United States v. Donald Streich , 617 F. App'x 749 ( 2015 )

FILED
NOT FOR PUBLICATION JUL 13 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-30171
Plaintiff-Appellee, D.C. No. 3:05-cr-05247-RBL-1
v.
MEMORANDUM*
DONALD JAY STREICH,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted July 7, 2015**
Seattle, Washington
Before: NGUYEN and FRIEDLAND, Circuit Judges, and CARNEY,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Cormac J. Carney, United States District Judge for the
Central District of California, sitting by designation.
Defendant-Appellant Donald Jay Streich appeals the district court’s denial of
his post-sentencing motion to amend the presentence report (“PSR”), which was
prepared by the probation office following Streich’s conviction for sexual abuse of
a minor. Streich seeks to remove from the PSR certain details of his prior sexual
abuse of others that he admitted as a juvenile during psychosexual treatment after
receiving a prosecutor’s grant of immunity. Streich filed his motion after the
government filed a petition in the Eastern District of North Carolina seeking to
commit him as a sexually dangerous person pursuant to the Adam Walsh Act, 18
U.S.C. § 4248. After the North Carolina district court entered a judgment ruling
that Streich was not a sexually dangerous person requiring civil commitment, the
district court denied Streich’s motion as moot. This Court reviews a district
court’s determination of mootness de novo. Anaheim Mem’l Hosp. v. Shalala, 130
F.3d 845, 849 (9th Cir. 1997). We affirm.
A federal court does not have jurisdiction to rule on an issue if an event
occurs during the pendency of litigation that renders the issue moot. GTE Cal.,
Inc. v. Fed. Commc’ns Comm’n, 39 F.3d 940, 945 (9th Cir. 1994). A case is
mooted if there is no longer an injury to be redressed. Demery v. Arpaio, 378 F.3d
1020, 1025 (9th Cir. 2004); see also Nw. Envtl. Def. Ctr. v. Gordon, 849 F.2d
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1241, 1244 (9th Cir. 1988) (“The basic question in determining mootness is
whether there is a present controversy as to which effective relief can be granted.”).
The district court did not err in denying Streich’s motion as moot. Streich
sought to strike the psychosexual treatment information from the PSR so that it
would not be considered by the North Carolina district court in the then-pending
civil commitment proceeding. By the time the district court heard the motion,
however, the North Carolina district court had already ruled in Streich’s favor and
denied the civil commitment petition. Since Streich neither suffered nor was being
threatened with the injury of civil commitment based on the PSR, the district court
could not provide him any meaningful relief and, consequently, Streich’s motion
was moot. See Ctr. for Biological Diversity v. Lohn, 511 F.3d 960, 965–66 (9th
Cir. 2007) (environmental organization’s request for order requiring federal agency
to list the Southern Resident killer whale as endangered was mooted by agency’s
subsequent issuance of final rule listing the whale as an endangered species).
Streich asserts that the district court retained jurisdiction to rule on his
motion because of two exceptions to the mootness doctrine: (1) collateral legal
consequences, and (2) wrongs capable of repetition, yet evading review. See
Sibron v. New York, 392 U.S. 40, 53–58 (1968) (holding that the collateral
consequences exception applied because, although the defendants’ primary injury
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of incarceration had expired, their challenge to their convictions was not moot
because secondary injuries, or collateral consequences, resulting from their
convictions remained); Spencer v. Kemna, 523 U.S. 1, 17–18 (1998) (declining to
apply the “capable-of-repetition” exception when there was no reasonable
expectation that the same complaining party would be subject to the same injury
again and when the injury was not so limited in duration such that it is likely
always to become moot before litigation is completed). Neither of these
exceptions, however, apply here. The collateral legal consequences exception does
not apply because Streich has not suffered any secondary or collateral harms from
a court relying on the psychosexual treatment information in the PSR. See Ctr. for
Biological Diversity, 511 F.3d at 965 (declining to apply the collateral legal
consequences exception where the alleged collateral consequences were only
conjectural). The “wrongs capable of repetition yet evading review” exception
also does not apply because Streich was never civilly committed and, therefore, did
not suffer any wrong or injury in the first instance. See, e.g., Murphy v. Hunt, 455
U.S. 478, 482–84 (1982) (declining to apply exception even when the plaintiff had
suffered an initial injury because the possibility of recurring injury was
4
speculative).1 And should the government file another petition to civilly commit
him in the future, Streich will have ample opportunity to fully litigate his objection
to that court’s consideration of the psychosexual treatment information in the PSR
in the jurisdiction in which such civil commitment petition is filed. See Vitek v.
Jones, 445 U.S. 480, 491 (1980) (holding that procedural due process does
guarantee certain protections to civil commitment respondents); 18 U.S.C.
§ 4247(d) (providing the civil commitment respondent with representation by
counsel, and an opportunity to testify, present evidence, subpoena witnesses, and
confront and cross-examine witnesses who appear at the hearing).
Finally, we have no jurisdiction to address Streich’s challenge to the use of
the psychosexual treatment information in the PSR in connection with any
subsequent civil commitment or supervised release proceeding. Any future injury
that Striech might suffer in this regard is simply not ripe now. It is a “classic
example of a ‘contingent future event’ that ‘may not happen at all.’” United States
v. Streich, 560 F.3d 926, 932 (9th Cir.), cert. denied, 558 U.S. 920 (2009); see also
1
To the extent Streich argues that he will suffer a “recurring” injury of civil
commitment, such an injury is highly unlikely in the absence of additional
wrongful behavior by Streich. We have previously observed that “[c]ourts are
reluctant to invoke this doctrine when the possibility of recurrence for the appellant
depends upon his own wrongdoing.” Reimers v. Oregon, 863 F.2d 630, 632 (9th
Cir. 1988) (declining to apply exception where the possibility of recurrence was
dependent on the commission of another crime by the plaintiff).
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United States v. Linares, 921 F.2d 841, 843–44 (9th Cir. 1990) (holding that the
defendant lacked standing to challenge a hypothetical revocation that may never
occur). Streich must wait to challenge the use of the psychosexual treatment
information in the PSR in any such legal proceeding when, if ever, that proceeding
is initiated against him.
AFFIRMED.
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