Thursday, June 27, 2013

Supreme Court Grants Cert to Resolve Causation Required for Restitution in Child Porn Cases

Paroline v. United States, No. 12-8561 (June 27, 2013)

Is the Government or a victim trying to get your child porn client to pay millions in restitution pursuant to In re Amy Unknown, 701 F.3d 749 (5th Cir. 2012)? Keep on making those objections.

The Supreme Court granted cert to resolve the following question: "What, if any, causal relationship or nexus between the defendant's conduct and the victim's harm or damages must the government or the victim establish in order to recover restitution under 18 U.S.C. §2259."

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Bald, Conclusionary Statement in PSR Insufficient for Bodily-Injury Enhancement

United States v. Zuniga, No. 11-20778 (June 20, 2013) (Elrod, Higginson, Jackson) (per curiam)

Zuniga pled guilty to interference with commerce by means of robbery, amongst other charges. The district court added a two-level enhancement for "causing bodily injury," U.S.S.G. § 2B3.1(b)(3)(A). Guideline commentary defines "bodily injury" as "any significant injury; e.g., an injury that is painful and obvious, or is of a type for which medical attention ordinarily would be sought." Thus, the focus of the inquiry is on the injury sustained not on the defendant’s actions. The only evidence in the PSR supporting this enhancement, however, was "a conclusionary statement that a minor saw ‘one man trample[] over a 15-year-old victim causing her pain in her arm.’" The panel concluded "there is no evidence that the victim sustained any significant injury from being trampled over or what the injury even was." Since the description of bodily injury in the PSR lacked a sufficient indicia of reliability, "Zuniga had no burden to offer rebuttal evidence."

In contrast, the panel affirmed the two-level enhancement pursuant to U.S.S.G. § 3B1.1(c) for Zuniga’s aggravating role as a manager of the crew that committed the robbery. Zuniga objected, since the PSR based this conclusion on statements by co-conspirators, but the district court concluded (and the panel agreed) that these statements had a sufficient indicia of reliability since they corroborated each other and were at least partly corroborated by one of the minor victim’s statements. This placed the burden on Zuniga to present rebuttal evidence to show that those facts were "materially untrue, inaccurate or unreliable," which he did not.

The case was remanded for resentencing.

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Wednesday, June 26, 2013

Pleas and Sentences Vacated Due to Court’s Participation in Plea Negotiations

United States v. Pena, No. 11-50482 cons. w/ 11-50484 (June 18, 2013) (Stewart, Smith, Weiner)

The panel held that a district court’s comments that Pena must resolve a civil matter before the court would accept his plea in the instant criminal cases (relating to bribery of public officials to procure a construction contract) constituted participation in plea negotiations in violation of Federal Rule of Criminal Procedure 11. Even the alternate versions of the court’s comments—either that it would grant full credit for acceptance of responsibility if he resolved the civil matter before his plea or that he should (instead of must) resolve it before the plea—would constitute impermissible participation in plea negotiations. Given the circumstances of this case, the timing of the judicial participation in plea negotiations, and the defendant’s understanding of the court’s condition relating to the civil matter, the court’s later attempts to withdraw any such condition did not remedy the harm done.

In making this determination, the panel reiterated that "Rule 11’s prohibition of judicial involvement [is] a ‘bright line rule’ . . . and ‘an absolute prohibition on all forms of judicial participation in or interference with the plea negotiation process . . . ." While Rule 11 allows the court to "‘explore a plea agreement once disclosed in open court[,] . . . it does not license discussion of a hypothetical agreement that it may prefer.’"

The panel concluded that, first, the "court’s statements connote the possibility that the court had already made a determination as to Pena’s guilt in the instant offenses and preferred a guilty plea."

"Second, the fact that the court made the statements while plea negotiations between Pena and the government were ongoing is crucial: We have noted the distinction between a sentencing court’s comments before the parties have disclosed the terms to the court and the court’s statements after this time."

The panel noted the parties’ disagreement about whether the error had been preserved. However, it found that the court’s error—while not intentional—was plain given circuit law and "Rule 11’s bright-line prohibition of all judicial participation in plea negotiations."

This error also affected Pena’s substantial rights because the court’s comments "amount[ed] to a hypothetical agreement that the court preferred" at a time when no definite plea agreement existed between the parties. Further, the court’s "withdrawal" of the condition to resolve the civil case, as evidenced by the record, "did not alter Pena’s perception of the court’s desired disposition. . . . The record also suggests that, by imposing and then quickly retracting a unilateral condition, the district court unintentionally induced Pena—who might have otherwise continued bargaining—to plead guilty quickly, lest the court change its mind again."

The panel vacated Pena’s guilty pleas and sentences and reassigned his cases to a different district judge on remand.

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Tuesday, June 25, 2013

Supervised Release Conditions for Sex Offenders Affirmed (Mostly)

United States v. Tang, No. 12-20043 (May 16, 2013) (Jolly, Garza, Owen) (per curiam)
United States v. Ellis, No. 12-10162 (May 20, 2013) (Jolly, Garza, Owen) (per curiam)

This pair of opinions (at first unpublished, and then published on June 21st) confirms what was already pretty obvious: district courts have great discretion in imposing supervised release conditions and, when it comes to sex offenders, almost no condition imposes a greater deprivation of liberty than necessary. Nonetheless, keep on making those objections!

First, we’ll start with the two supervised release conditions that were vacated:
(1) The panel vacated Tang’s Internet ban since Tang’s current and prior offenses did not involve a computer or the Internet and the liberty deprivation was too great. Tang was convicted of failing to register as a sex offender. His underlying conviction was for assault with intent to commit sexual abuse.

(2) The panel vacated Tang’s restriction on dating someone with minor children because the oral pronouncement of sentence said he will not cohabitate with anyone who has children under the age of 18 unless the probation officer approves, but the written judgment also prohibited dating. The district court abused its discretion by including the additional dating restriction that wasn’t part of the oral pronouncement.
Both Tang and Ellis objected to conditions requiring mental health and/or sex offender treatment programs, but the panel affirmed stating that the objections were not ripe because neither defendant had been subjected (yet) to intrusive or objectionable procedures. The proper remedy, the panel concluded, would be to petition the district court for a modification of conditions after Probation mandates an objectionable procedure.

Tang’s restriction on contact with minors was affirmed because it was related to his history and not greater than necessary since he can request permission to have contact with minors.

Other conditions that were affirmed for Ellis, who was convicted of possessing child pornography and who—according to agent testimony at sentencing—allegedly molested his minor nephew:
(1) Restriction on computers and Internet;

(2) Restriction on contact with minors (including by telephone, by internet, through third parties, and access to or loitering by "places where children may frequently congregate");

(3) Restriction on not dating or befriending anyone with minor children without prior permission of the probation officer (since evidence that Ellis used a close relationship to reach children to abuse them);

(4) Ban on sexually-stimulating materials (since Fifth Circuit requires a common-sense application of this condition).
Additionally, with limited reasoning, the panel dismissed as not plain error Ellis’s vagueness challenge to the restriction not to date or "befriend" someone with minor children and Tang’s argument that the district court unconstitutionally delegated its authority to the Probation Office to determine length of treatment and contact with minors.

But don’t despair! Remember that the Fifth Circuit recently vacated a condition prohibiting indirect contact with minors in United States v. Windless.

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Monday, June 17, 2013

Cannot Rely on Bare Arrest Records in Sentencing; Prohibiting Indirect Conduct with Minors was Substantively Unreasonable

United States v. Windless, No. 12-60370 (June 12, 2013) (Higginbotham, Owen, Graves)

The panel found reversible error in the district court’s sentencing of Windless, who had failed to register under SORNA. The district court explicitly referenced Windless’ arrest record in sentencing him at the top of the Guidelines and fashioning his conditions of supervised release. Three of these five arrests were "bare" in that they were not accompanied by a description of the alleged conduct. One arrest had a description of conduct suggesting his guilt, and the last arrest had a description of conduct suggesting his innocence. "The district court attempted to justify its reliance by distinguishing between ‘special conditions’ of release and a defendant’s ‘sentence.’" The panel reversed, stating "that distinction is illusory: supervised release and its conditions are part of a defendant’s sentence." The same due process concerns apply to both. "[W]hether ordering a term of imprisonment or conditions of supervised release, a district court may not rely on bare arrest records."

The panel also vacated a special condition of release prohibiting the defendant from having "direct or indirect contact" with a minor "unless accompanied by an adult who has been approved in advance by the probation officer." The panel found this condition to be substantively unreasonable under these circumstances. "[T]o forbid all ‘indirect’ contact works a serious restriction on liberty, making a trip to the grocery store or a place of worship a trip that may end in imprisonment via revocation sentence."

So, keep an eye out for any reliance on bare arrest records or overly broad and unreasonable conditions of supervised release. The Fifth Circuit might just agree with you.

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