Tuesday, June 25, 2013

Supervised Release Conditions for Sex Offenders Affirmed (Mostly)

United States v. Tang, No. 12-20043 (May 16, 2013) (Jolly, Garza, Owen) (per curiam)
United States v. Ellis, No. 12-10162 (May 20, 2013) (Jolly, Garza, Owen) (per curiam)

This pair of opinions (at first unpublished, and then published on June 21st) confirms what was already pretty obvious: district courts have great discretion in imposing supervised release conditions and, when it comes to sex offenders, almost no condition imposes a greater deprivation of liberty than necessary. Nonetheless, keep on making those objections!

First, we’ll start with the two supervised release conditions that were vacated:
(1) The panel vacated Tang’s Internet ban since Tang’s current and prior offenses did not involve a computer or the Internet and the liberty deprivation was too great. Tang was convicted of failing to register as a sex offender. His underlying conviction was for assault with intent to commit sexual abuse.

(2) The panel vacated Tang’s restriction on dating someone with minor children because the oral pronouncement of sentence said he will not cohabitate with anyone who has children under the age of 18 unless the probation officer approves, but the written judgment also prohibited dating. The district court abused its discretion by including the additional dating restriction that wasn’t part of the oral pronouncement.
Both Tang and Ellis objected to conditions requiring mental health and/or sex offender treatment programs, but the panel affirmed stating that the objections were not ripe because neither defendant had been subjected (yet) to intrusive or objectionable procedures. The proper remedy, the panel concluded, would be to petition the district court for a modification of conditions after Probation mandates an objectionable procedure.

Tang’s restriction on contact with minors was affirmed because it was related to his history and not greater than necessary since he can request permission to have contact with minors.

Other conditions that were affirmed for Ellis, who was convicted of possessing child pornography and who—according to agent testimony at sentencing—allegedly molested his minor nephew:
(1) Restriction on computers and Internet;

(2) Restriction on contact with minors (including by telephone, by internet, through third parties, and access to or loitering by "places where children may frequently congregate");

(3) Restriction on not dating or befriending anyone with minor children without prior permission of the probation officer (since evidence that Ellis used a close relationship to reach children to abuse them);

(4) Ban on sexually-stimulating materials (since Fifth Circuit requires a common-sense application of this condition).
Additionally, with limited reasoning, the panel dismissed as not plain error Ellis’s vagueness challenge to the restriction not to date or "befriend" someone with minor children and Tang’s argument that the district court unconstitutionally delegated its authority to the Probation Office to determine length of treatment and contact with minors.

But don’t despair! Remember that the Fifth Circuit recently vacated a condition prohibiting indirect contact with minors in United States v. Windless.

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