United States v Dunn

Dunn appealed his convictions for various child pornography charges, the restitution order and a term of his supervised release limiting access to computers and eth internet. The panel affirmed in part, reversed in part and remanded. It upheld the distribution conviction holding circuit precedent made placing images in a peer to peer file is sufficient to commit “distribution” and that is all the district court instructed the jury here leaving the jury free to accept or reject the government’s case or Dunn’s defense. The panel accepted the parties’ argument that the convictions for both possession and receipt were duplicative under circuit precedent and remanded the case to vacate one of these convictions. The panel held that the district court plainly erred in imposing the computer restrictions for the whole 25 year term of supervised release which effectively limited Dunn’s opportunity to obtain work as it made no specific finding s the restrictions were minimally restrictive as required by law. The district court was instructed to vacate the restrictions and make proper findings before imposing occupational restrictions as part of the sentence. The panel finally vacated the restitution award as untenable under the recent United states supreme Court Paroline case holding that Dunn cannot be held responsible for all damages to the child victim here and can only be held responsible for the damages his act of posting the two images caused taking into account relevant circumstances such as how many times the images were downloaded and eliminating any liability for the victim’s actual abuse.

Monfore v Phillips

After other defendants settled with Monfore, Philips sought to amend the final pretrial order to allow evidence the settling defendants were negligent. The district court denied his motion. The jury returned a verdict for Monfore. The panel, with one member concurring separately, affirmed. The majority held that the final order was necessary to pare back the claims of the parties to something resembling the true intentions of the parties at trial, that settlement by codefendants in a united front case is usual and foreseeable and Phillips would have required Monfore to prepare an entirely new trial with only a few days’ notice. Thus, there was no abuse of discretion. The concurrence argued the issue was closer than the majority let on given the lack of surprise about what Phillips would do in the event other defendants settled and the examination of Monfore’s own witness on the issue of negligence by other defendants, lack of new discovery and no bad faith. But, given the burden on Phillips to prove abuse of discretion on appeal, the concurrence agreed that there was no abuse on the facts presented.

Luna-Garcia v Holder

Luna-Garcia appealed the order of removal that had been reinstated in her case while participating in reasonable fear proceedings. The panel held that the reinstated order is not final until the reasonable fear proceedings are done because the final rights obligations and legal consequences of the order will not be known until the reasonable fear proceedings are completed and dismissed the appeal. It noted that it joined the 9th Circuit in so holding and that the outcome is consistent with other circuits in analogous circumstances.