Two interesting cases today.
First, in United States v. Reinhart, --- F.3d ---, No. 16-10409 (9th Cir. 2018) (a government appeal) the Court affirms the district court's conclusion that the defendant's prior, state convictions for child porn offenses do not qualify as sentencing predicates for a federal cp conviction.
The opinion is complicated. But its conclusion provides a good summary: "We hold that 18 U.S.C. § 2252(b)(2)’s reference to offenses 'relating to' child pornography must be read more narrowly due to the statutory text that limits the meaning of 'child pornography' and 'sexually explicit conduct.' See 18 U.S.C. § 2256(2)(A), (8). In accordance with this more narrowed reading of 'relating to,' we apply the categorical approach in determining whether [the defendant's] prior California statutes of conviction trigger the federal sentencing enhancement provision at 18 U.S.C. § 2252(b)(2). Under the categorical approach, we conclude that both California Penal Code § 311.11 and § 311.3 are overbroad compared to the federal statute and indivisible."
The important takeaways:
1. In a federal cp case where the client has a state prior that the government is trying to use as an enhancement, remember the categorical approach applies and the federal definitions are relatively narrow.
2. There is now significant intra- and inter-Circuit tension on this issue. For example, in United States v. Sullivan, 797 F.3d 623, 635 (9th Cir. 2015), the Court held that the term “relating to” in § 2252(b)(2) mandated a broader comparison of the offenses in the federal and state statutes rather than the usual comparison between the elements of the state and federal statutes. This is the exact same section at issue in Reinhart. The Court, however, distinguishes Sullivan: "The case at bar is distinguishable from Sullivan [] because in those cases, the applicable terms were not defined within the same chapter that the terms appeared. Here, we conclude that, applying well-established statutory principles, where there is a federal definition of 'child pornography' in the same statutory chapter as the sentencing enhancement provision at § 2252(b)(2), we apply that definition."
Sounds confusing and it is.
Moving on.
In United States v. Espino, --- F.3d ---, No. 16-50344 (9th Cir. 2018), yet another defendant falls victim to plain-error review:
"Espino appeals and argues that the district court erred as a matter of law in the language used in the verdict form and its subsequent submission to the jury. Espino contends the district court shifted the burden of proof, requiring the jury to find her not guilty beyond a reasonable doubt. We agree that the instruction was erroneous, but we affirm because Espino has not shown that the error was prejudicial."
The Court ends with the following: "Although we find that, in this case, the erroneous verdict form was harmless, we reaffirm that a defendant’s right to be found guilty only upon proof beyond a reasonable doubt is sacrosanct."
