United States v. Casey Dill ( 2020 )

19-268-cr
United States v. Casey Dill
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A
PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED
BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 6th day of August, two thousand twenty.
PRESENT: ROBERT D. SACK,
DENNY CHIN,
JOSEPH F. BIANCO,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
-v- 19-268-cr
CASEY DILL,
Defendant-Appellant.
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FOR APPELLEE: TIFFANY H. LEE, Assistant United
States Attorney, for James P. Kennedy,
Jr., United States Attorney for the
Western District of New York,
Rochester, New York.
FOR DEFENDANT-APPELLANT: JAY S. OVSIOVITCH, Assistant Federal
Public Defender, for Marianne Mariano,
Federal Public Defender for the Western
District of New York, Rochester, New
York.
Appeal from the United States District Court for the Western District of
New York (Wolford, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Defendant-appellant Casey Dill appeals from a judgment of the district
court entered January 22, 2019 convicting him, following a guilty plea, of one count of
possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), and
sentencing him principally to 48 months' imprisonment and ten years of supervised
release with special conditions of supervision. Dill challenges three special conditions
of his supervised release: (1) the probation officer's supervision of his mental health and
sex offender treatment programs; (2) aspects of the requirement that he submit to
computer monitoring; and (3) the notification of risk condition (as revised by the
standing order issued by the Western District of New York) permitting the probation
officer to require Dill to notify third parties about the risk of additional criminal
conduct. 1 Specifically, Dill argues that the conditions improperly delegate the district
1 The judgment entered on January 11, 2019 contained the then-standard notification of
risk provision. On January 25, 2019, this Court held that this standard notification of risk
condition was too vague and afforded too much discretion to the probation officer. See United
States v. Boles, 914 F.3d 95, 111-12 (2d Cir. 2019). On March 22, 2019, the Western District of
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court's authority to the probation officer. We assume the parties' familiarity with the
underlying facts, procedural history, and issues on appeal.
We review a district court's imposition of conditions of supervised release
for abuse of discretion. See United States v. Boles, 914 F.3d 95, 111 (2d Cir. 2019). "When
a challenge to a condition of supervised release presents an issue of law, however, we
review the imposition of that condition de novo, bearing in mind that any error of law
necessarily constitutes an abuse of discretion." Id. (internal quotation marks omitted).
Where an objection was not raised in the district court, we review for plain error. See
United States v. Hendricks, 921 F.3d 320, 326 (2d Cir. 2019). We may use our discretion to
correct the unpreserved error "only where the appellant demonstrates that (1) there is
an error; (2) the error is clear or obvious . . . ; (3) the error affected the appellant's
substantial rights . . . ; and (4) the error seriously affects the fairness, integrity or public
reputation of the judicial proceedings." United States v. Gasperini, 894 F.3d 482, 487 (2d
Cir. 2018) (internal quotation marks and alterations omitted). At sentencing, Dill
challenged the condition relating to supervision of his treatment, and so we review this
challenge for abuse of discretion. See Boles, 914 F.3d at 111. Because Dill failed to
challenge the other conditions in the district court, however, we review them for plain
error. See Hendricks, 921 F.3d at 326. We consider each challenge in turn.
New York issued an order "amend[ing] the Judgment and Commitment order in all criminal
cases in which a term of probation or supervised release is imposed by removing the standard
‘risk’ condition and replacing it" with revised language. Appellant's Br. at 49.
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I. Supervision of Dill's Mental Health and Sex Offender Treatment
"The power to impose special conditions of supervised release . . . is
vested exclusively in the district court." United States v. Matta, 777 F.3d 116, 122 (2d Cir.
2015). While the "district court may not delegate to the Probation Department
decisionmaking authority which would make a defendant's liberty itself contingent on a
probation officer's exercise of discretion," it "may delegate to a probation officer
decisionmaking authority over certain minor details of supervised release -- for
example, the selection of a therapy provider or treatment schedule." Id.Further, an individual on supervised release has a "diminished
expectation of privacy." United States v. Reyes, 283 F.3d 446, 471 (2d Cir. 2002). We have
held that a waiver of therapeutic confidentiality permitting a probation officer access to
a defendant's mental health treatment records "well may advance [a defendant's]
treatment," could "reasonably further public safety," and is not an abuse of discretion.
United States v. Dupes, 513 F.3d 338, 344-45 (2d Cir. 2008).
Dill argues that the condition providing that "[t]he probation officer will
supervise the details of any testing and treatment, including the selection of a provider
and schedule," is an improper delegation of the district court's authority because it gives
the probation officer unfettered discretion in supervising his treatment. J. App'x at 94.
We are unpersuaded. Entrusting a probation officer with authority to oversee "minor
details" of supervised release, including selecting the "therapy provider" and setting the
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"treatment schedule," is not an improper delegation. Matta, 777 F.3d at 122; see also
United States v. Young, 910 F.3d 665, 671-72 (2d Cir. 2018) (holding no improper
delegation where district court unambiguously holds that treatment is mandatory but
leaves details of treatment to discretion of Probation Department).
Dill further argues that permitting the probation officer to "access his
treatment records" violates his privacy interests in his treatment and treatment records. 2
Appellant's Br. at 17. The argument fails. We have previously upheld a condition of
supervised release requiring a defendant to waive confidentiality of records relating to
his sex offender treatment in the interest of public safety. See Dupes, 513 F.3d at 344-45.
As in Dupes, here we do not find that allowing a probation officer access to records
"seriously affect[s] the fairness, integrity or public reputation of the judicial
proceedings." Id. at 345. Accordingly, we find that the district court did not abuse its
discretion when it imposed the condition authorizing the probation officer to "supervise
the details" of Dill's treatment. J. App'x at 94.
II. Computer Monitoring
Dill argues that the special condition imposing monitoring requirements
on his computer usage is an improper delegation of the district court's authority,
2 In passing, the district court seemed to say that the probation officer could attend Dill's
therapy sessions. The district court appeared, however, to be entertaining the notion as a
hypothetical matter and, in any event it did not include in the written judgment authorization
for the probation officer to attend Dill's therapy sessions. We do not construe the judgment as
authorizing the probation officer to do so.
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making his liberty contingent on the probation officer's exercise of discretion, as well as
an infringement of his First Amendment rights. We disagree.
While we have held that "citizens have a First Amendment right to access
the Internet," United States v. Eaglin, 913 F.3d 88, 96 (2d Cir. 2019), we have also held that
a defendant may be required, in certain circumstances, to submit to a computer
monitoring program, see United States v. Browder, 866 F.3d 504, 512 (2d Cir. 2017).
Here, the condition in question provides that "[Dill] shall not use or
possess any computer . . . unless [he] participates in the Computer and Internet
Monitoring Program (CIMP), or unless authorized by the Court or the U.S. Probation
Office." J. App'x at 94. The operative deprivation of liberty -- a restriction on computer
usage -- is ordered by the district court, not the probation officer. See Matta, 777 F.3d at
122. Moreover, while a probation officer may grant Dill access to a computer, Dill can
also gain access by participation in the CIMP or by authorization from the district court.
Thus, the condition in question does not constitute an improper delegation of the
district court’s authority.
Dill further argues that requiring him to pay the cost of monitoring
services infringes on his First Amendment right to access and communicate on the
internet because he may be unable to pay such costs. Dill argues that although prior to
his arrest he earned $70,000 a year as an engineer, his employment options after his
release are unknown. The record is, however, silent as to how much monitoring would
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cost, and Dill provides no guidance even as to a range of costs. Because "the record
before us did not establish [that the cost of monitoring would be prohibitive] as a matter
of fact," we need not reach whether the condition is "illegitimate as a matter of law."
Brooklyn Legal Servs. Corp. v. Legal Servs. Corp., 462 F.3d 219, 232 (2d Cir. 2006), abrogated
on other grounds by Bond v. United States, 564 U.S. 211 (2011). And if circumstances
should change such that the cost of monitoring were to become prohibitive, Dill can
always return to the district court to request a modification of the condition.
Accordingly, we find no plain error in the district court's imposition of the condition.
III. Notification of Risk Requirement
Dill argues that the risk notification condition, even as amended by the
standing order, gives the probation officer too much discretion in determining who
should be notified about a risk Dill may pose. This argument is, however, unripe. See
United States v. Traficante, No. 18-1962, 2020 WL 4032220, at *5 (2d Cir. July 17, 2020)
(declining to rule on challenge to third-party risk notification condition, as amended by
standing order, noting that "while it could be argued that the standing order
contemplates vesting the probation officer with a degree of discretion that is
inconsistent with our holding in Boles, such a challenge . . . [is] unripe, since the
ostensibly improper delegation may never actually occur"). Accordingly, we decline to
reach this challenge.
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We have considered Dill's remaining arguments and conclude they are
without merit. For the foregoing reasons, we AFFIRM the judgment of the district
court.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk of Court
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