United States v. Rusnak, No. 17-10137 (9th Cir. 2020)
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The Ninth Circuit affirmed defendant's conviction for accessing, possessing, and distributing child pornography. The panel held that defendant arguably waived his Franks claim and that any error was not plain. The panel rejected defendant's claim under Wardius v. Oregon, 412 U.S. 470 (1973), where defendant, not the Government, benefited more from the district court's enforcement of the parties' agreement to disclose the identity of testifying witnesses. The panel rejected defendant's remaining evidentiary challenges and held that the district court did not err in denying his motion for a new trial based on prosecutorial misconduct.
The panel also held that the district court did not err, let alone plainly err, in imposing a lifetime term of supervised release. As to the substance of the Special Conditions, the Government concedes that remand is required to conform the written judgment to the oral pronouncement of Special Conditions 2, 3, 4, 5, 6, 7, and 8. So conformed, the Government also concedes Special Conditions 5 and 8 must be vacated and remanded for the district court to reconsider. Finally, the district court's imposition of Special Condition 7, requiring defendant to submit to searches of his property and person by his probation officer, was not an abuse of discretion. The panel remanded for further proceedings.
Court Description: Criminal Law. The panel affirmed a conviction for accessing, possessing, and distributing child pornography; vacated some of the Conditions of Supervised Release; and remanded for further proceedings. The defendant argued that an FBI agent’s trial testimony differed materially from his warrant affidavit, thereby entitling the defendant to suppression of the evidence seized pursuant to the warrant or, in the alternative, a second hearing under Franks v. Delaware, 438 U.S. 154 (1978). The panel held that the defendant arguably waived his Franks claim regarding the agent’s trial testimony, and that any error was not plain. The parties entered into an agreement that required them to disclose the identity of testifying witnesses and provided that any undisclosed witness was potentially subject to exclusion. The defendant claimed that the district court violated Wardius v. Oregon, 412 U.S. 470 (1973), by unequally enforcing the agreement when it limited the trial testimony of the defendant’s wife—whom the defendant did not disclose as a potential witness—while allowing allegedly undisclosed testimony from the FBI agent. Assuming (without deciding) that de novo review applies and that Wardius applies to a district court’s evidentiary decisions, the panel denied relief because the defendant, not the Government, benefited more from the district court’s UNITED STATES V. RUSNAK 3 enforcement of the agreement. The panel wrote that this conclusion forecloses the defendant’s additional arguments that the district court abused its discretion by failing to weigh the defendant’s need for his wife’s testimony prior to excluding it and that the district court erred by imposing a witness exclusion in violation of the Sixth Amendment. The defendant claimed that the district court erred by allowing the Government to admit—in the guise of speaking questions—his wife’s hearsay statements to FBI agents, and that the speaking questions were outside the scope of cross- examination. The panel held that the district court committed plain error by allowing the questions, which were outside the scope of direct examination, and by allowing the out-of-court hearsay statements for their truth under the guise of impeachment. The panel concluded, however, that the errors did not affect the defendant’s substantial rights because the defendant did not show there is a reasonable probability that, but for the errors, the result of the proceeding would have been different. Because the defendant was afforded the opportunity— albeit in a limited fashion—to redirect the defendant’s wife, the panel rejected the defendant’s contention that the Government’s questions combined with the limited redirect violated his Confrontation Clause right to confront his wife about her statements to the FBI agents. Rejecting the defendant’s argument that the district court erred in denying his motion for a new trial because there was prosecutorial misconduct during its rebuttal summation, the panel held that the summation, while toeing the line, was ultimately a fair comment on the state of the evidence; and that the district court’s curative oral instruction, repeated in a written instruction, makes any error harmless. 4 UNITED STATES V. RUSNAK The panel held that the district court did not err, let alone plainly err, in imposing a lifetime term of supervised release. The Government conceded that remand is required to conform the written judgment to the oral pronouncement of Special Conditions of Supervised Release 2, 3, 4, 5, 6, 7, and 8; and that Special Conditions 5 and 8 must be vacated and remanded for the district court to reconsider. The panel held that imposition of Special Condition 7—which, conformed to the oral pronouncement, requires the defendant to submit to searches of his person and property by his probation officer, but does not contain a reasonable suspicion requirement—was not an abuse of discretion or plain error.
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