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November 27, 2006

Intriguing child porn guideline ruling from Ninth Circuit

The Ninth Circuit today in US v. Kuchinski, No. 05-30607 (9th Cir. Nov. 27, 2006) (available here), has an interesting discussion of various post-PROTECT Act sex offender sentencing issues.  Parts of the opinion ought to be especially interesting to computer crime gurus.  Consider these paragraphs toward the end of the opinion:

Where a defendant lacks knowledge about the cache files, and concomitantly lacks access to and control over those files, it is not proper to charge him with possession and control of the child pornography images located in those files, without some other indication of dominion and control over the images.  To do so turns abysmal ignorance into knowledge and a less than valetudinarian grasp into dominion and control....

Kuchinski makes many daedalian arguments about his conviction and sentence. We reject most of them, but we do agree that he was sentenced in error when child pornography images in his cache files, which he neither controlled nor even knew the existence of, were used to calculate his Guideline range.

UPDATE:  Orin Kerr comments on Kuchinski here.

November 27, 2006 at 01:27 PM | Permalink


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Several people have emailed me about this case and there are posts over at Sentencing Law Policy and Volokh Conspiracy on a Ninth Circuit opinion concerning possession of child pornography via a web browser cache. I don't have time to [Read More]

Tracked on Nov 28, 2006 5:39:25 PM


Curious use of "valetudinarian" and "daedalian." I'm glad that the 9th Cir. has a Guidelines Manual and a thesaurus.

Posted by: | Nov 27, 2006 2:19:12 PM

For a second, I thought Judge Selya had sat by designation on the Ninth.

Posted by: | Nov 27, 2006 2:56:59 PM

This is Judge Fernandez. He usually writes like that. His conclusion about the computer cache is correct, but it would have been just as correct in plain English.

Posted by: Kent Scheidegger | Nov 27, 2006 3:00:33 PM

Fernandez' use of "abysmal", while possibly correct, is jarring. "Complete" would have been much better. I think he may have meant "abyssal" vice "abysmal".

Posted by: federalist | Nov 27, 2006 3:35:05 PM

Strangely, nobody is commenting on how this case explains away the possible infirmities with the USSC, holding that the Supreme Court really has endorsed it.

Posted by: S.cotus | Nov 27, 2006 7:37:45 PM

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