Saturday, June 21, 2014

Cutting into Paper

By guest blogger AFPD Andy McGowan,

We are usually more concerned about how much time our clients are facing than we are about the conditions of supervision. But, there is no reason not to review the conditions closely to make sure that they are warranted and that they are not too vague. The Seventh Circuit has very recently published a series of cases where they removed or modified several common special conditions of supervision because the facts of the case did not support them or because they were too vague. See United States v. Siegel, 2014 WL 2736016(7th Cir. May 29, 2014), United States v.Baker, 2014 WL 2736016 (7th Cir. June 17, 2014), United States v. Poulin, 745 F.3d 796 (7th Cir. 2014) (remand in child porn case for judge to reconsider ban on unsupervised contact with minors, including son, and prohibition on accessing and possessing adult pornography); and United States v. Shannon, 743F.3d 496 (7th Cir. 2014) (remand to reconsider complete ban on possession of material containing sexually explicit conduct in child porn case).

The conditions in the two most recent cases included a complete ban on possessing anything with nudity in a child abuse case (modified), a prohibition on consuming any “mood altering substances” (modified to include psychoactive substances that impair functioning), a complete ban on drinking alcohol (modified to prohibit excessive use of alcohol), and a ban on contact with a minor, even the defendant’s child (eliminated). By clicking the link below, you can access a bit more analysis of the most recent two cases to give you a flavor of the types of arguments that were successful and why. 

Here's Doug Berman's post on US v. Seigal, calling it a must-read for all federal criminal defense practitioners.

Andy's long(er)-form analysis follows:
More understandable conditions of supervision give our client’s that much more chance of succeeding on supervision, and the fewer the better. In a couple of recent cases from the Seventh Circuit, the court eliminated or clarified several common special conditions of supervised release. These cases include defendants convicted of drug dealing, sexual abuse of a child, and failure to register as a sex offender. The main case, United States v. Siegel, 2014 WL 2736016 (7th Cir. May 29, 2014), combines a critical discussion of the conditions imposed in the sexual abuse case of Siegel with the conditions imposed in the drug case of Norfleet. This case is also a treatise on the entire supervised release process.
            In Siegle’s case, the sentencing judge imposed a ban on his possessing anything legal or illegal that contained nudity, required that he not use any “mood altering substances,” and required that he undergo a sexual offender treatment program. The nudity ban would have prevented him from reading the Bible. The sentencing judge wasn’t worried that the probation office would try to violate somebody for reading the Bible, but the panel was not keen on giving that discretion to the probation office. The panel found that “contains nudity” should be rephrased to read: “material that depicts nudity in a prurient or sexually arousing manner.”
            As for “mood altering substances,” the panel noted that it, because it was neither defined nor was its meaning self-evident, it could include coffee, cigarettes, sugar, and chocolate, among many others, but that none of these had anything to do with recidivist behavior. Instead, the panel suggested a more specific definition that targeted psychoactive substances that impair physical or mental functioning and stating specific substances.
            The panel was also concerned about the requirement that he participate in a sex offender program and the related requirements that he submit to physiological testing, including polygraph testing, and participate in mental health program. The panel called them repetitious and lacking definition. The panel was also concerned because it appeared to give the probation office control over directing which medications the defendant took. It also appeared to make the defendant pay for them but it did not say what would happen if the defendant couldn’t pay for them. The panel instructed the sentencing judge to make the payment requirements clear while avoiding allowing for the possibility of a revocation due to inability to pay.
            In Norfleet’s case, sentencing judge imposed an eight-year term of supervision and prohibited him from excessive use of alcohol and required him to participate in cognitive behavioral therapy. The panel criticized the simple prohibition against “excessive use of alcohol” for being too vague. The panel did not provide specific wording as an alternative, leaving it up to the sentencing judge on remand. But, the panel did provide the judge with different sources that would provide a better definition of “excessive” drinking, including a definition from a brochure that most probation offices have (excessive alcohol use includes binge drinking, heavy drinking, any alcohol use by pregnant women—and heavy drinking by men is 15 drinks or more a week), and the explanations of excessive drinking from a couple of websites. The panel allowed the requirement for cognitive behavioral therapy to remain, but noted that it should specifically say that it could end before the eight years of supervision ended.
            In the other very recent case, United States v. Baker, 2014 WL 2736016 (7th Cir. June 17, 2014), the defendant was convicted of failing to register as a sex offender based on a 1982 conviction for sexual assault. The sentencing judge prohibited him from drinking any alcohol, required him to allow the probation office to monitor his internet use, and prohibited him from having contact with any person under the age of 18, except if supervised and permitted by probation. Defense counsel did not deny that the defendant had abused alcohol and conceded that the facts warranted a prohibition on excessive use of alcohol. But, defense counsel objected to a complete ban because the record did not support a conclusion that he was addicted to alcohol. The panel agreed that some limitation on his use of alcohol was appropriate, but deferred to the sentencing judge on remand to craft the language so that it was consistent with the Siegel restrictions.
            As for the condition allowing the probation office to monitor the defendant’s computer usage and filter certain types of sites, the panel was not convinced that it was appropriate. The government had argued that the condition was appropriate because the defendant had lied on the internet by using an alias on a dating website and moved from Michigan to Illinois (the basis of the failure to register case) based on this relationship. The panel did not agree and eliminated the provision entirely.  
            The sentencing judge had also imposed a prohibition on unsupervised contact with minors, including his own children or family members. Although the government apparently supported this ban in the district court, it abandoned it on appeal. Because there was no evidence that the defendant was a danger to children, the panel eliminated this condition.

            These cases show that there are good arguments that some conditions should not be imposed, and, even if they are imposed, they should at least be understandable. They are not from this circuit, but they are very well reasoned and any court, district or appellate, would be hard-pressed not to agree with their reasoning and their conclusions. They also provide examples of how to look at conditions of supervision to see if they are supported by the record and if they could be modified to make it easier for defendants to comply when they are finally released. There is a local connection with these cases, too: they were litigated by our newest Assistant Federal Defender, Dan Hansmeier, who is now working in our Kansas City office. 

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