The last of Judge Sid Thomas' three most recent opinions, covered on this blog in the past few days, is the shortest: a one-page concurrence (see page 5788). It is also the most recent, filed less than a month ago on April 19, 2010.
In this en banc rehearing, the Ninth Circuit upheld sentencing in a child pornography case. At issue was a prior conviction used to increase the sentence. The defendant argued that the statute under which he was previously convicted was broad enough to include either physical or sexual abuse and that sexual abuse was required to trigger the enhanced sentence in this case.
The government introduced documents to show that the prior conviction was indeed for sexual abuse. The defendant objected to these documents, including an uncertified docket sheet, sex offender registration forms, and a presentence report. The docket sheet noted the conviction and stated that the defendant was a child sex offender, required to register his DNA. The majority held that the docket sheet, though not certified, was reliable, and established a prior sexual abuse conviction. Finding nothing more was required, the majority did not address the other challenged documents.
Judge Thomas concurred in the result, but would not have relied on the docket sheet as "inherently reliable" or "conclusive proof of a prior conviction." He also noted his objection to the registration forms, which the majority declined to consider, and joined part of the dissent in declaring those forms ambiguous and outside the record. Nonetheless, Judge Thomas upheld the sentence, explaining "under the unique circumstances of this case, that the tendered evidence was sufficient." Judge Thomas did not identify those "unique circumstances," but perhaps the presentence report, which he did not discount like the other documents and which explained the charges in detail, played some role, either on its own or as a buttress to the docket sheet.
Because the concurrence is so brief, it is difficult to draw extensive conclusions from it. It does, though, reflect a tension between or tug from both sides. Judge Thomas evaluated the government's evidence with more skepticism than the majority, but ultimately reached the same conclusion. It is curious that Judge Thomas rejected specific evidence, but then did not name specific evidence prompting his decision.