United States v. Vallejos, 742 F.3d 902 (9th Cir.), February 2014

Facts: Very similar to the facts as Baldwin (above).  Defendant also confessed in both audio and video recordings to the police.   This appeal is based on 2 level sentence enhancement for “simple distribution,” as well as an attack on the judge’s ruling regarding Appellant’s confession.

Attack on Rule of Completeness:  At trial the Government admitted a redacted version of Defendant’s statement.  Arguing F.R.E. 106 (Doctrine of Completeness), the Defense asked the Judge to play the entire statement.  The portions the Defendant wanted related to his church, his previous prison term, and his drug history.  The Judge denied the motion.

Standard of Review: “We review the district court’s decision on the Rule of Completeness for an abuse of discretion. See United States v. Collicott, 92 F.3d 973, 983 (9th Cir.1996). We review de novo whether possession is a lesser-included offense of receipt, but we review for an abuse of discretion the district court’s decision not to instruct the jury on possession. See United States v. Rivera–Alonzo, 584 F.3d 829, 832 (9th Cir.2009). We review the district court’s interpretation of the Sentencing Guidelines de novo, its application of the Guidelines to the facts of the case for an abuse of discretion, and its factual findings for clear error. See United States v. Jennings, 711 F.3d 1144, 1146 (9th Cir.2013).”

Law and Analysis: If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part—or any other writing or recorded statement—that in fairness ought to be considered at the same time. “The Rule does not, however, require the introduction of any unedited writing or statement merely because an adverse party has introduced an edited version. Rather, ‘it is often perfectly proper to admit segments of prior testimony without including everything, and adverse parties are not entitled to offer additional segments just because they are there and the proponent has not offered them.’” U.S. Collicott, 92 F.3d at 983 (9th Cir. 1996) “In other words, if the ‘complete statement [does] not serve to correct a misleading impression’ in the edited statement that is created by taking something out of context, the Rule of Completeness will not be applied to admit the full statement.” Id.

 Holding:  The trial judge did not abuse his discretion when he denied the motion, holding that the redacted portions may be relevant to “sympathy or sentencing” but they did nothing to correct any “misleading” portion of the redacted version.

Attack on the Enhancement: Appellant argued that he had no intent to distribute the CP, so his sentence should have been calculated based on the guidelines for receipt, not the two level enhancement for simple distribution.

Law and Analysis:  After a recitation of the split among the circuits, the court held “[f]ollowing at least eight of our sister circuits, we hold that the knowing use of a file-sharing program to download child pornography involves not merely the receipt of illicit material, but also the reciprocal distribution of it. We therefore conclude that the district court properly applied a two-level distribution enhancement under U.S.S.G. § 2G2.2(b)(3)(F) to Vallejos, who used a file-sharing program to download child pornography that, whether knowingly or unknowingly, allowed others access to those files.”

Practitioner Note:  Some circuits are holding that using P2P software to receive CP is automatically enough for distribution (regardless if anyone actually downloads).  It’s important to know where your circuit falls, in case you need to follow the steps outlined in Baldwin).

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