide or sexual assault were lower than those sentenced for assault or robbery across the 5-year period.” 
  For this intriguing DOJ study on recidivism, see report here

Image of Judge N.R. Smith from

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


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Friday, October 18, 2019

US v. Thornhill, No. 18-30046 (10-16-19)(Tallman w/Ikuta; N. Smith concurring). The 9th affirms a conviction for receipt of child porn, holding that the district court did not abuse its discretion in admitting evidence of defendant’s prior Alaska state conviction for sexual abuse of a minor in the second degree. The admission came in under Fed R Evid 414(a) and under the 403 balancing test. It met the US v LeMay, 260 F.3d 1018 (9th Cir 2001) factors, recognize the similarity of the prior acts, the closeness of time, the frequency of prior acts, the presence of lack of intervening circumstances, and the necessity. LeMay recognizes the devastating impact of such evidence. Here, the 9th finds on balance the admission was probative. It went to knowledge and motive. Admission was not outweighed by unfair prejudice. The court evaluated the factors at the start of this short trial (only one witness and many stipulations). The 9th rejects defendant’s argument that admission analysis must occur at the end of testimony or the govt’s case. The 9th finds this inflexible. Courts have discretion to control trials and deciding when to allow admission.

Concurring, N. Smith would require the timing to be at the end of evidence for admission. A court under LeMay must weigh admission in light of the evidence produced and the need. This was not done here. However, any error was harmless.

The decision is here:

Wednesday, October 16, 2019

Floyd v. Filson, No. 14-99012 (10-11-19)(Friedland w/Berzon & Owens). AEDPA deference to the Nevada Supreme Court led to the affirmance of this capital habeas denial. Time after time, the 9th repeated the litany that under AEDPA deference, the state court’s rulings that no constitutional error occurred was not contrary to the Supreme Court case law or an unreasonable application of it. The 9th did find that the prosecutor’s statements about “sending a message” and that the ultimate decision of death lay with others – did not affect the fundamental fairness of the trial.

Brad Levenson and David Anthony, AFPDs in the office of the Nevada FPD (Las Vegas), fought the good fight.

The decision is here:

Sunday, October 13, 2019

Case o' The Week: Ninth's Decision is Clear and Convincing -- Valle and Sentencing Standard of Proof

Hon. Judge Michelle Friedland

  Judge Friedland decides a continuous, ten year, debate. United States v. Valle, 2019 WL 5058604 (9th Cir. Oct. 9, 2019), decision available here.

Players: Decision by Judge Friedland, joined by Judge M. Smith and DJ Bastian. 
  Very nice victory for Deputy Federal Public Defender Brianna Mircheff, C.D. Ca. FPD.   

Facts: In ’98 and 2000, Valle was convicted of drug felonies and removed from the U.S. Id. In 2004, Valle was arrested for a DUI in California, but was not convicted or removed. Id. at *2.
  In 2017, Valle was again arrested by local police, he was charged with illegal reentry, and plead guilty. Id. The guidelines carried additional enhancements if his state drug convictions were within ten and fifteen years “of the start of his illegal reentry offense.” Id.
  Over defense objection, the PSR started the clock at the 2004 DUI arrest, despite the fact that there was no evidence about how many times Valle had departed and reentered the U.S. since that date. Id. This “start date” issue made a 30+ month difference in the guideline range, from the defense’s view of a range of 1-7 months to a PSR-urged term of over three years. Id.
  The government agreed with the PSR, and argued Valle’s previous use of California addresses and his family ties created a sufficient inference to conclude that he had continuously been in the US since 2004. Id. at *3. The district court agreed. Id. The court held as a matter of law that Valle’s continuous presence in the United States was not required [a legal error], and found that under a “preponderance of evidence” standard Valle had continuously been in the US from ‘04. Id. at *3 and *6.
  The court imposed a guideline sentence of 37 months. Id. at *3.

Issue(s): “This appeal requires us to evaluate the Government’s burden of proof in demonstrating the applicability of sentencing enhancements for an illegal reentry crime. Specifically, we consider whether the Government can establish by clear and convincing evidence a non-citizen’s continuous presence in the United States since the alleged time of reentry without submitting any direct evidence of where the non-citizen was for more than a decade.” Id. at *1.

Held: We hold that it cannot. We give some weight to the inference that a non-citizen who had previously returned after being removed and who had family in the United States would have made efforts to stay in the country. But that inference is not enough to carry the Government’s burden here to prove the thirteen years of continuous presence in the United States necessary to support the enhancements applied to . . . Valle’s sentence. We therefore vacate and remand to the district court for resentencing.” Id.
  “[B]ecause it was the Government’s significant burden to prove that Valle was continuously present, and it produced no evidence whatsoever about where he was for over a decade, the district court clearly erred in concluding that the Government had sufficiently proven that he remained in the United States.” Id. at *8.

Of Note: Valle won for now, the Ninth pointed to lower guidelines, but so what? Won’t the government just scrape together evidence of “continuous presence,” for re-sentencing?
  In a great holding, Judge Friedland concludes that because the government “failed to carry its burden despite an extensive factual inquiry below, it is not entitled to “a second bite at the apple.” Id. at *8. (internal citations and quotations omitted). Valle’s new range is 1-7, he’s been in for twenty, so the mandate was ordered transmitted “without delay” for immediate resentencing. Valle “second bite” holding is an interesting arrow for our appellate quivers.

How to Use: The key to this victory is the Ninth’s holding that the government’s sentencing burden was not by a preponderance, but by the higher “clear and convincing” standard. See id. at *4 - *5. In so doing, Judge Friedland carefully distinguishes other “preponderance” decisions. Id. at *5. Her analysis is invaluable for our future “clear and convincing” efforts -- turn to Valle when hunting for a heightened sentencing standard.  
For Further Reading: One out of three federal defendants sentenced last year was convicted of an immigration offense. 

So reports the Sentencing Commission, in its 2018 Annual Report. For a quick summary of the Feds’ new focus, see  article here

Pie chart of federal sentencing in 2018 from 2018 Annual Report and Sourcebook of Federal Sentencing Statistics. , reproduced here:

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


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Friday, October 11, 2019

US v. Valle, No. 18-50199 (10-9-19)(Friedland w/M. Smith & Bastian). In a 1326 sentencing, the district court concluded, as a legal matter, that the government was not required to continuous presence from police contact (2004) and his subsequent arrest in 2017. The court held that there was a strong inference he stayed. Thus, he was eligible for various enhancements.  He received a 37-month sentence (rather than a range of 1 – 7 without enhancements).

On appeal, the 9th found this inference to be error. The gov’t so conceded. The gov’t had to prove presence by clear and convincing evidence. US v. Jordan, 256 F.3d 922 (9th Cir. 2001).  It did not. US v. Garcia-Jimenez, 623 F.3d 936 (9th Cir. 2010). 

Here, the 9th usefully summarizes the factors for the “clear and convincing” standards (Jordan), and the increasing emphasis on the factors of enhancements (4) and length of sentence (doubles). Both were present here. The 9th also does a useful analysis on the types of evidence the gov’t needed to prove presence (Garcia-Jimenez). The 9th discounted the argument that “well, of course the defendant stayed in the US because his of ties, family presence, and where else would he go.”

The 9th vacated the sentence and ordered the mandate to immediately issue because of the guideline range applicable. He had already served 20 months. The 9th barred the gov’t from arguing new evidence because they already had a bite of the apple.

Congrats to Fuller Mircheff of the Cal Central (Los Angeles) FPD.

The decision is here:


Sunday, October 06, 2019

Case o' The Week: Read 'Em or Weep - Becerra and Structural Error

Prominent crim-law jurists tangle over knotty Weaver.

United States v. Becerra, 2019 WL 4582835 (9th Cir. Sept. 23, 2019), decision available here.

Players: Decision by Judge Berzon, joined by ED PA DJ Robreno.
  Dissent by Judge Graber.

Facts: Becerra was tried on drug charges. Id. at *1. At the pretrial conference, the district court explained that it would give the jury written instructions, would confirm that the jury read them, but the DJ would not actually read the instructions aloud unless the instructions later changed. Id. Neither party objected. Id.
  The district court read preliminary instructions to the jurors, but did not read the substantive instructions or explain the elements. Id. at *2. The court later confirmed with each juror that they had read the draft instructions, and – for a few new or modified instructions – the judge read the instructions aloud. Id. at *2. “The district court did not after the close of evidence read aloud any of the remaining twenty-seven instructions, or otherwise orally instruct the jurors as to the substantive law.” Id.
  Becerra was convicted of all counts. Id.

Issue(s): “Becerra [argues] . . . that the district court erred by not reading the jury instructions aloud to the jury. Becerra did not object in the district court . . . . We therefore review the failure to provide an oral jury charge for plain error.” Id. at *3.
  “[The government] recognizes that, as [Guam v. Marquez, 963 F.2d 1311 (9th Cir. 1992)] makes clear, the district court in this case erred by not reading the essential jury instructions aloud. Rather, the government’s central contention is that Marquez is not here binding as to its second holding—that the failure of the district court to read jury instructions aloud to the jurors in open court is structural error and so not subject to harmless error analysis.” Id. at *5.

Held: “[ ] Marquez is binding on us not only with regard to its substantive holding as to the necessity of oral jury instructions but also as to its second holding—that the district court committed structural error by failing to read an oral charge to the jurors.” Id. at *5.
   “A trial court does not satisfy its duty to instruct jurors in a criminal case just by providing those jurors with a set of written instructions to use during deliberations. . . . [A] trial court abdicates its responsibility to charge the jury orally as to the elements of the charged crimes, it commits structural error. . . . We . . . reverse the conviction . . .” Id. at *1 (internal citations omitted).

Of Note: So, District Judges have to read instructions to the jury. To be honest, that’s yesterday’s news – that’s been the clear rule for three decades.
 Far more interesting in Becerra is Judge Berzon’s thoughtful analysis of how to approach structural error.
  Structural error is critically important to protect, well, structural constitutional rights, but has been under increasing attack from the Supreme Court.
  Judge Graber presses this attack, arguing in dissent that this plain error was not structural, and was harmless. Id. at *8 (Graber, J., dissenting, citing Weaver, 137 S.Ct. 1899 (2017)).
  The core issue in Becerra, therefore, is whether SCOTUS decisions after the Ninth’s ’92 Marquez opinion undermined the Ninth’s rule that failure to orally advise the jury is structural error? Id. at *8.
  “Nope,” concludes the majority. Id. at *5.
  Writing for the Court, Judge Berzon carefully describes the case-by-case analysis necessary for structural error – an approach that jives with SCOTUS dictates.
   Appellate folks, this battle is worth a close read: the Berzon v. Graber debate over Weaver sets the stage for future structural error battles to come.

How to Use: Remember Becerra and object when a frazzled DJ wants to skip reading a new jury instruction at the end of a long trial. It is a rare, bright-line rule: written instructions alone won’t cut it.
For Further Reading: Weaver is referenced thirteen times, in Judge Berzon's and Judge Graber's debate. What does that Supreme Court decision mean? 
   For an interesting overview of Justice Kennedy’s opinion, see Prof. Rory Little’s piece here 

Steven Kalar, Federal Public Defender ND Cal. Website at


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