First, in United States v. Allen, --- F.4th ---, No. 24-804 (9th Cir. 2025), the Court affirmed Johnathan Allen’s convictions in a case in which he contended that the district court erred by (1) dismissing his original and superseding indictments without prejudice for a violation of the Speedy Trial Act (STA), and (2) admitting unauthenticated documents.
As to the STA issue, the opinion is straightforward. Consistent with existing law, the Court held, "the district court did not abuse its discretion by dismissing the indictments without prejudice."
"In this case, the district court followed the statute and determined that all three factors enumerated in § 3162(a)(2) counseled dismissing Allen’s indictments without prejudice."
The Court also rejected Allen's evidentiary challenges to the admission of Facebook records. It held, "[t]he Facebook records were properly authenticated."
Allen argues that because Facebook does not authenticate the substantive content of its messages (i.e., the discussion of Allen’s drug dealing found in the admitted evidence), the Facebook records were not kept in Facebook’s ordinary course of business as required by Rule 803(6). But the only function of Rule 902(11)—and by extension Rule 803(6) in the authentication context—is to certify that the Facebook records are what the government claims they are (i.e., records from Facebook). The government used Rules 902(11) and 803(6) to authenticate the technical rather than the substantive attributes of the Facebook records.The government separately authenticated the underlying content of the Facebook records through the normal process under Rule 901(a). Under Rule 901(a), “[t]o satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Just to name a few pieces of evidence the government offered: the Facebook profile photograph in the Facebook records matched Allen’s appearance, the user had the same birthday as Allen, and the messages referred to Allen’s drug dealer moniker (“Ghost”) and cell phone number. Fed. R. Evid. 901(b)(4) (permitting authentication based on “appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances”).The Facebook records were thus authenticated under Rules 902(11) and 803(6) as records maintained by Facebook in the regular course of its business. And those records’ underlying content were authenticated under Rule 901(a) through the government’s proffered extrinsic evidence. The Facebook records were fully authenticated and were properly admitted as evidence at Allen’s trial.Admitting the Facebook records also complied with Federal Rules of Evidence 403 and 404(b).
Second, in United States v. Hutton, --- F.4th ---, No. 24-2202 (9th Cir. 2025), the Court affirmed Robert Hutton’s conviction for sexually exploiting a minor in violation of 18 U.S.C. § 2251(a).
"Robert Hutton captured nude images and videos of his 14-year-old stepdaughter through a hidden camera he had placed in the bathroom of his home." "Hutton raises three arguments on appeal. First, the images of the victim are not “lascivious” under the statute. Second, § 2251(a) is unconstitutionally vague as applied to him. And third, the evidence cannot show that he “use[d]” the victim under § 2251(a). Each argument fails."
For the most part, the opinion simply applies previously established Ninth Circuit law. It was probably published to address Hutton's argument "that the Supreme Court effectively overruled our 'use' cases in Dubin v. United States, 599 U.S. 110 (2023)."
The Ninth Circuit was unconvinced:
Dubin’s holding on the meaning of “use” in the context of § 1028A(a)(1) has little direct bearing on this court’s holdings on the meaning of “use” in the context of § 2251(a). Just because Congress codified a given definition in a fraud statute does not mean that it did the same for a child exploitation statute. Even Hutton agrees: “A definition that is appropriate in the aggravated identity theft context isn’t appropriate in the very different context of § 2251(a).At bottom, nothing in Dubin disturbs our precedent interpreting § 2251(a). The presumption under Miller is against overruling circuit precedent: “If we can apply our precedent consistently with that of the higher authority, we must do so.” FTC v. Consumer Def., LLC, 926 F.3d 1208, 1213 (9th Cir. 2019). Even if there were “some tension” between Laursen and Dubin, that would not be enough to treat Laursen and its progeny as effectively overruled. Close v. Sotheby’s, Inc., 894 F.3d 1061, 1073, 1074 (9th Cir. 2018) (“Nothing short of ‘clear irreconcilability’ will do.”). Because Hutton’s reliance on Dubin does not come close to meeting Miller’s “high standard,” Rodriguez v. AT&T Mobility Servs. LLC, 728 F.3d 975, 979 (9th Cir. 2013) (citation omitted), his “uses” argument is foreclosed by our precedent.
Judge Graber also has an interesting concurrence, which begins: "I write separately to state my view that judicial interpretations of 18 U.S.C. § 2251(a) have drifted far from the statutory text. That trend is perhaps understandable because the conduct at issue in cases of this sort is reprehensible and criminal. But by giving an expansive interpretation of a statute that carries a 15-year statutory minimum, we have done work ordinarily assigned to the legislature: deciding which crimes deserve which punishments. Rather than continuing to rely on the Judiciary to stretch the meaning of this statute to cover nearly all deplorable conduct by pedophiles—at increasing risk of the Supreme Court’s overruling our cases—Congress might consider clarifying criminal liability in this area of the law. Clear statutory text would aid prosecutors, courts, and victims."
