United States v. Kennedy
2011 U.S. App. LEXIS 14155
| 9th Cir. | 2011Background
- Kennedy was convicted by a jury of possession and transportation of child pornography from images found on his laptop.
- Laptops images included 30 active images and approximately 5,000 in deleted cache files.
- Kennedy was indicted on two counts under 18 U.S.C. §§ 2252A(a)(5)(B), 2252(a)(1).
- Five law enforcement officers testified about minors depicted and interstate movement of images; Kennedy had moved to exclude their testimony under Rule 403.
- Kennedy was sentenced after the bench vacated the possession conviction, imposing the transportation conviction with a 60-month term and a 15-year supervised release.
- At a restitution hearing, Amy and Vicky sought substantial damages under § 2259; the district court awarded $17,000 and $48,000 respectively based on $1,000 per image.
- The government sought full restitution or joint liability; the district court found a causal link sufficient to award but later the court vacated and remanded on account of proximate causation and calculation issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether officer-witness testimony was admissible under Rule 403. | Kennedy—Kennedy argues officers’ testimony was prejudicial and cumulative. | Kennedy contends alternative evidence (experts, images) suffices, making officers unnecessary. | No abuse; testimony was probative and not unduly prejudicial. |
| Whether vacating the lesser offense was proper when dual convictions existed. | United States argues no compelling reasons to vacate the greater offense. | Maier framework supports vacating the lesser offense absent unusual circumstances. | District court did not err in vacating possession under § 2252A(a)(5)(B). |
| Whether 15-year supervised release and its conditions were reasonable. | Court should consider need for deterrence and rehabilitation. | Conditions tailored to Kennedy's circumstances were appropriate. | Imposition of 15 years and special conditions affirmed as reasonable. |
| Whether restitution under § 2259 required proximate causation and calculable losses. | Victims' losses should be compensable for harms from Kennedy’s offense. | Proximate causation and precise loss calculation not shown; authority questioned. | Restitution order vacated; proximate-causation and calculability not proven. |
| Whether joint and several liability could fix gaps in causation. | Joint liability could cover losses attributable to multiple offenders. | Requires proven proximate causation by Kennedy; joint liability cannot cure lack of causation. | Not applicable because causation was not proven. |
Key Cases Cited
- Old Chief v. United States, 519 U.S. 172 (U.S. 1997) (balance of probative value vs. prejudice; evidentiary discretion)
- United States v. Ganoe, 538 F.3d 1117 (9th Cir. 2008) (Rule 403; look for alternatives with similar probative value)
- United States v. Maier, 639 F.3d 927 (9th Cir. 2011) (vacating lesser vs greater offense; §3553(a) factors)
- United States v. Salcido, 506 F.3d 729 (9th Cir. 2007) (evidence burden beyond stipulations; probative value)
- United States v. Laney, 189 F.3d 954 (9th Cir. 1999) (proximate causation in §2259; losses must be proximately caused)
- Gamma Tech Indus., Inc. v. Globe Tech, 265 F.3d 928 (9th Cir. 2001) (causal chain must be direct and proximate)
- United States v. Spicer, 57 F.3d 1152 (D.C. Cir. 1995) (proximate causation framework for losses)
- United States v. Peterson, 538 F.3d 1064 (9th Cir. 2008) (proximate cause framework in VWPA/MVRA context)