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United States v. Sullivan

United States Court of Appeals, Ninth Circuit

July 29, 2015

EDWARD LEE SULLIVAN, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellant,
EDWARD LEE SULLIVAN, Defendant-Appellee

Argued and Submitted, January 14, 2014

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Northern District of California. D.C. No. 4:09-cr-00167-DLJ-1. D. Lowell Jensen, Senior District Judge, Presiding.


Criminal Law

The panel withdrew an opinion filed on May 28, 2014, and filed a superseding opinion affirming in part and reversing in part a criminal judgment, and remanding, in a case in which the defendant was convicted under 18 U.S.C. § § 2251(a) and 2252(a)(4)(B) for producing and possessing a sexually explicit video depicting a 14-year-old girl. The panel held that venue in the Northern District of California for the production count was not improper, and that National Federation of Independent Business v. Sebelius, 132 S.Ct. 2566, 183 L.Ed.2d 450 (2012), does not undermine this court's precedent that Congress may regulate even purely intrastate production of child pornography and criminalize its intrastate possession.

The panel held that the district court did not err in denying the defendant's motion to suppress evidence obtained from his laptop computer. Balancing the nature of the intrusion into the defendant's possessory interests against the government's interests justifying the intrusion, the panel concluded that the government's seizure and retention of the laptop for 21 days before obtaining a search warrant was, under the totality of the circumstances, not unreasonable under the Fourth Amendment.

The panel held that violations of Cal. Penal Code § 261.5(d) (unlawful sexual intercourse with a minor under 16 years of age) and Cal. Penal Code § 288a(b)(2) (oral copulation with a minor under 16 years of age) are categorically offenses " relating to" aggravated sexual abuse, sexual abuse or abusive sexual conduct involving a minor or ward, and that the district court therefore properly applied the mandatory minimum sentence enhancement provisions contained in 18 U.S.C. § § 2251(e) and § 2252(b)(2). Reading together Morales v. Trans World Airlines, Inc., 504 U.S. 374, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992), and Mellouli v. Lynch, 135 S.Ct. 1980, 192 L.Ed.2d 60 (2015), the panel interpreted the phrase " relating to" broadly when applying the Taylor categorical approach unless the text and history of the statute require a narrower construction, which it concluded is not the case with § § 2251(e) or 2252(b)(2).

On the government's cross-appeal, the panel held that the district court erred in its legal analysis when sustaining the defendant's objection to the inclusion of a two-level enhancement for obstruction of justice under U.S.S.G. § 3C1.1. The panel remanded for resentencing because it could not tell if the district court would impose the same sentence if it applied the correct legal analysis.

John J. Jordan, San Francisco, California, for Defendant-Appellant/Cross-Appellee.

Anne Voigts (argued), Assistant United States Attorney; Melinda Haag, United States Attorney; Barbara J. Valliere, Assistant United States Attorney, Chief, Appellate Division, San Francisco, California, for Plaintiff-Appellee/Cross-Appellant.

Sean Kennedy, Federal Public Defender; Koren Bell, Deputy Federal Public Defender, Los Angeles, California, for Amicus Curiae Federal Public Defender for the Central District of California.

Before: Richard C. Tallman and Sandra S. Ikuta, Circuit Judges, and Beverly Reid O'Connell, District Judge.[*] Opinion by Judge Ikuta.


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IKUTA, Circuit Judge

Edward Sullivan was convicted of violations under 18 U.S.C. § § 2251(a) and 2252(a)(4)(B) for producing and possessing a sexually explicit video depicting a 14-year-old girl. He raises multiple challenges to these convictions, as well as to the mandatory minimum sentences imposed under 18 U.S.C. § § 2251(e) and 2252(b)(2). The government cross appeals, arguing that the district court miscalculated Sullivan's Sentencing Guidelines range. We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and affirm in part and reverse in part.[1]


Sullivan's use of 14-year-old Erika Doe to produce the sexually explicit video at issue in this case was not the first time he engaged in sex-related conduct with a minor. In 2001, Sullivan was convicted in Nevada of conspiracy to commit pandering involving a 13-year-old girl. In 2002, Sullivan was convicted in California of four offenses involving a 14-year-old female

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victim: (1) unlawful sexual intercourse with a minor in violation of California Penal Code § 261.5(d); (2) oral copulation with a minor in violation of California Penal Code § 288a(b)(2); (3) pimping in violation of California Penal Code § 266h(a); and (4) pandering in violation of California Penal Code § 266i(a)(2). Sullivan was sentenced to 140 months imprisonment for the California convictions.

In November 2007, Sullivan was released on parole. As a parolee, Sullivan was subject to a range of standard and special parole conditions. Among the standard parole conditions was a consent to search, which stated: " You and your residence and any property under your control may be searched without a warrant by an agent of the Department of Corrections or any law enforcement officer." In addition, Sullivan was subject to a number of special parole conditions, which (among other things) prohibited him from having any contact with females between the ages of 14 and 18 years, and provided that " [a]ny computer or mobile telecommunications device under your control, or [to] which you have access, is subject to search and seizure by your Parole Agent." The California Department of Corrections gave Sullivan notice of these conditions, which Sullivan acknowledged by signing the notice form and initialing each of the special conditions.

Sullivan took up temporary residence at the Bay Breeze Inn located in Oakland, California. In March 2008, about four months after his release, Sullivan approached Erika, a 14-year-old girl who was standing on a street in Berkeley, California, with her friends after school. After Erika and Sullivan talked, she left with Sullivan in his car. Erika stayed with Sullivan for the next two weeks. On the first night, Sullivan took Erika to the house of Kimberlea Reed, a friend of his who lived in Vacaville, California. Reed knew that Sullivan was not allowed to have contact with minor girls, and when Erika failed to produce a license proving she was 18 years old, Reed told Sullivan not to bring Erika to her home. For the next two weeks, Sullivan and Erika stayed at the Bay Breeze Inn or in Sullivan's car, but returned at least once to the house in Vacaville. While at the Bay Breeze Inn, Sullivan had sex with Erika.

The district court found that during this period, Sullivan became the dominating force in Erika's life, and controlled all of her daily activities. Among other things, Sullivan replaced Erika's clothing with more adult and sophisticated outfits and paid to have her hair straightened and amplified with extensions. Erika testified that she was afraid of Sullivan, a large man in his forties, about six feet five inches tall and 250 pounds.

Over the course of the two weeks that Erika remained with Sullivan, he took numerous videos and still photographs of Erika in various poses. In several of the videos, Sullivan discussed prostitution with Erika. In one video, Sullivan discussed a past incident where he had " checked" or punished Erika because she had tried to leave him. Sullivan uploaded one of the still photographs of Erika onto an adult website, " Fungirlsplay," using his name and e-mail address.

On March 9, 2008, Sullivan returned to the house in Vacaville where he made the sex video at issue in this case using a digital camera that had been manufactured in China and exported to the United States. According to the district court, the video,, showed Erika performing oral sex on Sullivan. Erika's face was clearly visible in the video, and a man's voice could be heard in the background, directing and describing the activities that were taking place. At trial, Erika

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testified that Sullivan had shot and narrated the video, and is also the man seen in the video. This sex video was later uploaded to Sullivan's laptop computer. After the video was produced, Sullivan recorded and narrated two other videos, one of which showed Erika naked from the waist up, and the other ...

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