Friday, May 10, 2019
Panel Says Notice of Intent to Impose Restriction on Sex Offender Not Provided; Unswayed by Argument That What Judge Did Was to Change Condition at Last Minute to Be Less Onerous
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday vacated a condition of the 10 years of supervised release, following a 25-year prison sentence, that the defendant, convicted of sexually exploiting a minor, not read or possess adult pornography.
That special condition of probation, the memorandum opinion of a three-judge panel says, was improperly imposed on defendant Ricky Davis without notice.
The panel spurned the contention put forth at oral argument on April 18 in San Francisco by Assistant U.S. Attorney Brian W. Enos that what District Court Judge Anthony W. Ishii of the Eastern District of California did without notice was to soften the condition, to Davis’s benefit.
One Conviction Invalidated
Davis was convicted by a jury in 2015 not only of Count One, sexually exploiting a minor, but also Count Two, attempted sex trafficking of a minor. His conviction on Count Two was reversed by the Ninth Circuit on April 14, 2017, and the matter was remanded for sentencing.
Enos argued that Special Condition 8, relating to possession of pornography, was “more onerous” in the 2015 judgment and the initial 2017 judgment, taking the form of a blanket prohibition on contact with any pornography. He explained that at the time of sentencing in 2017, Ishii announced an intention of permitting Davis to possess such adult pornography as the probation officer permitted, and the judge subsequently amended the judgment to so provide.
The condition originally read:
“The defendant shall not possess, own, use, view, read, or frequent places with material depicting and/or describing sexually explicit conduct, including computer images, pictures, photographs, books, writings, drawings, videos, or video games. ‘Sexually explicit conduct’ as defined in 18 USC 2256(2) means actual or simulated (a) sexual intercourse, including genital-genital, oral-genital, or oral-anal, whether between the same or opposite sex; (b) bestiality; (c) masturbation; (d) sadistic or masochistic abuse; or (e) lascivious exhibition of the genitals or pubic area of any person.”
The amended condition first bars contact with child pornography, and then provides:
“In addition, the defendant shall not possess, own, use, view, or read any material depicting and’or describing sexually explicit conduct involving adults, defined as sexually stimulating depictions of adult sexual conduct that are deemed inappropriate by the defendant’s probation officer, including computer images, pictures, photographs, books, writings, drawings, videos, or video games depicting such conduct. Furthermore, the defendant shall not frequent any place whose primary purpose is to sell, rent, show, display, or give other forms of access to, material depicting and/or describing sexually explicit conduct.”
At oral argument, Circuit Judge Milan D. Smith Jr. said that under that condition, Davis “couldn’t go to the Broad Museum in L.A.” or any other museum without seeing something the condition barred him from viewing.
“Basically, he has to stay home and read comic books—not even all comic books,” he remarked.
Enos reminded him that matter, to be pornographic, must be “sexually stimulating.”
Smith expressed doubt that there is a nexus between Davis’s offense and adult pornography. The assistant U.S. attorney responded that both the 13-year-old female who was the victim in the present case and the 14-year-old female he was convicted of murdering were “post-pubescent.”
He contended that Davis has evinced a “prurient interest in woimen.”
(Davis was on parole at the time of the sexual exploitation.)
Smith said of Special Condition 8:
“Aside from it being vague, I have some questions about its constitutionality.”
However, the opinion leaves it to Ishii to make the initial call on that. It says:
“…Davis was not given appropriate notice of the portion of Special Condition 8, which limited Davis’s access to adult pornography, prior to its imposition….We thus conclude that the district court committed procedural error, and we vacate Special Condition 8 and remand for its reconsideration. Accordingly, we need not address the substantive reasonableness or constitutionality of this condition….On remand, however, Davis should have the opportunity to argue why Special Condition 8 is improper, including whether it is overbroad and infringes on his liberty more than is reasonably necessary to accomplish the relevant goals….”
The panel—composed, in addition to Smith, of Senior Circuit Judge Michael Daly Hawkins and Chief District Court Judge Barbara M. G. Lynn of the Northern District of Texas, sitting by designation—rejected the contention that the 25-year sentence was excessive. The opinion declares that the sentence is “substantively reasonable.”
In 2015, Ishii imposed a 25-year sentence on each of the two counts, to run concurrently.
The case is United States v. Davis, 17-10547.
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