United States v. Voelker ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
6-5-2007
USA v. Voelker
Precedential or Non-Precedential: Precedential
Docket No. 05-2858
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 05-2858
UNITED STATES OF AMERICA
v.
DANIEL VOELKER,
Appellant
Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal No. 05-cr-00133)
District Judge: Hon. Alan N. Bloch
Argued: July 13, 2006
Before: SLOVITER, McKEE and RENDELL,
Circuit Judges
(Opinion filed June 5, 2007)
Karen S. Gerlach
Renee Pietropaolo (Argued)
Office of Federal Public Defender
1001 Liberty Avenue
1450 Liberty Center
Pittsburgh, PA 15222
Attorney for Appellant
Robert L. Eberhardt (Argued)
Laura S. Irwin
Office of United States Attorney
700 Grant Street Suite 400
Pittsburgh, PA 15219
Attorney for Appellee
OPINION
McKEE, Circuit Judge.
Daniel Voelker was sentenced to seventy-one months in
prison followed by a lifetime term of supervised release after he
pled guilty to possessing child pornography in violation of 18
U.S.C. § 2252(a)(2). He appeals only the special conditions that
the court imposed on the term of supervised release. For the
reasons that follow, we will vacate those conditions and remand
for resentencing consistent with this opinion.
I. BACKGROUND
During an FBI investigation into the online activity of
Wyndell Williams, agents monitored a computer “chat” between
Williams and Daniel Voelker. During this online
communication, Voelker, a thirty-five year-old Pennsylvania
2
resident, briefly exposed the buttocks of his three year-old
daughter over a webcam that was connected to his computer.
When the FBI subsequently confronted Voelker with this
information, he acknowledged downloading child pornography
onto his computer, and he directed agents to computer discs
where the files were stored. He also admitted to partially
exposing his daughter over his webcam, but he insisted that
statements he had made about sexual contact with minors or
offering his daughter for sex were merely gratuitous statements
in the nature of “role-playing.” He claimed that he never
intended to follow through on any of those statements but
admitted that he engaged in such online “role-playing” on a
daily basis. Agents subsequently searched Voelker’s home
pursuant to a warrant and seized computer files containing child
pornography.
Thereafter, Voelker waived indictment and pled guilty to
receipt of material depicting the sexual exploitation of a minor
in violation of 18 U.S.C. § 2252(a)(2). Under the terms of the
3
plea agreement, Voelker also accepted responsibility for a
second count of possession of material depicting the sexual
exploitation of a minor in violation of 18 U.S.C. §
2252(a)(4)(B), but that count was subsequently dismissed on
motion of the government.
As noted at the outset, the District Court sentenced
Voelker to seventy-one months incarceration followed by a
lifetime term of supervised release pursuant to 18 U.S.C. §
3583(k). The lifetime term of supervised release and three
conditions the court imposed are the subject of this appeal. As
summarized by the government, the conditions were as follows:
1. The defendant is prohibited from accessing
any computer equipment or any “on-line”
computer service at any location, including
employment or education. This includes, but is
not limited to, any internet service provider,
bulletin board system, or any other public or
private computer network;
2. The defendant shall not possess any materials,
including pictures, photographs, books, writings,
drawings, videos or video games depicting and/or
describing sexually explicit conduct as defined at
Title 18, United States Code, Section 2256(2);
4
and
3. The defendant shall not associate with children
under the age of 18 except in the presence of a
responsible adult who is aware of the defendant’s
background and current offense and who has been
approved by the probation officer.
This appeal followed.1
II. DISCUSSION.
A sentencing judge is given wide discretion in imposing
a sentence. However, the discretion is not absolute. It must be
exercised within the parameters of 18 U.S.C. § 3583. Unites
States v. Crandon, 173 F.3d 122, 127 (3d Cir. 1999). Section
3583(d) requires a sentencing court to impose certain statutorily
1
We review conditions of supervised release for abuse of
discretion. United States v. Crandon, 173 F.3d 122, 127 (3d Cir.
1999). However, if the condition was imposed without
objection, we review only for plain error. United States v.
Warren, 186 F.3d 358, 362 (3d Cir. 1999); cf. Fed. R. Crim. P.
52(b).
Voelker objected to the first two conditions (prohibition
of computers and internet access, and prohibition of possession
of “sexually explicit” materials), but he did not object to the
third condition.
5
mandated conditions as part of any term of supervised release.
These mandatory conditions include such generally applicable
conditions as attendance at court approved rehabilitation
programs, supplying a DNA sample, and testing for controlled
substances. 18 U.S.C. § 3583(d). Section 3583(d) also allows
the court to impose more specific conditions of supervised
release tailored to the specific offense and offender. However,
any such condition must be “reasonably related” to the factors
set forth in 18 U.S.C. § 3553(a). Those factors include: “(1) the
nature and circumstances of the offense and the history and
characteristics of the defendant; [and] (2) the need for the
sentence imposed . . . (B) to afford adequate deterrence to
criminal conduct; (C) to protect the public from further crimes
of the defendant; and (D) to provide the defendant with needed
educational or vocational training, medical care, or other
correctional treatment in the most effective manner.” 18 U.S.C.
§ 3553(a). Any such condition must impose “no greater
deprivation of liberty than is reasonably necessary” to deter
6
future criminal conduct, protect the public, and rehabilitate the
defendant. 18 U.S.C. § 3583(d)(2); see United States v.
Pruden, 398 F.3d 241, 248 (3d Cir. 2005) (noting that the
considerations included in § 3583 by the incorporation of § 3553
“are fairly broad, but they do impose a real restriction on the
district court's freedom to impose conditions on supervised
release.”).
Conditions of supervised release must be supported by
some evidence that the condition imposed is tangibly related to
the circumstances of the offense, the history of the defendant,
the need for general deterrence, or similar concerns. Pruden,
398 F.3d at 248-49. “[A] condition with no basis in the record,
or with only the most tenuous basis, will inevitably violate §
3583(d)(2)’s command that such conditions involve no greater
deprivation of liberty than is reasonably necessary.” Id. at 249
(internal quotations omitted). Accordingly, “courts of appeals
have consistently required district courts to set forth factual
findings to justify special probation conditions.” United States
7
v. Warren, 186 F.3d 358, 366 (3d Cir. 1999).2
Where a sentencing court fails to adequately explain its
reasons for imposing a condition of supervised release or the
condition’s relationship to the applicable sentencing factors, we
may nevertheless affirm the condition if we can “ascertain any
viable basis for the . . . restriction in the record before the
District Court . . . on our own.” See id., 186 F.3d at 367.
Although Voelker is challenging the lifetime term of his
supervised release as well as the three special conditions of
supervised release set forth above, we need not separately
address his challenge to the term of his supervised release. Our
discussion of the propriety of the conditions imposed on that
term applies to duration of the term with equal force.
Accordingly, we will focus on the propriety of the conditions of
2
Although Warren concerns conditions of probation
rather than supervised release, the distinction is without a
difference for purposes of our inquiry, and the analysis there is
relevant to our analysis here. See United States v. Evans, 155
F.3d 245, 250-51 (3d Cir. 1998) (holding that the rules guiding
imposition of special conditions are identical for probation and
supervised release.).
8
the supervised release.
A. PROHIBITION OF COMPUTER EQUIPMENT AND
THE INTERNET
Voelker contends that an absolute lifetime ban on using
computers and computer equipment as well as accessing the
internet, with no exception for employment or education,
involves a greater deprivation of liberty than is reasonably
necessary and is not reasonably related to the factors set forth in
18 U.S.C. § 3583. We agree.
The District Court did not explain its reasons for
imposing such an unprecedented and sweeping lifetime
restriction. We therefore have no way of determining if the
court undertook the “careful and sensitive individualized
assessment [that] is always required before such a ban is
imposed.” United States v. Johnson, 446 F.3d 272, 282 n.2 (2d
Cir. 2006).
Given this record, we assume that the court imposed the
ban because computers and the internet were inextricably
9
involved in his criminal conduct. Nevertheless, given the
extraordinary breadth of this condition and the absence of any
explanation, we are at a loss to understand how the District
Court could have considered the factors contained in § 3553(a)
and concluded that this condition is narrowly tailored to impose
no greater restriction than necessary. The condition is the
antithesis of a “narrowly tailored” sanction. The lifetime ban on
all computer equipment and the internet is the functional
equivalent of prohibiting a defendant who pleads guilty to
possession of magazines containing child pornography from
ever possessing any books or magazines of any type during the
remainder of his/her life.
The ubiquitous presence of the internet and the all-
encompassing nature of the information it contains are too
obvious to require extensive citation or discussion. Even a
casual user of the “information highway” will realize that it
instantly provides near universal access to newspapers such as
the New York Times; the Wall Street Journal and the
10
Washington Post; to popular magazines such as Newsweek and
Time, such respected reference materials as the Encyclopedia
Britannica and World Book Encyclopedia, and much of the
world’s literature.3
We realize, of course, that the anonymous access to all
kinds of information opens the door to all kinds of abuse. This
case clearly illustrates the potential for abuse and victimization
that is also endemic in the internet.4 Here, the victims of that
3
For example, “Project Gutenberg” is an online
collection of over 20,000 works of literature in over fifty
languages that are all in the public domain and available for free
download and reading to anyone with access to a computer. See
Project Gutenberg, http://www.gutenberg.org/catalog/ (last
visited March 19, 2007). Thousands of these works are also
available as “ebooks” that can be downloaded and stored for
subsequent leisure reading on various kinds of computer devices
from the traditional desktop to handheld personal organizers.
See id.
4
The Internet is home to countless virtual communities
and chat-rooms where “[v]irtually any type of sexual fantasy
may be witnessed (or participated in).” Michael W. Sheetz,
CyberPredators: Police Internet Investigations Under Florida
Statute 847.0135, 54 U. MIAMI L. REV. 405, 426-47 (2000). For
an in-depth study of such virtual communities, see SHERRY
TURKLE, LIFE ON THE SCREEN: IDENTITY IN THE AGE OF THE
INTERNET (1995).
11
abuse are children who tragically become involved in the world
of online child pornography. This was obviously the District
Court’s concern and focus in imposing this condition.
Nevertheless, we have never approved such an all-
encompassing, severe, and permanent restriction, and nothing on
this record inspires confidence in the propriety of doing so now.
The court in Crandon imposed the most severe restriction on
computer and internet use that we have thus far upheld. 173
F.3d at 128. There, Crandon, a thirty-nine year-old New Jersey
resident, met a fourteen year-old girl from Minnesota online. Id.
at 125. Crandon communicated with the girl over the internet
for several months and eventually traveled to Minnesota to meet
her. Id. During his visit to Minnesota, the two had sexual
relations, and Crandon took sexually explicit photos of her. Id.His activity was subsequently discovered, and he
eventually pled guilty to one count of receiving child
pornography in violation of 18 U.S.C. § 2252(a)(2). Id. He was
sentenced to seventy-eight months in prison followed by a three-
12
year term of supervised release. Id. One of the conditions of
supervised release directed that Crandon not “possess, procure,
purchase or otherwise obtain access to any form of computer
network, bulletin board, Internet, or exchange format involving
computers unless specifically approved by the United States
Probation Office.” Id. We upheld that condition because
Crandon had used the internet to develop and exploit the
relationship. Id. at 127-28. Thus, the restriction on internet
access was reasonably related to “the dual aims of deterring him
from recidivism and protecting the public.” Id. The restriction
was narrowly tailored and consistent with Crandon’s criminal
conduct even though it may have jeopardized his employment
and impacted his First Amendment freedoms. Id. at 128.
The government argues that this case “warrants the kind
of special supervisory condition [we] allowed in Crandon”
because it is similar to Crandon “in its essentials.” Appellee’s
Br. at 12, 14. That is simply not true.
The government’s reliance on Crandon ignores the
13
glaringly obvious difference between the duration of Crandon’s
conditions and the duration of Voelker’s conditions. Crandon’s
restrictions remained in place for three years; Voelker’s
restrictions will last as long as he does. Furthermore, Crandon
used computers and the internet to actually seek out, and then
communicate with, his victim. Crandon also traveled across the
country to have sex with the minor he met and seduced online.
Still, Crandon was allowed to continue using stand-alone
computers and computer equipment, and he retained the right to
use the internet with the consent of the Probation Office.
Voelker is not afforded either of those options. Although
Voelker’s conduct was reprehensible, he did not use his
computer equipment to seek out minors nor did he attempt to set
up any meetings with minors over the internet as Crandon did.
Since Voelker’s conduct was not nearly as predatory as
Crandon’s, the latter actually counsels against the much more
14
intrusive lifetime restriction on Voelker.5
Moreover, 18 U.S.C. § 3553(a) requires that courts
consider “the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found
guilty of similar conduct.” 18 U.S.C. §3553(a)(6). At Voelker’s
sentencing, the government asked the court to impose a 71
month sentence of imprisonment followed by lifetime
supervision because that was the sentence imposed on Wyndell
Williams, the target the FBI was investigating when Voelker’s
activity was discovered. Supp. App.116-17. However, there was
“considerable evidence that Williams attempted to actually
engage in sexual acts with minors.” His behavior was therefore
much more analogous to Crandon’s conduct than to Voelker’s.
The District Court could clearly have imposed some
limitations on Voelker’s access to computers and the internet.
5
Although we do not know Crandon’s criminal history,
we do know that Voelker has no prior criminal record, and the
offense of which he was convicted is the same as that of
Crandon.
15
However, it is equally clear that any such restriction had to be
narrowly tailored and consistent with the sentencing factors set
forth in 18 U.S.C. § 3553(a). See United States v. Booker, 543
U.S. 220, 233-34 (2005). The conditions imposed on Voelker
fall woefully short of that requirement. See United States v.
Peterson, 248 F.3d 79, 83 (2d Cir. 2001) (noting that the mere
use of telephones to commit an offense does not justify an
absolute ban on using telephones). The restrictions here bear no
resemblance to the narrowly tailored sanctions that are required
by § 3553(a). A brief discussion of our decision in United
States v. Freeman, 316 F.3d 386 (3d Cir. 2003), illustrates the
kind of tailoring the court should have considered.
Freeman was an admitted pedophile whose predatory
behavior went as far as seeking out babysitting jobs in order to
photograph nude boys. Id. at 388. Freeman also admitted to
“molesting numerous young boys,” although the molestations
had occurred more than fifteen years before the possession of
child pornography charges that were then before the court. Id.16
In addition, two convictions for sexual misconduct were not
included in his criminal history “because of their age.” Id.Freeman also pled guilty to receipt and possession of child
pornography in violation of 18 U.S.C. § 2252(a)(2) and (4)(B).
Id. at 387-88. In imposing sentence, the court departed upward
from Criminal History Category I to Category III based upon its
conclusion that Category I under-represented Freeman’s record
and his likelihood of recidivism. Id. at 388. The court imposed
a sentence of seventy months incarceration followed by five
years of supervised release. Id. at 389. During the term of
supervised release, Freeman was “prohibited from having any
computer equipment in [his] . . . residence.” Id. In addition, he
could “not possess or use a computer with access to any on-line
computer service . . . without the written approval of the
Probation Officer.” Id. at 389-90. To ensure compliance,
Freeman also had to “consent to periodic, unannounced
examinations of [his] residence and possessions, to determine if
[he was] in possession of computer equipment or any child
17
pornography.” Id., at 390 (brackets around “his” in original).
Freeman appealed the condition of supervised release that
prohibited “using or possessing a computer without the
permission of his probation officer.” Id. In explaining why that
condition was overly broad, we declared: “There is no need to
cut off . . . access to email or benign internet usage when a
more focused restriction, limited to pornography sites and
images, can be enforced by unannounced inspections of material
stored on [the defendant’s] hard drive or removable disks.” Id.
at 392. We also explained that “a special condition forbidding
him from possessing any computer . . . or using any on-line
computer service without the written approval of the probation
officer is overly broad; it involves a greater deprivation of
liberty than is reasonably necessary to deter future criminal
conduct and to protect the public.” Id. at 391-92.6 Yet, the five
year restriction we struck down in Freeman pales in comparison
6
Although we concluded that the conditions were too
restrictive, we left open the possibility that such conditions
could be imposed in the future if Freeman did not comply with
more limited conditions. Freeman, 316 F.3d at 392.
18
to the lifetime restrictions imposed here.7
In Freeman, we distinguished Crandon by emphasizing
Crandon’s use of the internet to contact and exploit victims. Id.
at 392. In contrast, there was “nothing . . . to suggest that
Freeman [had] used the internet to contact young children.” Id.Accordingly, Crandon’s computer usage was far more
problematic and “more difficult to trace than simply using the
internet to view pornographic web sites.” Id. Periodic
inspection of Crandon’s computer equipment would not have
addressed concerns about future illegal conduct nor adequately
7
During oral argument, the government indicated that
the breadth of the restriction here was partly due to the fact that
the probation office lacked sufficient funding or personnel to
monitor Voelker’s computer use. However, there is nothing on
the record to suggest that was a consideration, and the District
Court never relied upon any such concern to justify the absolute
prohibition it imposed. Moreover, even if the court had
considered cost, we would be reluctant to agree that such
dramatic limitations on First Amendment freedoms can readily
be justified by the cost of affording fundamental liberties. This
is particularly true given the court’s failure to explore the
alternatives we suggested in Freeman, including periodic
inspection of the defendant’s hard drive and other storage
media.
19
protected the public. The conduct here is clearly more akin to
Freeman than Crandon.
We realize that attempts to tailor conditions of supervised
release to the specifics of an offense involving computers and
the internet are particularly difficult given the extent to which
computers have become part of daily life and commerce.8 That
8
“Computers and Internet access have become virtually
indispensable in the modern world,” Peterson, 248 F.3d at 83,
and their permeation of all aspects of our lives is increasing
exponentially. “[L]ocal governments are making [wireless]
Internet part of the public infrastructure (akin to roads and sewer
lines).” Robert MacMillan, Life, Liberty and Free WiFi,
WASHINGTONPOST.COM, May 2, 2005, available at LEXIS,
News Library.
Although it is impossible to remain unaware of the
exponential growth of computers or our dependence on them, it
is still difficult to fully appreciate the extent to which they
impact our daily lives because it is not always apparent. For
example, “[c]ars today might have as many as 50
microprocessors . . . .” Karim Nice, How Car Computers Work,
http://computer.howstuffworks.com/car-computer.htm (last
viewed on December 28, 2006). “All cars manufactured today
contain at least one computer.” What does the computer in a car
do?, http://auto.howstuffworks.com/question113.htm (last
visited Dec. 28, 2006). Computers control automatic braking
systems and monitor everything from emissions to air and
engine temperature. Id.Thus, literal compliance with the court’s ban on
accessing computer equipment would have impacted Voelker’s
ability to drive a car as well as his ability to use such everyday
20
does not, however, justify the kind of lifetime cybernetic
banishment that was imposed here. See United States v. Crume,
422 F.3d 728, 733 (8th Cir. 2005) (the record did not support a
broad ban on computers and the internet, which are “an
important medium of communication, commerce, and
information-gathering”); United States v. Holm, 326 F.3d 872,
878 (7th Cir. 2003) (monitored access to the internet ensured
that the offender would not use it for illegal purposes while
recognizing the “need to allow him to function in the modern
world”).
Although supervised release is obviously not a custodial
sentence, it is nonetheless hard to imagine how Voelker could
function in modern society given this lifetime ban on all forms
of computer access and use. The court did not pronounce an
resources as ATM machines and grocery store scanners.
Microprocessors that can easily be considered computers or
computer equipment, are even found in such every day
appliances as washing machines, television sets, microwave
ovens and video cassette recorders. See
http://www.atarimagazines.com/compute/issue40/smart_prod
ucts.php (last viewed May 7, 2007).
21
unconstitutional banishment as such, but the conditions that
were imposed have analogous consequences that the District
Court did not justify and apparently did not consider. See
United States v. Abushaar, 761 F.2d 954, 961 (3d Cir. 1985)
(requiring that probation time be served outside the country was
“impermissible [in part] because it was completely unrelated to
any purpose to rehabilitate . . ..”).
Our research has failed to disclose any court of appeals
decision affirming a lifetime ban on computers or a blanket ban
on “computer equipment.” Only the Court of Appeals for the
Fifth Circuit has approved a complete ban on the use of
computers in a precedential opinion, and that was limited to
three years. See United States v. Paul, 274 F.3d 155, 170 (5th
Cir. 2001).9 Unlike Voelker, the defendant there “used the
Internet to initiate and facilitate a pattern of criminal conduct
9
The Court of Appeals for the Fifth Circuit approved a
complete ban on the use of computers in United States v.
McDermott, 133 Fed. Appx. 952, 954 (5th Cir. 2005). However,
that was in a non-precedential opinion and the review was for
plain error. Id. at 953.
22
and victimization.” Id. at 169 (internal quotation marks
omitted). Paul even used online resources and bulletin boards
to inform others about websites featuring child pornography. Id.
at 168. He also told others “how to ‘scout’ single, dysfunctional
parents and gain access to their children.” Id. His computer
usage included soliciting individuals for trips to “visit” children
in Mexico. Id. Thus, his conduct was exponentially more
dangerous than Voelker’s. Paul was a predator who roamed the
internet in search of prey while telling like minded predators
how to prey upon the unsuspecting victims on the internet.
Voelker’s use of computers and the internet does not pose
the kind of unbridled threat to the unsuspecting public that either
Paul or Crandon posed. The breadth and duration of the
prohibition in Voelker’s case is particularly unfathomable
because Voelker was employed as a respiratory therapist from
1996 until his arrest. It is hard to imagine how he could remain
employed in that or any similar occupation absent access to
computer equipment. In fact, he claims that “[s]uch employment
23
in a hospital necessarily entails access to and the use of
computers and computer equipment for record keeping [and]
patient care.” Appellant’s Br. at 23.10 The government does not
attempt to rebut that representation, and few who have walked
down the halls of any modern hospital would question it.
The Sentencing Guidelines advise that a District Court
should only impose an occupational restriction when there is a
“reasonably direct relationship . . . between the defendant's
occupation . . . and the conduct relevant to the offense of
conviction; and imposition of such a restriction is reasonably
necessary to protect the public because there is reason to believe
that, absent such restriction, the defendant will continue to
engage in [similar] unlawful conduct.” U.S.S.G. § 5F1.5(a)
10
According to Voelker, computers are incorporated into
such common lifesaving equipment as resuscitators and
ventilators. Appellant’s Br. At 23. Although a District Court
need not impose a sentence that allows for continued
employment, it was well within the sentencing court’s discretion
to consider the impact of a given sentence on a family unit and
impose a lesser sentence even under the mandatory guidelines
regime that preceded United States v. Booker. See United States
v. Dominguez, 296 F.3d 192, 194 (3d. Cir. 2002).
24
(implementing occupational restrictions authorized by 18 U.S.C.
§ 3583(d) for supervised release). Moreover, even “[i]f a
district court makes both determinations and imposes an
occupational . . . restriction, it must be for ‘the minimum time
and to the minimum extent necessary to protect the public.’”
United States v. Smith, 445 F.3d 713, 717 (3d Cir. 2006)
(quoting U.S.S.G. § 5F1.5(b)).
The government does not claim that Voelker used
computers to download pornography at work, and the record
does not suggest that he did. Yet, the court imposed a
prohibition that prevents him from resuming his previous
vocation and erects a seemingly insurmountable barrier to future
training to secure other employment. It precludes him from
taking online courses and could easily interfere with more
traditional instruction, as those classes may rely on email and
online reference materials.
This does not, of course, mean that the district court may
not impose some kind of restriction on Voelker’s computer use
25
and internet access on remand. However, any such restrictions
must be consistent with 18 U.S.C. § 3583(d)(2). They must be
appropriately tailored and impose no greater restriction on
Voelker’s liberty than necessary. See 18 U.S.C. § 3583(d). In
addition, the court must provide a sufficiently detailed
explanation of any such restriction to allow for meaningful
appellate review. See United States v. Cooper, 437 F.3d 324,
328 (3d Cir. 2006). The court’s justification should consider the
ubiquitous nature of the internet as a medium of information,
commerce, and communication as well as the availability of
filtering software that could allow Voelker’s internet activity to
be monitored and/or restricted. See United States v. White, 244
F.3d 1199, 1206 (10th Cir. 2001). As we discuss more fully
below, the court must also consider the First Amendment
implications of any such restriction. The ban the court imposed
here “sweeps more broadly and imposes a greater deprivation
on [Voelker’s] liberty than is necessary.” United States v. Holm,
326 F.3d 872, 877 (7th Cir. 2003).
26
B. PROHIBITION ON SEXUALLY EXPLICIT MATERIALS
Voelker is also prohibited from possessing any textual
descriptions or visual descriptions of “sexually explicit
conduct,” as defined by 18 U.S.C.§ 2256(2)(A). This means
“actual or simulated (i) sexual intercourse, including genital-
genital, oral-genital, anal-genital, or oral-anal, whether between
persons of the same or opposite sex; (ii) bestiality; (iii)
masturbation; (iv) sadistic or masochistic abuse; or (v)
lascivious exhibition of the genitals or pubic area of any
person.” Id.
Voelker argues that this condition violates the First
Amendment and, like the ban on computer and internet access,
it also involves a greater deprivation of liberty than is
reasonably necessary to deter future criminal conduct and
protect the public.
Although the court did not provide us with an explanation
for this condition either, the conduct the defendant admitted to
offers some support for this restriction. When the District Court
27
does not articulate its reasons for imposing a given sentence,
“‘we may . . . examine the record and perform the required
balancing ourselves.’” United States v. Johnson, 388 F.3d 96,
101 (3d Cir. 2004) (quoting Becker v. ARCO Chemical Co., 207
F.3d 176, 181 (3d Cir. 2000)).11
It is apparent from the charges Voelker pled guilty to, as
well as the conduct he admitted, that the court thought this
condition was consistent with the nature of Voelker’s offense.
Although “the District Court could, perfectly consonant with the
Constitution, restrict [an offender’s] access to sexually oriented
materials,” such a restriction must have a nexus to the goals of
supervised release. United States v. Loy, 237 F.3d 251, 267 (3d
Cir. 2001) (“Loy II”). We are unable to find any such nexus
here, and the District Court’s failure to explain its reasons makes
our review all the more difficult.12 We assume the court believed
11
Although in Johnson we were addressing Federal Rule
of Evidence 609(b), this statement is equally applicable here.
12
The government asserts, without explanation, that this
condition “does reasonably relate to the nature and
circumstances of the Appellant’s offense.” Appellee’s Br. 19.
28
a lifetime ban on possessing “sexually explicit materials” would
further his rehabilitation and reduce the chances of recidivism.
At first blush, this restriction appears to be sufficiently
related to Voelker’s offense to survive his challenge. Although
a ban on accessing sexually explicit material involving children
would certainly be reasonable, there are First Amendment
implications for a ban that extends to explicit material involving
adults. We assume that the condition was specifically intended
to include explicit material involving adults because such
material cannot legally involve children, and the statutorily
mandated conditions of supervised release require Voelker to
comply with those laws. Those conditions prohibit future
possession of child pornography. However, nothing on this
The government points us, presumably for clarification, to
United States v. Bee, where a similar condition was upheld. 162
F.3d 1232, 1235 (9th Cir. 1998). It is not entirely clear why the
court in Bee felt that restricting sexually explicit materials “was
necessary to address Bee’s problems with deviant sexual
behavior triggered by his abuse of alcohol.” Id. In any event,
that case involved physical abuse of a six year-old girl. Id. at
1234. The supervised release condition was limited to three
years and narrower in scope than the restriction the court
imposed here. Id.29
record suggests that sexually explicit material involving only
adults contributed in any way to Voelker’s offense, nor is there
any reason to believe that viewing such material would cause
Voelker to reoffend.13
Even assuming this restriction has some unexplained
rehabilitative, deterrent or penological purpose, given our
discussion in United States v. Loy, 191 F.3d 360 (3d Cir. 1999)
(“Loy I”),14 it should have been apparent that any such purpose
13
Compare United States v. Simmons, 343 F.3d 72 (2d
Cir. 2003), where Simmons was convicted of transporting a
minor in foreign commerce for the purpose of engaging in
illegal sexual conduct and of producing sexually explicit
videotapes. Id. at 74. Simmons’ sentence involved a three year
term of supervised release, which included a condition
prohibiting him from possessing or viewing “pornographic
material.” Id. at 74-75. In upholding the condition, the court
explained that since Simmons “often videotaped his sexual
attacks upon his victims, it was reasonable for [the District
Court] to conclude that there was a connection between
Simmons’ viewing and possessing sexually explicit material and
his criminal behavior.” Id. at 82.
14
We vacated a sentence in Loy I because of the
conditions of supervised release and remanded for resentencing.
In Loy II, we vacated the sentence that was imposed on remand
and remanded the case once again. Since both Loy I, and Loy II
are relevant to the issues here, we will collectively refer to them
as “Loy,” where appropriate.
30
had to be balanced against the serious First Amendment
concerns endemic in such a restriction.15 See Loy II. The
conditions imposed here are particularly troublesome when
viewed against the backdrop of our discussion in Loy. As we
discuss below, these conditions of supervised release are almost
identical to the conditions we vacated there. Moreover, these
conditions were imposed by the same sentencing judge.
Loy entered a guilty plea to knowingly receiving child
pornography through the mails in violation of 18 U.S.C. §
2252(a)(2) and also entered a conditional guilty plea to violating
§ 2252(a)(4)(B).16 Loy II, 237 F.3d. at 255. The sentence that
was imposed included a three year term of supervised release
with conditions that included testing and treatment for drugs and
15
Nonobscene, sexually explicit materials involving
persons over the age of seventeen are protected by the
Constitution, without regard to their social worth. See United
States v. X-Citement Video, Inc., 513 U.S. 64, 72 (1994), Stanley
v. Georgia, 394 U.S. 557, 563-64 (1969).
16
Loy reserved his right to challenge the legitimacy of
an anticipatory search warrant that was used during the course
of the investigation. See Loy I, 191 F.3d at 364.
31
alcohol, a prohibition on unsupervised contact with minors, and
a prohibition against possessing any kind of pornography. Id.On appeal, Loy challenged each of those conditions. Id. at 253.
He argued that there was nothing in the record to suggest that
drug and alcohol treatment or counseling was appropriate. Loy
I, 191 F.3d at 370. He also argued that prohibiting unsupervised
contact with minors and the possession of any kind of
pornography was “not reasonably related to any of the statutory
goals and involve[d] a greater deprivation of liberty than
required.” Id. at 371.
We remanded the case to the District Court for
resentencing because the court imposed the special conditions
“without making any factual findings relating to them or
providing any reasons in support of them.” Id. “Since we
[could] not know why the district court imposed these
conditions, we [could not] properly review Loy’s abuse of
discretion claim.” Id. In remanding, we “remind[ed] the court
that the conditions of supervised release must be reasonably
32
related to the goals of deterrence, protection of the public and
rehabilitation of the defendant.” Id. (citing 18 U.S.C. §§
3583(d)(1), 3553(a)(2)). We added, “[m]oreover, we caution
that any condition implicating the deprivation of liberty can be
no greater than necessary to meet these goals.” Id. (emphasis
added) (citing 18 U.S.C. § 3583(d)(2)).
On remand, the District Court eliminated the requirement
of drug and alcohol testing and treatment but reimposed the
conditions “barring Loy from possessing pornography of any
type, as well as from having any unsupervised contact with
minors.” Loy II, 237 F.3d at 255. The court amended the latter
condition to add the requirement that “any supervision must
come from someone other than [Loy’s] wife” because
information learned during the investigation suggested that she
was also involved with child pornography. Id.In reimposing the conditions, the court explained that “‘it
is sometimes impossible to differentiate between children and
adults in pornographic materials,’ [and the prohibition of all
33
pornography] was necessary to protect children who are
victimized in child pornography as well as to deter Loy from
further criminal conduct or from attempting to obtain illegal
child pornography.” Id. (quoting the District Court’s opinion).
Loy again appealed. Id. at 253. He argued that the ban on “all
forms” of pornography was overbroad and that the prohibition
against unsupervised contact with minors was not reasonably
related to statutory goals of sentencing and interfered with his
right to procreate and raise a family. Id.In adjudicating the appeal, we described the ban on all
forms of pornography as “an unusually broad condition.” Id. at
266. We concluded that a ban is not “‘narrowly tailored’ if it
restricts First Amendment freedoms without any resulting
benefit to public safety.” Id. We explained that the ban the
court imposed was so broad that it extended “not only to
Playboy magazine, but also to medical textbooks[,] . . . serious
art [and] ubiquitous advertising.” Id. at 266-67. Since it included
both legal and illegal pornography, it was overly broad and
34
could not stand. Id. at 267. We also concluded that it violated
Loy’s due process rights by “failing to provide [him] with
adequate notice of what he may and may not do, chilling First
Amendment rights in the process.” Id. at 267.
As we noted above, that sentence was imposed by the
same judge who imposed the sentence here. However, unlike
the undefined ban the judge imposed in Loy, the court here
incorporated 18 U.S.C. § 2256(2) into the prohibition into the
definition of “pornographic material” in an apparent attempt to
avoid the fatal flaw that afflicted the sentence in Loy. The
definition of “sexually explicit conduct” contained in § 2256(2)
is set forth below.17 However, even given this refinement, the
17
18 U.S.C.§ 2256(2) defines “sexually explicit
conduct,” as follows:
(2)(A) actual or simulated--
(I) sexual intercourse, including genital-genital,
oral-genital, anal-genital, or oral-anal, whether
between persons of the same or opposite sex;
(ii) bestiality;
(iii) masturbation;
(iv) sadistic or masochistic abuse; or
(v) lascivious exhibition of the genitals or pubic
area of any person[.]
35
prohibition on possessing sexually explicit material still sweeps
within its reach some legal adult pornography as well as illegal
child pornography. Thus, in attempting to avoid the problems
the court encountered in Loy, it ignored our caution that “the
deprivation of liberty can be no greater than necessary to meet
[the] goals [of 18 U.S.C. § 3583(2)].” Loy I, 191 F.3d at 371.
Furthermore, the court once again failed to provide an analysis
or explanation to support this broad restriction.
We realize that the court attempted to justify the
prohibition of adult pornography on remand in Loy by relying
upon the asserted difficulty of knowing whether persons
depicted in pornography are minors. 237 F.3d at 255. However,
that justification does not appear anywhere on this record. We
will not scour the jurisprudence of a sentencing judge in an
attempt to divine the justification for a sentence based upon
similar sentences that the judge may have explained in a similar
36
case years before, especially since § 3583 requires sentencing
courts to explain the sentences they impose.
Moreover, even if we were to reach beyond this record
and assume the court was relying upon the same justification it
furnished in Loy, the instant condition would still be problematic
because it includes legal pornography depicting individuals who
are clearly not minors. Accordingly, we will also vacate this
condition of special release.
C. RESTRICTION ON ASSOCIATING WITH CHILDREN
The District Court prohibited Voelker from associating
with minors without the prior approval of the Probation Officer
and mandated that any such contact be in the presence of an
adult who is familiar with Voelker’s criminal background.
Voelker argues that this condition prevents him from having
unsupervised contact with his two children or any children he
may have in the future. He claims that it therefore interferes
with his constitutional right of procreation, as well as his
fundamental liberty and his freedom of association under the
37
First Amendment. Since Voelker did not object to this condition
at sentencing, we review for plain error. See Jones v. United
States, 527 U.S. 373, 389 (1999).
In order for us to find plain error:
There must be an “error” that is “plain” and that
“affects substantial rights.” The deviation from a
legal rule is “error,” and an error is “plain” if it is
“clear” or “obvious.” In most cases, an error
affects substantial rights if it is prejudicial, i.e.,
“affected the outcome of the district court
proceedings.” . . . We will exercise our discretion
and vacate the sentence if the plan error affecting
substantial rights also “seriously affects the
fairness, integrity, or public reputation of judicial
proceedings.”
United States v. Evans, 155 F.3d 245, 251 (3d. Cir.1998)
(internal citations omitted).
“A plainly erroneous condition of supervised release will
inevitably affect substantial rights, as a defendant who fails to
meet that condition will be subject to further incarceration.”
United States v. Pruden, 398 F.3d 241, 251 (3d Cir. 2005).
Similarly, “imposing a sentence not authorized by law seriously
38
affects the fairness, integrity, and reputation of the proceedings.”
Evans, 155 F.3d at 252.
We have held that a sentence is “imposed in violation of
law,” and therefore plainly erroneous, when it is imposed
without proper consideration for the statutory factors that govern
sentencing. United States v. Cooper, 437 F.3d 324, 328 (3d Cir.
2006). “The court need not discuss every argument made by a
litigant . . . . Nor must the court discuss and make findings as to
each of the §3553(a) factors . . . .” Id. at 329. However, the
record must contain sufficient reference to those factors to allow
us to review for reasonableness.
We need not engage in an in-depth discussion of this
claim. There is evidence on this record that Voelker exposed
his daughter’s buttocks over the internet using his webcam.
There is also evidence that he jeopardized his minor daughter’s
welfare by offering her for sex during an online communication.
Although Voelker claims that he never intended to follow
through with that offer and that he was merely “role-playing,”
39
the record nevertheless clearly support restricting his association
with minors. However, the court delegated absolute authority
to the Probation Office to allow any such contacts while
providing no guidance whatsoever for the exercise of that
discretion. Thus, Voelker’s Probation Officer becomes the sole
authority for deciding if Voelker will ever have unsupervised
contact with any minor, including his own children, for the rest
of his life. This is the very kind of unbridled delegation of
authority that we struck down in Loy II. See 237 F. 3d at 266.
There, we stated: “[T]he sentencing court may not wholesaledly
‘abdicate[] its juridical responsibility’ for setting the conditions
of release.” Id. (quoting United States v. Mohammad, 53 F.3d
1426, 1438 (7th Cir. 1995)).18
Even though the record contains evidence that supports
a conclusion that Voelker may be capable of exploiting his own
children, it is not clear to us that the District Court intended this
18
In Mohammad, the court vacated an order of restitution
because the sentencing court allowed the probation officer to
decide the method of payment. 53 F.3d at 1429.
40
lifetime ban on association with minors to extend to his own
children. In Loy II, we resolved the profound legal issues that
arose from a three year ban on association with minors by
assuming that the court did not intend it to apply to the
defendant’s own family. We explained: “Given the severe
intrusion on Loy’s family life that would otherwise result, we
believe that, absent a clearer sign from the District Court, the
condition should be construed to apply only to other people’s
children, and not to Loy’s own.” Loy II, 237 F. 3d at 270.
Although we resolved the ambiguity in Loy by supplying
a presumption that ameliorated the problems that would have
arisen had the ban included the defendant’s own family, we
cannot do that here. Given this record, the court may have
intended the condition to extend to Voelker’s own family. On
remand, the court will have yet another opportunity to clarify the
intended scope of this restriction and to provide sufficient
guidance for the exercise of the Probation Officer’s discretion
if a ban on associating with minors is reimposed.
41
We do not now express any opinion about the legality of
a condition that so drastically interferes with one’s right to
associate with one’s own children. We do, however, caution that
any lifetime ban on association with minors should be supported
by sufficient evidence to resolve the dispute over whether
Voelker was simply role-playing. On remand, the court may
wish to supplement this record with expert testimony from
persons knowledgeable in this area in order to better resolve the
dispute about Voelker’s potential threat to children, particularly
his own children, rather than merely adopting the findings of the
Presentence Report without further explanation. This is
particularly true since the record does not set forth the expertise
of the person(s) who prepared the Presentence Report, in
addressing this sensitive and difficult area.
We need not reiterate that a sentencing court has broad
discretion in fashioning an appropriate sentence and in resolving
any factual dispute relevant to that difficult task. It is equally
clear that the court should proceed cautiously in imposing any
42
condition that could impact Voelker’s parental rights absent
sufficiently reliable supporting evidence. We realize, of course,
that parental rights are not absolute and that they are subject to
the state’s interest in the welfare of the defendant’s children.
Parents can “lose custody of their children or have restrictions
placed on their parental rights” when there is sufficient evidence
“to support a finding that children are potentially in danger from
their parents.” Loy II, 237 F.3d at 269. However, there must be
sufficient “evidence to support a finding that children are
potentially in danger from their parents, [otherwise] the states’
interest cannot be said to be ‘compelling,’ and thus interference
in the family relationship is unconstitutional.” Id. at 269-70.19
19
Voelker is now receiving psychological evaluation and
treatment. Those actively involved in his treatment are well
placed to assist the District Court in determining whether
Voelker poses a sufficient threat to children to justify this
restriction. On remand, the court will have access to the
professionals treating Voelker as well as other professionals
who can assist in determining the propriety of any condition
restricting his contact with minors and whether any such
restriction should extend to his own children. That testimony
can assist the court’s analysis under § 3553(a).
43
III. CONCLUSION.
It is indeed unfortunate that we have had to review a
sentence that mirrors one that this same judge previously
imposed that we had to vacate not once, but twice. We realize
that cases involving child pornography can be particularly
difficult because they involve especially defenseless and
vulnerable victims. Nevertheless, having previously explained
the necessity for narrowly tailoring the kind of conditions of
supervised release that were imposed here, we once again have
to remand with instructions nearly identical to those we issued
twice before. The court’s failure to apply our decision in Loy
is even more worrisome when we consider that the conditions
we vacated there pertained to a term of supervised release that
only lasted three years. Here, for reasons that are not at all
apparent on this record, the court concluded it was appropriate
to impose a lifetime period of supervised release on a thirty-five
year-old defendant, with the conditions we have discussed,
44
without any explanation of why such an unprecedented sanction
was necessary or appropriate.
We would have hoped that the judge would have realized
the need for even greater care in ensuring the proper nexus
between sentence, offense, and offender given the lifetime
duration of the conditions imposed. Yet, it appears that this
sentence was imposed with no more analysis, support, or
explanation than was the case in Loy.
Accordingly, for the foregoing reasons, we will vacate
the challenged conditions of supervised release and remand to
the District Court for further proceedings consistent with this
opinion.
45