United States v. Fredrick Pratt ( 2021 )

FILED
NOT FOR PUBLICATION
DEC 15 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-10328
Plaintiff-Appellee, D.C. No.
4:18-cr-02665-JGZ-LAB-1
v.
FREDRICK RONALD PRATT, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Jennifer G. Zipps, District Judge, Presiding
Argued and Submitted November 19, 2021
Phoenix, Arizona
Before: CLIFTON, CALLAHAN, and BRESS, Circuit Judges.
Defendant Fredrick Ronald Pratt appeals his jury conviction and sentence
for one count of knowing access of child pornography in violation of 18 U.S.C.
§ 2252A(a)(5)(B). We affirm the conviction and sentence, but we vacate and
remand the restitution award and one condition of Pratt’s supervised release.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1. Pratt waived his challenges to the jury instruction and the special-verdict
form, and they are thus unreviewable on appeal. See United States v. Lopez, 4 F.4th
706, 732 (9th Cir. 2021). Pratt’s attorney jointly proposed and stipulated to the jury
instructions and the special-verdict form. The bases for the challenges raised now
on appeal (the plain language of the charged statute and a model jury instruction
for a similar statute) were “already on the books” and presumably known to Pratt’s
counsel during trial. United States v. Cain, 130 F.3d 381, 383–84 (9th Cir. 1997)
(finding waiver where defendant’s counsel jointly “proposed the instruction to
which he now objects,” and the basis for his challenge “was already on the
books”). We recently held that “[c]hallenges to the content of trial documents
expressly approved by a defendant with full knowledge of his rights are waived
and cannot support the reversal of a conviction on appeal.” Lopez, 4 F.4th at 732
(defendant waived objection to jury instruction’s omission of an element because
the record showed he was aware of an instruction for a similar violation that
included the element).
2. Alternatively, even if Pratt had not affirmatively waived his objections,
his challenge to the jury instruction fails to show plain error. See Depue, 912 F.3d
at 1232 (“[F]orfeited claims are reviewed for plain error . . . .”). Pratt argues that
the instruction constructively amended the indictment by excluding the statute’s
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“material that contains” language. We disagree. The jury’s finding that Pratt
knowingly accessed the images necessarily implied that Pratt knowingly accessed
the material containing the images. It is exceedingly improbable that the jury
believed Pratt accessed the images but not by access through the laptop. Therefore,
any error did not impact Pratt’s “substantial rights.” Molina-Martinez v. United
States, 136 S. Ct. 1338, 1343 (2016). While there may have been some divergence
between the language of the indictment and the language of the jury instruction, it
did not “seriously affect[] the fairness, integrity or public reputation of judicial
proceedings.” Id. (quoting United States v. Olano, 507 U.S. 725, 736 (1993)).
3. Pratt’s challenges to the special-verdict form likewise fail to meet the
plain-error standard. He challenges only the sentence-enhancement portion of the
form, which asked, “Do you, the jury, further unanimously find beyond a
reasonable doubt that at least one of the visual depictions accessed by the
defendant, Fredrick Ronald Pratt, depicted a pre-pubescent minor or a minor under
the age of twelve?” First, the verdict form did not mislead the jury by improperly
shifting the burden of proof to the defendant. To the contrary, the form required the
jury to decide whether facts triggering an enhancement were proven beyond a
reasonable doubt. Cf. United States v. Espino, 892 F.3d 1048, 1052–53 (9th Cir.
2018) (form requiring the jury to indicate whether defendant was either guilty or
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not guilty beyond a reasonable doubt created a (harmless) burden-shifting error).
Second, the form did not allow the jury to consider images contained on devices
outside the charge of conviction. Here, Pratt stipulated that the image and video
files shown to the jury all depicted actual children under age twelve, and there is no
reason to believe that the jury’s finding on that point was based on images other
than those contained on the laptop. Finally, the form’s failure to require the jury to
find that the images also met the statutory definition of child pornography was not
plain error because that determination was already made earlier by a finding of
“guilty.”
4. The district court did not plainly err in applying a two-level enhancement
under U.S.S.G. § 2G2.2(b)(3)(F) for “knowingly engag[ing] in distribution.” For
this enhancement to apply, the district court had to be persuaded by a
preponderance of the evidence that Pratt knew the uTorrent file-sharing program
he was using would allow others to download child-pornography files from him.
See U.S.S.G. Suppl. To App. C, Amend. 801 (Nov. 1, 2016); see also United States
v. Lawrence, 920 F.3d 331, 337 (5th Cir. 2019); United States v. Budziak, 697 F.3d
1105, 1109–10 (9th Cir. 2012).
The government presented enough evidence at trial and sentencing for the
district court to conclude that Pratt knew of the uTorrent program’s peer-to-peer
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file-sharing capabilities. Even though Pratt initially claimed ignorance about the
ability of other users to access his downloaded files, he admitted to being
knowledgeable about computers generally and to using a software program called
Tor to access the “dark” web, as well as websites like Pirate Bay, a file-sharing
search engine. These admissions, together with other circumstantial evidence in the
record, were enough to support the district court’s finding that Pratt knew of
uTorrent’s file-sharing capabilities. Indeed, evidence of a defendant’s “technical
knowledge and familiarity” with a file-sharing program can be enough to establish
that the defendant “knowingly” distributed child pornography. See Budziak, 697
F.3d at 1109–10.
In addition, a government investigator testified that he was able to download
several-hundred files from the IP address linked to Pratt’s laptop, and that Pratt had
installed and configured the settings for the uTorrent program on his laptop. The
government also presented evidence that the program’s interface used words like
“share ratio” and “upload speed,” which fairly indicated that external file-sharing
was taking place. Accordingly, the two-level enhancement for knowing
distribution of child pornography under U.S.S.G. § 2G2.2(b)(3)(F) was supported
by the preponderance of the evidence, and the district court’s factual findings were
not clearly erroneous.
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5. The district court did not err at sentencing by relying on Pratt’s
knowledge of deleted pictures of his young relative on his laptop because the
images were part of the relevant conduct of the offense. See United States v.
Vanderwerfhorst, 576 F.3d 929, 935 (9th Cir. 2009) (“[A] sentencing judge may
appropriately conduct an inquiry broad in scope, largely unlimited as to the kind of
information he may consider, or the source from which it may come.” (quoting
Nichols v. United States, 511 U.S. 738, 747 (1994)) (internal quotation marks
omitted) (alteration in original)). The district court did not clearly err in attributing
the photos to Pratt under a preponderance standard when they had been deleted
from his laptop and he had been convicted of accessing child pornography using
that laptop.
6. The district court did not err in applying a five-level enhancement for
possession of more than 600 images of child pornography. U.S.S.G.
§ 2G2.2(b)(7)(d). Pratt argues that the district court erroneously deferred to
guidelines commentary advising that each video be treated as 75 images for
purposes of calculating the number of images. See U.S.S.G. App. C, amend 664
(2004). Guidelines commentary “is authoritative unless it violates the Constitution
or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that
guideline.” Stinson v. United States, 508 U.S. 36, 38 (1993). We have continued to
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follow Stinson after Kisor v. Wilkie, 139 S. Ct. 2400, 2414 (2019). See, e.g., United
States v. Cuevas-Lopez, 934 F.3d 1056, 1061 (9th Cir. 2019); United States v.
Crum, 934 F.3d 963, 966 (9th Cir. 2019). Pratt has not shown that the guidelines
commentary violates federal law or is a plainly erroneous reading of the guideline.
Regardless, the applicable guideline is genuinely ambiguous as well. The district
court thus did not plainly err in imposing the five-level enhancement.
7. The district court did not sufficiently explain the factual basis for
imposing the award of $3,000 in restitution to each of five victims, totaling
$15,000. At the time of Pratt’s offense, restitution was mandatory to child
pornography victims in “the full amount of the victim’s losses [caused by the
offense] as determined by the court.” 18 U.S.C. §§ 2259(b)(1), (3) (amended
2018); see also Paroline v. United States, 572 U.S. 434, 459–60 (2014). In 2018,
after Pratt’s offense but before his trial and sentencing, Congress amended the
statute to set a $3,000 per-victim minimum. See Pub. L. 115-299, § 3, 132 Stat.
4384, 4384–85 (2018); 18 U.S.C. § 2259(b)(2)(B) (2018). It is undisputed that the
amendment does not apply retroactively. See 18 U.S.C. § 2259B(d). The record
suggests that the district court used the amendment’s mandatory minimum to
support its determination that each of the five victims should be awarded the same
$3,000 amount. No other explanation was provided by the district court. The
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amount awarded matched what the victims requested, but no explanation was
offered to support that particular sum in the victim impact letters, either. The
district court appears to have applied a mandatory restitution statute that should not
have applied to Pratt. That was plain error. See United States v. Montgomery, 384
F.3d 1050, 1064 (9th Cir. 2004). We vacate the restitution order and remand to
allow the district court to properly calculate restitution under the pre-amendment
law.1
8. Finally, Pratt challenges five conditions of his supervised release. Only
his challenge to special condition 8 has merit. Pratt argues that the condition’s
blanket ban on possessing material depicting sexually explicit conduct involving
children is overbroad. Conditions of supervised release are permissible only if they
“involve no greater deprivation of liberty than is reasonably necessary for the
purposes of supervised release.” United States v. Goddard, 537 F.3d 1087, 1089
(9th Cir. 2008). On its face, special condition 8 may prevent Pratt from
participating in court-mandated sex-offender treatment or from litigating the
propriety of his conviction. See United States v. Cope, 527 F.3d 944, 957–58 (9th
Cir. 2008). Nor is it apparent that the limitation on special condition 8—referring
1
At oral argument, Pratt’s counsel acknowledged that on remand the district
court could impose a higher restitution award, depending on the evidence of each
victim’s losses.
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to materials “deemed inappropriate by your probation officer”—applies to the first
clause concerning sexually explicit conduct involving children. The government
insists a probation officer would not revoke supervised release conditions in those
circumstances, but the government cannot “save a condition by ‘promis[ing] to
enforce it in a narrow manner.’” United States v. Aquino, 794 F.3d 1033, 1037–38
(9th Cir. 2015) (quoting United States v. Soltero, 510 F.3d 858, 867 n.10 (9th Cir.
2007) (alteration in original)).
Amendments to conditions must be made by the district court in the first
instance. Cope, 527 F.3d at 957. We therefore vacate special condition 8 and
remand for the limited purpose of allowing the district court to narrow the
language of the condition. The district court should make clear that the condition
would not subject Pratt to punishment for possessing materials necessary to
litigation—including statutes, caselaw, and other items relevant to bringing a
collateral attack—or for keeping writings and journals required as part of his
mandated sex-offender treatment. See id. at 957. Once amended, the condition will
“readily pass constitutional muster.” Id. at 958.
Besides special condition 8, the district court did not err in imposing the
remaining conditions.
AFFIRMED in part, VACATED in part, and REMANDED.
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