Today's three opinions all address issues that can arise in child-pornography cases.  One defendant wins on a restitution award, another sees a district judge's finding of incompetency to stand trial survive, and a third loses a motion to suppress for violations of the Posse Comitatus Act before an en banc panel of the court.

United States v. Galan, No. 14-30145 (Fernandez with Tashima and Bea) --- The Ninth Circuit vacated a restitution award in a child porn case, holding that the district court erred in failing to limit the amount of the award to the harm proximately caused by the defendant's crimes, as required by the Supreme Court's decision in Paroline v. United States, 134 S. Ct. 1710 (2014).

The defendant here was convicted of possession and distribution of child pornography -- images of a girl known as "Cindy" that were created some eleven years before the defendant in this case collected and distributed them.  The district court was required to impose restitution to compensate for the harms that Cindy suffered, and did so without disaggregating from the award the amount of the restitution award attributable to the harm inflicted by the creator of the original images.  Restitution in this context should be limited to the harm proximately caused by the defendant's actions, which were here limited to viewing and distributing already existing images.  The Supreme Court's decision in Paroline acknowledged that this task might be difficult for sentencing judges, but that nevertheless is the task that Congress gave them. The Ninth Circuit therefore remanded the case for the district court to appropriately limit the restitution award in the first instance.

Although Judge Fernandez doesn't mince his words about his feelings toward those who produce or view child pornography, I didn't spot any words to add to the list of verba obscura in his opinions.

Congratulations to Assistant Federal Public Defender Bryan Lessley of Eugene, Oregon.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2015/11/04/14-30145.pdf

United States v. Kowalczyk, Nos. 14-30198, 14-30219 (Pregerson with N.R. Smith and Owens) --- The Ninth Circuit affirmed an order finding a defendant incompetent to stand trial and committing him to a medical prison for treatment, and remanded the case to the same district judge for further proceedings, after approving the manner in which the district court handled the competency proceedings in this case, which were complicated by the defendant's repeated, largely successful efforts to discharge his counsel.

The defendant in this appeal is charged with producing child pornography. In the first five years that the case was pending, he had eight different lawyers assigned to his case.  He was evaluated by a defense expert who concluded that he was incompetent to stand trial due to irrational paranoia, a mental condition that made him difficult to work with and led him to sue some of his prior lawyers.  On the eve of a scheduled competency hearing, the defendant asked for leave to represent himself, which the district court granted because it found that the defendant had effectively waived his right to counsel through his conduct.  At this competency hearing, the parties' respective experts testified that the defendant was not competent to stand trial.  The district court so found and ordered him committed to a medical prison for treatment and restoration.

A doctor from the medical prison ultimately explained that the defendant was not suffering from a mental illness that would affect his ability to participate in his defense, and so the defendant was returned to the district court for further proceedings.  The government asked for counsel to be appointed for the defendant, which the district court did, but the defendant's plan to file both a lawsuit and a bar complaint against the new lawyer led to that lawyer's withdrawal.  Again the district court scheduled a competency hearing and found that the defendant had, through his actions, waived his right to counsel.  But this time the district court appointed amicus curiae counsel, reasoning that the defendant couldn't fire amicus counsel.  Then the case proceeded to a second competency hearing.

At the second competency hearing, the defendant and amicus counsel both cross-examined the government's doctor.  The defendant himself declined to testify at the hearing, but amicus counsel presented the defendant's parents and the same defense expert from the first competency hearing, and the defendant himself cross-examined the doctor and his father.  The government's doctor testified that the defendant was malingering and did not perform any psychological tests for that reason.  The defense expert testified that the defendant suffered from paranoid schizophrenia with delusions, and that mental illness interfered with his ability to assist counsel.  After the hearing, the district court requested supplemental briefing on how the experts' testimony should affect the competency determination.  Amicus counsel, the government, and the defendant filed briefs.

At a post-hearing oral argument, the district court found that the defendant was probably malingering, but that the government's doctor's methodology was flawed because his opinion that the defendant was malingering was the basis for his decision not to perform any psychological tests.  The district court recommitted the defendant to a different medical prison for evaluation, diagnosis, and restoration.  That order is the subject of this appeal.

The Ninth Circuit first held that a defendant has a constitutional and statutory right to counsel in competency proceedings, and that the district court erred by concluding that the defendant's conduct here accomplished a waiver of that right.  Because of his mental illness, the defendant was incompetent to waive that right through his own actions.  The right to counsel here requires meaningful adversarial testing of the competency issue.  On this record, the court held that amicus counsel's efforts provided meaningful adversarial testing.  Amicus counsel participated in questioning witnesses and filed a lengthy supplemental brief.

The Ninth Circuit then reiterated its prior holding in United States v. Gillenwater, 717 F.3d 1070 (9th Cir. 2013), that a defendant has a right to testify at a competency hearing. But it held that the defendant here was not denied that right because he was an active participant in the hearing and cross-examined witnesses.  Moreover, he had an "ample opportunity" to testify if he so chose.

The Ninth Circuit finally held that 18 U.S.C. § 4241 allows for multiple competency hearings, and remanded the case to the same district judge for further proceedings.

Kudos to Chief Deputy Federal Public Defender Steve Sady of Portland, Oregon, for his zealous advocacy in this case.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2015/11/04/14-30198.pdf

United States v. Dreyer, No. 13-30077 (Christen for the en banc panel; concurring opinions by Berzon, Reinhardt, Owens, and Silverman) --- An en banc panel of the Ninth Circuit affirmed the denial of a defendant's motion to suppress, holding that while the participation of military police in a civilian criminal investigation violated the Posse Comitatus Act, suppression was not the proper remedy on these facts.  The en banc panel remanded the case to a three-judge panel for further proceedings.

This child-pornography prosecution arose when investigators for the Naval Criminal Investigative Service, who were monitoring a peer-to-peer file-sharing service, alerted local police that the defendant, who was not a member of the military, had child pornography images on his computer.  He was charged in federal court, and moved to suppress the evidence seized from his computer by local police on the ground that the seizure violated the Posse Comitatus Act, 18 U.S.C. § 1385, which generally prohibits the use of military agents to conduct civilian law enforcement activities.  He went to trial and was convicted and sentenced to 18 years in prison.  A three-judge panel reversed the conviction, finding a violation of the Posse Comitatus Act and that the evidence resulting from the violation should be suppressed.  The Ninth Circuit then voted to rehear the case en banc, and an 11-judge panel was convened to rehear the case.

The Ninth Circuit described the history of the Posse Comitatus Act and noted that it had previously held in United States v. Chon, 210 F.3d 990 (9th Cir. 2000), that the Act applies to the Navy.  The government argued that subsequent legal developments showed that the Act no longer applied to the Navy, but the panel rejected those arguments and reaffirmed its holding in Chon.  Then it concluded that the NCIS investigation here violated the Act.  NCIS was not investigating any violation of the Uniform Code of Military Justice, but instead providing evidence to assist local police in a local law-enforcement activity targeted at a civilian.  Indeed, the investigation was targeted mainly at computers owned by civilians, as its lead investigator freely admitted in open court.  The court attributed this error to "institutional confusion about the scope and contours of the PCA," and faulted the investigator for failing to heed the limitations on his activities imposed by the Posse Comitatus Act.

Nevertheless, the court held that suppression of the evidence was not warranted here.  It rejected the defendant's argument that the government had waived the suppression issue by failing to argue it until it filed its petition for rehearing, because a dissenting member of the panel addressed it, the defendant had the opportunity to do so in supplemental briefing and thus did not suffer prejudice, and the interests of justice in preventing recurring violations of the Posse Comitatus Act required discussion of the suppression issue.  Because the overbroad scope of the investigation was the result of institutional confusion, "we are persuaded that the Government should have the opportunity to self-correct before we resort to the exclusionary rule" as a means of deterring violations of the Act.  (The defendant apparently has not argued that there was a Fourth Amendment violation here.)  The court therefore affirmed the denial of the defendant's motion to suppress, and remanded the remaining issues to a three-judge panel.

Judge Berzon, who wrote the three-judge-panel opinion that ordered suppression, explained that she was "comfortable" with the en banc panel's holding because she was satisfied by statements at oral argument that the violation that occurred in this case would not occur again.

Judge Reinhardt agreed with Judge Berzon.

Judge Owens, joined by Judges Silverman and Callahan, would have held that suppression is never an available remedy for a violation of the Posse Comitatus Act.

Judge Silverman saw nothing wrong with the investigation in this case, because he believed the lead investigator's testimony indicated that he was looking only for members of the military who were collecting or distributing child pornography over the network.

Kudos to CJA panelist and former Assistant Federal Public Defender Erik Levin for a hard-fought battle.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2015/11/04/13-30077.pdf