Thursday, June 11, 2015


The new Computer and Internet Monitoring Program (or “CIMP” -- not to be confused with the amusing abbreviation for “simpleton” so often hurdled at the author as a child) is off to a rocky start. The Tenth Circuit, in this week's opinion in US v. Ullman, just stated that the CIMP language authorizing USPO to impose “restrictions and/or prohibitions related to: computer and Internet use,”
standing alone, would impermissibly impose a greater deprivation of liberty than reasonably necessary because it suggests that the Probation Office may completely ban a means of communication that has become a necessary component of modern life.
The court also remarked that such a condition, “standing alone, is unnecessarily ambiguous,” and it “caution[ed] that adjudicating further appeals because of the ‘restrictions and /or prohibitions’ language is not a valuable use of our limited judicial resources.” So the defendant wins, right?

Not so fast. The Tenth Circuit upheld the condition because the district court, in the course of denying the defense objection to the USPO petition to add this condition, had remarked that the defendant “has not been prohibited from using his computer, cell phone, or any other electronic appliance with internet access.” Characterizing this remark as “unambiguous” and “the controlling version of the modified condition,” the Tenth Circuit upheld the modified condition. Does this now mean that the defendant is authorized to use his “computer, cell phone, or any other” Internet device? And should we now be arguing in appropriate cases that district court findings about what has or has not been done in the past may actually be authoritative limiting constructions of orders being challenged?

The Ullmann Court rejected a nondelegation challenge to the condition as well, again relying on the district court’s efforts to reshape the CIMP language, in particular, the district court’s statement confirming that it

retains control over decisions affecting the scope of Ullmann’s punishment, such as whether he can access the Internet, and delegates to the Probation Office only ministerial issues, such as the choice of monitoring software.

Ullmann makes clear that the unadorned CIMP condition is invalid, but it fails to answer many questions. For example, if the CIMP condition is challenged, should the district court replace it with an unambiguous condition or just refer to Ullmann and say this has already been resolved by the Tenth Circuit? Remember that 18 U.S.C. § 3583(f) requires district courts to direct USPO to

provide the defendant with a written statement that sets forth all the conditions to which the term of supervised release subject, and that is sufficiently clear and specific to serve as a guide for the defendant’s conduct and for such supervision as is required.

The CIMP language certainly doesn’t meet this standard, but it’s hard to see how any language in the Ullmann opinion does, either. It will be interesting to see whether USPO comes up with a new policy that actually provides such guidance.

-- Tom Bartee

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