United States v. Paul ( 2001 )

REVISED DECEMBER 18, 2001
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 00-41299
____________________
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
RONALD SCOTT PAUL
Defendant-Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
November 19, 2001
Before KING, Chief Judge, DAVIS, Circuit Judge, and VANCE,
District Judge.*
KING, Chief Judge:
After pleading guilty to a charge of knowingly possessing
child pornography in violation of 18 U.S.C. § 2252A, Defendant-
Appellant Ronald Scott Paul was sentenced to five years of
imprisonment and three years of supervised release pursuant to
section 2G2.2 of the United States Sentencing Guidelines. Paul
*
District Judge of the Eastern District of Louisiana,
sitting by designation.
1
appeals to this court, challenging the district court’s
sentencing determination, the conditions of his supervised
release, and the constitutionality of the statute of conviction.
For the following reasons, we AFFIRM Paul’s conviction and his
sentencing determination, including the conditions of supervised
release.
I. Factual and Procedural Background
On May 8, 2000, Defendant-Appellant Ronald Scott Paul took
his personal computer to Electronic Services and Repair, a small
computer repair business in Port Isabel, Texas. While working on
the computer, a technician discovered child pornography on the
hard drive and contacted the Federal Bureau of Investigations
(“FBI”). The FBI’s background check on Paul revealed a 1986
offense involving child pornography. After Paul had retrieved
his computer from the repair technician, FBI agents searched
Paul’s residence pursuant to a valid warrant. The agents seized
the computer, which contained a large number of files with images
of child pornography that had been downloaded from the Internet.
The agents also seized assorted photographs of children,
magazines with nude photographs of children and adults, books
with pictures of nude prepubescent boys, videotapes of random
children filmed in public settings, a large bag of children’s
clothes, and several children’s swimsuits covered with sand.
Additionally, the agents seized a medical bag containing
2
basic medical supplies and Spanish-language flyers advertising
lice removal for children. In the flyers, Paul informed parents
that he would spray their children with a product that kills
lice. The flyers also stated that Paul would conduct a complete
physical examination on each child for “overall health,” which
necessarily required the child to completely undress. The agents
also found between ten and twenty personal cameras in Paul’s
residence.1
Further review of Paul’s computer revealed electronic mail
communications (“e-mails”) discussing sources of child
pornography, including websites, chat rooms, and newsgroups that
allowed both receiving and sending of pornographic images. In
one of these e-mails, Paul discussed how easy it was to find
“young friends” by scouting single, dysfunctional parents through
Alcoholics Anonymous or local welfare offices and winning their
friendship, thereby securing access to their young sons.
On July 17, 2000, Paul pled guilty to one charge of
knowingly possessing a computer hard drive with three or more
images of child pornography that traveled through interstate
commerce, in violation of the Child Pornography Prevention Act.
See 18 U.S.C. § 2252A(a)(5)(B) (1994). The government offered
1
According to Paul, his hobbies include photography and
camera repair. He maintains that he earned about $200 monthly
purchasing broken cameras over the Internet, fixing them, and
reselling them.
3
four images as samples of the child pornography that Paul
possessed. Paul admitted that these exhibits were images he
received from the Internet and stored on his computer hard drive.
After Paul pled guilty to possession of child pornography
and was rearraigned, the court ordered the probation office to
prepare a presentence report (“PSR”). Applying section 2G2.2 of
the Sentencing Guidelines2 (“section 2G2.2”), the PSR determined
that Paul’s total offense level was 35. See U.S. SENTENCING
GUIDELINES MANUAL § 2G2.2 (1998). The PSR then factored in Paul’s
criminal history category (category I), which resulted in an
imprisonment range of 121 to 151 months. However, the PSR noted
that the statutory maximum penalty was 60 months.
At the sentencing hearing, Paul objected to the PSR’s use of
section 2G2.2, arguing that the district court should have
applied section 2G2.43 instead because he was charged with
possession of child pornography rather than trafficking in child
pornography.4 The probation officer and the government both
2
Section 2G2.2 is applicable to “Trafficking in Material
Involving the Sexual Exploitation of a Minor; Receiving,
Transporting, Shipping, or Advertising Material Involving the
Sexual Exploitation of a Minor; [and] Possessing Material
Involving the Sexual Exploitation of a Minor With Intent to
Traffic.” U.S. SENTENCING GUIDELINES MANUAL § 2G2.2 (1998).
3
Section 2G2.4 is applicable to “Possession of Materials
Depicting a Minor Engaged in Sexually Explicit Conduct.” U.S.
SENTENCING GUIDELINES MANUAL § 2G2.4 (1998).
4
According to Paul, applying section 2G2.4 would have
yielded a much shorter imprisonment range of 27 to 33 months.
4
maintained that section 2G2.2 was the appropriate guideline
because a cross-reference in section 2G2.4 requires use of
section 2G2.2 if there is indication of “intent to traffic.”5
See U.S. SENTENCING GUIDELINES MANUAL § 2G2.4 (1998). To support its
claim that Paul intended to traffic in child pornography, the
government offered five e-mails from Paul’s computer.6 Paul
5
The cross-reference reads: “[i]f the offense involved
trafficking in material involving the sexual exploitation of a
minor (including receiving, transporting, shipping, advertising,
or possessing material involving the sexual exploitation of a
minor with intent to traffic), apply §2G2.2.” U.S. SENTENCING
GUIDELINES MANUAL § 2G2.4 (1998).
6
Exhibit One was an e-mail from Ultimate Anonymity (a
business providing anonymous Internet accounts) confirming Paul’s
account.
Exhibit Two was an e-mail exchange between Paul and Stewart
Anderson on October 29, 1999, in which Anderson warned Paul not
to post on the newsgroup alt.binaries.pictures.asparagus, as this
newsgroup was considered illegal and hackers could find out the
identities of those posting messages. Anderson advised Paul to
view or download pictures rather than post to newsgroups, and
told him that it might be safe to post “innocent” pictures in a
newsgroup called alt.binaries.pictures.boys. Paul replied to
Anderson, thanking him for the advice and stating: “It was me.
I’m still very new at this and don’t understand the do’s and
don’ts. But with help for [sic] friends I’ll learn, hopefully
before I get busted for something I don’t understand.”
Exhibit Three was an e-mail exchange between Paul and an
unidentified individual calling himself “Ghost Writer.” Paul
asked Ghost Writer whether a series of symbols that he had seen
in a newsgroup was a picture or a code and how to read it. When
Ghost Writer responded that he was unsure, Paul replied: “It is
there. I think I’m doing it right. I’m not downloading anything
and I’m not posting now, Caveman clued me in on that.”
Exhibits Four and Five are e-mails from Paul to Anderson
dated October 30 and 31, 1999, in which Paul stated his desire to
give Anderson three books with titles suggesting that they
contained child pornography. Paul told Anderson that he could
pay the postage, but that otherwise the books would be a gift.
5
argued that these e-mails were inadequate to demonstrate
trafficking or intent to traffic, as the messages contain no
direct statements indicating that he sent images through the mail
or the Internet.
The district court overruled Paul’s objection, determining
that pursuant to the section 2G2.4 cross-reference, section 2G2.2
was the appropriate guideline. Because the resulting sentence
was greater than the statutory maximum, the district court
imposed the statutory maximum sentence of five years’
imprisonment, plus a three-year term of supervised release, and a
special assessment fee of $100.
The district court imposed a number of special conditions on
Paul’s supervised release term. He must “undergo a complete
psychological evaluation and/or participate in a sex
offender/mental health program as deemed necessary and approved
by the probation officer.” Paul is also directed to avoid
“direct and indirect contact with minors,” as well as “places,
establishments, and areas frequented by minors,” and is
prohibited from “engaging in any paid occupation or volunteer
service which exposes him either directly or indirectly to
minors.” The conditions further provide that Paul “shall not
have[,] possess or have access to computers, the Internet,
photographic equipment, audio/video equipment, or any item
capable of producing a visual image.” Finally, Paul is
6
instructed to “register with the sex offender registration in any
state where [he] . . . resides, is employed, carries on a
vocation, or is a student, as directed by the probation officer
and as required by law.”
On appeal, Paul challenges his conviction and sentence on
three grounds. First, Paul argues that the statute of
conviction, the Child Pornography Prevention Act (“CPPA”), is
unconstitutionally vague and overbroad. Second, he argues that
the district court improperly applied the Sentencing Guidelines
in using section 2G2.2 to determine his base offense level.
Finally, Paul challenges the conditions of his supervised
release, arguing that he was not given pre-sentence notice of the
requirement that he register as a sex offender and that the
district court abused its discretion by imposing special
conditions restricting his contact with minors and his ability to
access “computers, the Internet, photographic equipment, audio-
video equipment, or any item capable of producing a visual
image.”
II. The Constitutionality of the
Child Pornography Prevention Act
Paul contends that the language in 18 U.S.C. § 2256(8)(B)
defining “child pornography” to include an image that “appears to
be” or “conveys the impression” of minors engaging in sexually
explicit conduct is impermissibly vague and overbroad under the
First Amendment. He acknowledges that this circuit’s recent
7
precedent forecloses this facial challenge. See United States v.
Fox, 248 F.3d 394, 404-07 (5th Cir. 2001) (holding that
prohibiting possession of an image that “appears to be” or
“conveys the impression of” minors engaging in sexually explicit
conduct does not violate the First Amendment). However, Paul
points out that the Supreme Court recently granted certiorari in
Free Speech Coalition v. Reno, 198 F.3d 1083 (9th Cir. 1999),
cert. granted sub nom., Ashcroft v. Free Speech Coalition, 121
S.Ct. 876 (2001), to consider whether this language in the CPPA
is unconstitutionally vague or overbroad. Thus, he asks this
court to postpone deciding the issue until the Supreme Court
decides Free Speech Coalition.
We decline this invitation. A facial challenge to the CPPA
is foreclosed by Fox, which is the binding law of this circuit.
Moreover, as the government correctly points out, the Supreme
Court’s resolution of Free Speech Coalition will not affect the
validity of Paul’s conviction, as he was not convicted under the
portions of the statute that are under challenge in that case.
Paul’s indictment specifically references the definition of
“child pornography” contained in 18 U.S.C. § 2256(8)(A), which
defines child pornography as any visual depiction of sexually
explicit conduct where “the production of such visual depiction
involves the use of a minor engaging in sexually explicit
conduct.” This definition, unlike the definition contained in §
8
2256(8)(B) that is at issue in Free Speech Coalition, does not
contain the language that Paul asserts is constitutionally
problematic.
Delaying resolution of this constitutional challenge until
after the Supreme Court decides Free Speech Coalition would be
neither necessary nor useful, as the charges on which Paul was
indicted and to which he pled guilty reference a definitional
provision of the statute that is not challenged in Free Speech
Coalition. Accordingly, we affirm Paul’s conviction under the
CPPA.
III. The Sentencing Determination
This court reviews the district court’s application of the
Sentencing Guidelines de novo and its factual findings for clear
error. See United States v. Stevenson, 126 F.3d 662, 664 (5th
Cir. 1997). We “give due deference to the district court’s
application of the guidelines to the facts.” 18 U.S.C. § 3742(e)
(1994).7
“When sentencing a defendant, the district court must first
determine which offense guideline section is most applicable to
7
The Supreme Court recently elaborated on the meaning of
this statutory provision in United States v. Buford, 121 S.Ct.
1276 (2001). The Court held that the deference that is due under
18 U.S.C. § 3742(e) depends on the nature of the question
presented. In that case, the Court determined that deferential
review was appropriate “[i]n light of the fact-bound nature of
the legal decision, the comparatively greater expertise of the
District Court, and the limited value of uniform court of appeals
precedent.” Id. at 1281.
9
the offense of conviction, generally by reference to the
guidelines’ statutory index found at Appendix A thereto.” United
States v. Principe, 203 F.3d 849, 851 (5th Cir. 2000). The entry
in the statutory index for 18 U.S.C. § 2252A (the statute of
conviction in the instant case) refers to both section 2G2.2 and
section 2G2.4 as the applicable guidelines. If the statutory
index refers to more than one guideline section for a particular
statute, “the district court must select the most appropriate
section based upon the nature of the conduct charged in the count
for which the defendant was convicted.” Id.; see also U.S.
SENTENCING GUIDELINES MANUAL § 1B1.2 cmt. n.1 (1998).
Paul was convicted of “possession of a computer hard drive
that contained three or more images of child pornography.” Thus,
Principe and the commentary to section 1B1.2 indicate that, of
the two guidelines referenced in the statutory index for § 2252A,
the appropriate guideline for Paul’s offense is section 2G2.4
(the guideline applicable to “Possession of Materials Depicting a
Minor Engaged in Sexually Explicit Conduct”). However, section
2G2.4 contains a cross-reference instructing sentencing courts to
apply section 2G2.2 (the provision applicable to “Trafficking in
Material Involving Sexual Exploitation of a Minor; Receiving,
Transporting, Shipping, or Advertising Material Involving the
Sexual Exploitation of a Minor; [and] Possessing Material
Involving the Sexual Exploitation of a Minor with Intent to
10
Traffic”) if the possession offense involves trafficking in child
pornography, including receiving, transporting, shipping,
advertising, or possessing child pornography with intent to
traffic. In determining whether the cross-reference provision is
applicable, the sentencing court may consider other “relevant
conduct” in addition to the conduct charged in the count for
which Paul was convicted.8
The district court primarily relied upon the e-mails offered
by the government at the sentencing hearing in concluding that
section 2G2.2 was the appropriate guideline in the instant case.
The court found that the e-mail exchange between Paul and
Anderson discussing the books that Paul wanted to give to
Anderson was sufficient evidence of intent to traffic. The
district court also pointed to Paul and Anderson’s earlier e-mail
exchange regarding Paul’s posting on the “asparagus” newsgroup
and his e-mail exchange with Ghost Writer as further indications
that Paul had, at some point, posted images that he acknowledged
could get him “busted.” While there was no indication from
either of these e-mail exchanges that the “postings” in question
8
Section 1B1.3 of the Sentencing Guidelines instructs
that “cross-references in Chapter Two . . . shall be determined
on the basis of . . . all acts and omissions committed, aided,
abetted, counseled, commanded, induced, procured, or willfully
caused by the defendant . . . that occurred during the commission
of the offense of conviction, in preparation for that offense, or
in the course of attempting to avoid detection or responsibility
for that offense . . . all harm that resulted from the acts . . .
and all harm that was the object of such acts.” U.S. SENTENCING
GUIDELINES MANUAL § 1B1.3(a) (1998).
11
were images (as opposed to text messages), the district court
found that it was reasonable to infer that images were involved.
Paul contends that the district court erred in invoking
section 2G2.4’s cross-reference to section 2G2.2 because this
case did not involve trafficking in child pornography. Paul
argues that his offer to give Anderson the book collection is
insufficient to support a finding that Paul was trafficking or
intended to traffic in child pornography. He contends that
giving Anderson the books would have been a purely gratuitous
act, rather than bartering or trading, and thus cannot qualify as
trafficking. Moreover, Paul claims that he conditioned his offer
to give Anderson the books on Paul’s moving to Honduras, which
Paul maintains that he never actually intended to do. Paul
similarly argues that the October 29 e-mail exchange regarding
his posting activities on the asparagus newsgroup cannot show
trafficking or intent to traffic, as this exchange demonstrates
only that he “posted one unknown item at an unknown time” at
least seven months before he was charged in the instant case.
Paul also contends that in order for the cross-reference in
section 2G2.4 to apply, the government must prove that the items
allegedly trafficked actually contained child pornography.
Because the government did not prove that either the postings
Paul referred to in his e-mails or the books Paul offered to give
Anderson contained a “lascivious exhibition of the genitals,”
12
Paul maintains that any conclusion that these images contained
child pornography is purely speculative.
In determining whether the district court correctly applied
the Sentencing Guidelines to the facts of the instant case, this
court adopts a deferential standard of review. As the Supreme
Court indicated in Buford, deference to the district court’s
determination is appropriate when the application of a Sentencing
Guidelines provision involves an extremely fact-bound inquiry,
when the “legal results depend[] heavily upon an understanding of
the significance of case-specific details,” and when there is
correspondingly limited value in uniform appellate precedent due
to the level of factual nuance involved. 121 S.Ct. at 1280-81.
Without question, determining whether the language contained in
Paul’s e-mails adequately evidences his intent to traffic in
child pornography in light of his other “relevant conduct” is a
highly fact-bound inquiry. Consequently, the district court’s
familiarity with the details of the case is extremely valuable to
this determination, and the precedential effect of the result is
minimal. Under Buford, deferential review is therefore
appropriate.
The district court determined that Paul’s conduct went
beyond mere possession and constituted “possession with intent to
traffic.” There are two implicit determinations underlying this
conclusion that warrant detailed analysis: (1) the determination
13
that the e-mails were indicative of an intent to “traffic,” and
(2) the determination that the materials that Paul intended to
traffic constituted “child pornography” under the statute of
conviction.
The district court’s conclusion that Paul “intended to
traffic” in child pornography is supported by the evidence.
Initially, we agree with the district court’s determination that
Paul’s offer to send three child pornography books to Anderson in
exchange for the cost of postage was sufficient to demonstrate
his “intent to traffic” in child pornography. The term
“traffic,” while not defined in the Sentencing Guidelines,
traditionally encompasses both buying and selling commodities for
money and exchanging commodities by barter. See United States v.
Horn, 187 F.3d 781, 791 (8th Cir. 1999) (citing May v. Sloan, 101
U.S. 231, 237 (1879)); see also BLACK’S LAW DICTIONARY 1495 (6th ed.
1990) (defining “traffic” as “commerce; trade; sale or exchange
of merchandise, bills, money, and the like . . .”). While Paul
characterizes the proposed transaction with Anderson as a “gift,”
we defer to the district court’s implicit determination that the
proposed transaction was sufficiently akin to a sale or exchange
of merchandise to constitute proposed “trafficking.”
Moreover, even if the transaction involving the books was
not sufficient to indicate Paul’s intent to traffic, the record
reveals that Paul engaged in actual trafficking as well. Paul’s
14
computer contained hundreds of images of child pornography
obtained from the Internet.9 In addition, Paul’s e-mail
exchanges with both Anderson and Ghost Writer indicate that, at
some point in time, he posted material to child pornography
newsgroups as well. As the Second Circuit explained in United
States v. Johnson, because exchange or barter is a form of
trafficking, sending and receiving pornographic images via the
Internet constitutes “trafficking” sufficient to invoke the
cross-reference in section 2G2.4. See 221 F.3d 83, 98 (2d. Cir.
2000) (finding that “trafficking” occurred when the defendant
exchanged child pornography with others by sending and receiving
images over the Internet).
While Paul may or may not have intended to barter particular
images with specific persons when he posted and downloaded
images, his participation in the free exchange of images that is
characteristic of online child pornography communities
nonetheless constitutes trafficking. The consequences of this
type of Internet trafficking are the same as (if not worse than)
the consequences of a more direct, person-to-person barter or
exchange, and application of the 2G2.4 cross-reference is equally
justified. As the Johnson court explained, “the guidelines
expressly contemplate more severe punishment by application of
9
At the time that Paul pled guilty to the instant
offense, he conceded that he obtained the images introduced by
the government from the Internet.
15
Section 2G2.2 if the conduct involved something more than ‘simple
possession.’” Id. Sending and receiving images of child
pornography over the Internet justifies this harsher punishment
because “such dissemination of child pornography is likely to
expand the market for it and thus to cause more harm than mere
possession.” Id. Because we agree with the Second Circuit that
sending and receiving images over the Internet constitutes
“trafficking,” we find that the district court had adequate
circumstantial evidence to support its conclusion that Paul more
likely than not trafficked in (or intended to traffic in) child
pornography.
The second assumption underlying the district court’s
application of the 2G2.4 cross-reference is that the particular
images that Paul trafficked or intended to traffic involved
sexual exploitation of a minor. Paul is correct that the
government bears the burden of demonstrating that section 2G2.4's
cross-reference to section 2G2.2 is applicable. However, the
government must prove the factors underlying a sentencing
determination only by a preponderance of the evidence. See
United States v. Gaytan, 74 F.3d 545, 558 (5th Cir. 1996) (“It is
well-established that the preponderance standard is the
applicable standard for sentencing purposes.”); see also United
States v. Pewenofkit, 173 F.3d 865 (10th Cir. 1999) (unpublished
table decision), available at 1999 WL 169429 (applying a
16
preponderance of the evidence standard when determining the
applicability of a cross-reference provision). Given the
deferential standard of review, there is adequate circumstantial
evidence to support the district court’s determination that the
government proved by a preponderance of the evidence that the
images contained child pornography.
While the FBI did not find the books that Paul offered to
Anderson in the search of Paul’s house, the titles of the books
(“Boys Will Be Boys,” “Young Aphrodites,” and “Children of Many
Lands”) suggest that they contained child pornography. Moreover,
Paul described these books in his e-mail to Anderson as out-of-
print “BL” (or “boy lover”) books. Finally, the images that were
found in the search of Paul’s residence – including images of
children’s genitals, images of children engaged in sexual
intercourse, and sadistic images of infants – provide
circumstantial evidence that the books that Paul wanted to give
Anderson contained images of a similar nature.
In addition, while the e-mail exchange between Paul and
Anderson addressing Paul’s posting activities on the asparagus
newsgroup does not contain an explicit acknowledgment that Paul
had posted images, the government presented testimony at the
sentencing determination indicating that “alt.binary.pictures”
newsgroups are generally used for posting pictures. Moreover, in
Anderson’s e-mail warning Paul that the asparagus newsgroup was
17
an illegal newsgroup, he informed Paul that it was “safer” just
to watch or download pictures rather than to “get involved by
posting” and suggested that if Paul wanted to post, he should
post “innocent” pictures at another newsgroup called
alt.binaries.pictures.boys. This language also provides evidence
that the posting referred to in this e-mail exchange contained
child pornography.
While Paul is correct that the district court cannot make
sentencing determinations based on pure speculation, there is
sufficient circumstantial evidence here to support the district
court’s determination that the images in question more likely
than not contained child pornography. Accordingly, we find that
the district court acted appropriately in applying the cross-
reference contained in section 2G2.4. We affirm the portion of
the district court’s sentence prescribing Paul’s term of
imprisonment.
IV. The Special Conditions of Supervised Release
A district court has wide discretion in imposing terms and
conditions of supervised release. However, this discretion is
limited by 18 U.S.C. § 3583(d), which provides that a court may
impose special conditions of supervised release only when the
conditions meet certain criteria.10 First, special conditions
10
These statutory criteria have also been incorporated
into the Sentencing Guidelines. See U.S. SENTENCING GUIDELINES MANUAL
§ 5D1.3(b) (1998).
18
of supervised release must be reasonably related to the factors
set forth in § 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D).
See 18 U.S.C. § 3583(d) (1994). These factors include: (1) “the
nature and circumstances of the offense and the history and
characteristics of the defendant,” (2) the need “to afford
adequate deterrence to criminal conduct,” (3) the need “to
protect the public from further crimes of the defendant,” and (4)
the need “to provide the defendant with needed [training],
medical care, or other correctional treatment in the most
effective manner.”11 18 U.S.C. § 3553(a)(1)-(2) (1994). In
addition, supervised release conditions cannot involve a greater
deprivation of liberty than is reasonably necessary to achieve
the latter three statutory goals. See 18 U.S.C. § 3583(d)
(1994). We review the district court’s determination of
supervised release conditions for abuse of discretion. United
States v. Coenen, 135 F.3d 938, 940 (5th Cir. 1998).
A. The Restrictions on Contact with Minors
Paul challenges the special conditions requiring him to
avoid “direct and indirect contact with minors,” prohibiting him
from “engaging in any paid occupation or volunteer service which
exposes him either directly or indirectly to minors,” and
instructing him to “avoid places, establishments, and areas
11
This criterion is not relevant in the instant case, as
Paul does not challenge the condition requiring him to
“participate in a sex offender/mental health program as deemed
necessary and approved by the probation officer.”
19
frequented by minors.” He argues that these restrictions are
impermissibly vague and do not provide him with fair notice of
the prohibited conduct.
Paul also contends that these associational restrictions are
overly broad.12 He argues that the prohibition on “indirect”
contact with minors limits him from visiting “a restaurant [or]
any retail establishment such as a grocery store or a department
store” due to the possibility that he might indirectly come into
contact with minors. Paul similarly points out that he could
inadvertently violate the terms of his supervised release through
chance encounters. While he concedes that courts generally
interpret associational restrictions to exclude incidental
contact, Paul argues that the provision prohibiting “indirect”
contact with minors encompasses such incidental or chance
encounters.
A number of our sister circuits have upheld restrictions on
contact with minors similar to those at issue in the instant
case. See, e.g., United States v. Loy, 237 F.3d 251, 267-69 (3d
Cir. 2001) (upholding a condition barring the offender from all
“unsupervised contact with minors”); United States v. Bee, 162
F.3d 1232, 1235-36 (9th Cir. 1998) (upholding a condition that
12
We interpret this “overbreadth” claim to argue that the
supervised release condition violates the second statutory
criterion outlined above (i.e., the requirement that supervised
release conditions must involve no greater deprivation of liberty
than is reasonably necessary in light of the need to protect the
public and prevent recidivism).
20
the offender “not have contact with children under the age of 18
unless approved by [his] probation officer” and that he “not
loiter within 100 feet of school yards, parks, playgrounds,
arcades, or other places primarily used by children under the age
of 18"). But see United States v. Peterson, 248 F.3d 79, 86 (2d
Cir. 2001) (finding that a restriction prohibiting the offender
from “being on any school grounds, child care center, playground,
park, recreational facility, or in any area in which children are
likely to congregate” was ambiguous and remanding to the
sentencing court for clarification). The primary differences
between the language of the provisions governing Paul’s release
and the language of the provisions at issue in Bee and Peterson
are the prohibition on “indirect” contact with minors (i.e., the
basis of Paul’s “overbreadth” claim) and the failure to specify
particular locations where Paul is prohibited from going (i.e.,
the basis of Paul’s vagueness claim).
We first address Paul’s overbreadth claim. Contrary to
Paul’s assertion, the prohibition on “indirect” contact with
minors does not encompass chance or incidental encounters with
children. As the Third Circuit noted in Loy, “[a]t this point,
it is well established that associational conditions do not
extend to casual or chance meetings.” 237 F.3d at 269 (citing
Arciniega v. Freeman, 404 U.S. 4, 4 (1971) (per curiam)). To the
extent that the prohibition on “indirect” contact in the instant
21
case might be interpreted to encompass such casual encounters,
this court is well within its authority to interpret the
restriction to exclude such casual or incidental encounters. See
id. (interpreting the restriction at issue to exclude chance
encounters). So construed, the inclusion of the word “indirect”
in Paul’s supervisory restrictions does not render these
restrictions unduly broad.
A more difficult question is presented by Paul’s vagueness
challenge to the supervised release condition instructing him to
avoid “places, establishments, and areas frequented by minors.”
Restrictions on an offender’s ability to interact with particular
groups of people, to hold certain types of employment, and to
frequent certain places must provide “fair notice” of the
prohibited conduct. See Loy, 237 F.3d at 262 (noting that the
same principles of due process and notice that apply to criminal
statutes apply to supervised release conditions).
In Peterson, the Second Circuit analyzed a supervised
release condition that is somewhat similar to Paul’s. In that
case, the court held that a restriction prohibiting the offender
from being “on any school grounds, child care center, playground,
park, recreational facility, or in any area in which children are
likely to congregate” was impermissibly vague. However, it is
important to note that the court in Peterson did not find that
the phrase “in any area in which children are likely to
22
congregate” was vague. Rather, the Second Circuit remanded the
case to the sentencing court because the court found that it was
unclear from the language of the restriction whether the general
clause modified the preceding list of specific locations.
Peterson, 248 F.3d at 86. The court determined that if the
phrase “in any area in which children are likely to congregate”
did not modify the previous list, then the prohibition would not
be reasonably related to the defendant’s offense, as the
restriction would prohibit the defendant from visiting parks or
recreational facilities not frequented by children. See id.Paul’s supervised release condition is not ambiguous in the
manner of the provision at issue in Peterson. It is clear from
the plain language of Paul’s restriction that he is permitted to
visit places, establishments, or areas that are not frequented by
minors. The only potential vagueness problem with the
restriction at issue in the instant case is whether a reasonable
person can predict which specific locations Paul is permitted to
frequent.
This lack of specificity is not necessarily fatal to the
validity of the restriction. As the First Circuit noted in
United States v. Gallo, while a probationer “is entitled to
notice of what behavior will result in a violation, so that he
may guide his actions accordingly . . . [c]onditions of probation
do not have to be cast in letters six feet high, or to describe
every possible permutation, or to spell out every last,
23
self-evident detail.” 20 F.3d 7, 12 (1st Cir. 1993). Conditions
of probation “may afford fair warning even if they are not
precise to the point of pedantry. In short, conditions of
probation can be written — and must be read — in a commonsense
way.” Id.Certainly, it would be impossible to list within the text of
Paul’s condition every specific location that he is prohibited
from frequenting during the term of his release. Sentencing
courts must inevitably use categorical terms to frame the
contours of supervised release conditions. Such categorical
terms can provide adequate notice of prohibited conduct when
there is a commonsense understanding of what activities the
categories encompass. Indeed, it is well established that the
requirement of reasonable certainty “does not preclude the use of
ordinary terms to express ideas which find adequate
interpretation in common usage and understanding.” Birzon v.
King, 469 F.2d 1241, 1243 (2d Cir. 1972) (quoting Sproles v.
Binford, 286 U.S. 374, 393 (1932)). We find that there is
sufficient common understanding of the types of locations that
constitute “places, establishments, and areas frequented by
minors” to satisfy the constitutional requirement of reasonable
certainty in this case.13
13
A number of other courts have reached the same
conclusion in evaluating conditions of probation or supervised
release that are materially similar to Paul’s restrictions. See,
e.g., State v. Riles, 957 P.2d 655, 666 (Wash. 1998) (finding
24
The supervised release conditions restricting Paul’s contact
with minors are neither impermissibly vague nor unreasonably
broad. These restrictions are reasonably necessary in light of
the nature and circumstances of Paul’s offense and the legitimate
need to prevent recidivism and protect the public. The district
court thus did not abuse its discretion in imposing these
restrictions.
B. The Restrictions on Access to Computers and the Internet
Paul argues that the condition of his supervised release
prohibiting him from having, possessing, or having access to
“computers, the Internet, photographic equipment, audio/video
equipment, or any item capable of producing a visual image” is
that a restriction instructing the defendant to “avoid places
where minors congregate” and not to “frequent places where minors
are known to congregate” was not impermissibly vague); cf. Britt
v. State, 775 So.2d 415, 416-17 (Fla. Dist. Ct. App. 2001)
(finding that a restriction prohibiting the defendant from doing
“volunteer work, employment, or community activity at any school,
daycare center, park, playground, or other place where children
regularly congregate” and prohibiting the defendant from “living
within 1,000 feet of a school, daycare center, park, playground,
or other place where children regularly congregate” was not
impermissibly vague) (emphasis added); State v. Simonetto, 606
N.W.2d 275, 276-77 (Wis. Ct. App. 1999) (finding that a
restriction instructing the defendant “not to go where children
may congregate” was not impermissibly vague when regulatory
guidance indicated that this restriction included, but was not
limited to, schools, day care centers, playgrounds, parks,
beaches, pools, shopping malls, theaters, or festivals). But see
Carswell v. State, 721 N.E.2d 1255, 1260 (Ind. Ct. App. 1999)
(concluding that a condition prohibiting the defendant from
residing within two blocks of “any area where children
congregate” was impermissibly vague).
25
unreasonably broad.14 We will address the restriction on Paul’s
access to computers and the Internet in this section. We will
discuss the ban on access to photographic equipment and
audio/video equipment in the following section.
Paul contends that a blanket prohibition on computer or
Internet use is excessively broad and cannot be justified based
solely on the fact that his offense involved a computer and the
Internet. He points out that computers and Internet access have
become indispensable communication tools in the modern world and
that the restriction imposed by the district court would prohibit
him from accessing computers and the Internet for legitimate
purposes, such as word processing and research.
The government responds that the order prohibiting Paul from
using a computer or the Internet is rationally related to his
offense and that such an order is an appropriate public
protection measure. The government points out that Paul’s
computer contained over 1200 images of child pornography and
contained evidence that Paul had used the Internet to access
child pornography chat rooms, bulletin boards, and newsgroups.
According to the government, Paul also used his e-mail to advise
fellow consumers of child pornography how to “scout” single,
14
Again, we interpret this “overbreadth” claim to argue
that the supervised release condition is inappropriate under 18
U.S.C. § 3583(d) because it involves greater deprivation of
liberty than is reasonably necessary in light of the need to
protect the public and prevent recidivism.
26
dysfunctional parents and gain access to their children and to
solicit the participation of like-minded individuals in trips to
“visit” children in Mexico. Under these circumstances, the
government argues, restricting Paul’s access to computers and the
Internet is reasonably tailored to his offense and conviction and
“serves the dual purpose of deterrence and public protection.”
The government correctly points out that a number of courts
have upheld Internet and computer-use prohibitions as conditions
of supervised release. See, e.g., United States v. Crandon, 173
F.3d 122, 127-28 (3d Cir. 1999) (upholding an Internet
restriction as a condition of supervised release for a child
pornography offender); United States v. Mitnick, 145 F.3d 1342(unpublished table decision), available at 1998 WL 255343 (9th
Cir. 1998) (determining that the district court did not abuse its
discretion in prohibiting a defendant convicted of offenses
related to computer “hacking” from accessing “computers,
computer-related equipment, and certain telecommunications
devices” during his probationary period without prior approval of
his probation officer).15
15
While at least one circuit has rejected a probationary
prohibition on computer and Internet usage, the facts at issue in
that case were substantially dissimilar to the instant case. See
Peterson, 248 F.3d at 81-83 (rejecting a probationary condition
dictating that the defendant “shall not possess, purchase, or use
a computer or computer equipment . . . except for employment
purposes”). In Peterson, the defendant had been convicted of
bank larceny, but a number of his conditions of supervised
release, including the computer and Internet restrictions, were
actually related to his prior conviction for a sex offense rather
27
Most factually analogous to the instant case is Crandon,
wherein a defendant convicted of receiving child pornography
challenged the district court’s imposition of a supervised
release condition dictating that he could 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 U.S. Probation
Office.” 173 F.3d at 125. The district court found that this
restriction on the defendant’s Internet access was “reasonably
related to [his] . . . criminal activities, to the goal of
deterring him from engaging in further criminal conduct, and to
protecting the public,” in light of the fact that the defendant
had once used the Internet as a means to develop an illegal
sexual relationship with a young girl. Id. at 127. The court
was unpersuaded by the defendant’s argument that the Internet
prohibition was overly broad and would unnecessarily restrict his
career opportunities and his freedoms of speech and expression.
Noting that supervised release conditions restricting employment
and First Amendment freedoms are permissible if the statutory
tailoring requirements are satisfied, the court ultimately
concluded that the restriction on the defendant was not overly
than to the bank larceny conviction at issue in that case. The
Peterson court accordingly determined that such restrictions were
neither reasonably related to the defendant’s conviction nor
reasonably necessary to the statutory sentencing objectives. See
id.28
broad despite its effects on his business opportunities and
expressive activities.
As in Crandon, the supervised release condition at issue in
the instant case is reasonably related to Paul’s offense and to
the need to prevent recidivism and protect the public. The
record reveals that Paul has in the past used the Internet to
encourage exploitation of children by seeking out fellow “boy
lovers” and providing them with advice on how to find and obtain
access to “young friends.” Restricting his access to this
communication medium clearly serves the dual statutory goals of
protecting the public and preventing future criminal activity.
While the condition at issue in the instant case is broader than
the restriction at issue in Crandon because it prohibits access
to both computers and the Internet and it contains no proviso
permitting Paul to use these resources with the approval of his
probation office, we cannot say that that the district court
abused its discretion in determining that an absolute ban on
computer and Internet use was reasonably necessary to protect the
public and to prevent recidivism.
In arguing that the district court’s computer and Internet
prohibition was an abuse of discretion, Paul points to the Tenth
Circuit’s decision in United States v. White, 244 F.3d 1199 (10th
Cir. 2001). In White, the court of appeals remanded to the
sentencing court a special condition of supervised release that
29
was substantially similar to Paul’s condition.16 While the Tenth
Circuit was unclear about the scope of the restriction at issue
in that case, it indicated that if the condition were read to
absolutely ban all Internet and computer use, it would be
“greater than necessary” to serve the goals of supervised release
outlined in 18 U.S.C. § 3583(d). Id. at 1206. The Tenth Circuit
reasoned that Crandon did not dictate a different result. While
acknowledging that the Third Circuit did uphold an Internet
restriction in Crandon, the White court noted that the Crandon
court did not impose an absolute ban on computer or Internet
access, despite the fact that the defendant in Crandon (unlike
the defendant in White) had clearly used the Internet to
“initiate and facilitate a pattern of criminal conduct and
victimization that produced an immediate consequence and directly
injured the victim” in that case. Id. at 1205.
We find the Tenth Circuit’s reasoning in White unpersuasive.
Initially, we note that there is some evidence that Paul did in
fact use the Internet to “initiate and facilitate a pattern of
criminal conduct and victimization,” and thus that White can be
distinguished on these grounds. More importantly, we reject the
White court’s implication that an absolute prohibition on
16
The supervised release condition at issue in White
dictated that the defendant (who was convicted of receiving child
pornography) “shall not possess a computer with Internet access
throughout his period of supervised release.” White, 244 F.3d at
1201.
30
accessing computers or the Internet is per se an unacceptable
condition of supervised release, simply because such a
prohibition might prevent a defendant from using a computer at
the library to “get a weather forecast” or to “read a newspaper
online” during the supervised release term. Id. We find that
such a supervised release condition can be acceptable if it is
reasonably necessary to serve the statutory goals outlined in 18
U.S.C. § 3583(d). In the instant case, the district court had
strong evidentiary support for its determination that a strict
ban on computer and Internet use was reasonably necessary.
Moreover, Paul has articulated no specific objections to the
computer and Internet ban suggesting how his occupational affairs
or his expressive activities will be adversely impacted by the
fact that he will be unable to “use a computer or the Internet at
a library, cybercafe or . . . an airport” during the term of his
supervised release.17 We conclude that the district court did
not abuse its discretion in imposing this condition of supervised
release.
C. The Restrictions on “photographic equipment, audio/video
equipment, or any item capable of producing a visual image”
Paul also challenges the restrictions on his ability to use
photographic equipment and audio/video equipment. He argues that
this prohibition is not reasonably related to his offense because
17
The record reveals that Paul has primarily been
employed in recent years as a truck driver.
31
there is no indication that he used cameras to further the crime
for which he was convicted. He also maintains that this
restriction, like the computer restriction, is unreasonably broad
because it involves a greater deprivation of liberty than is
reasonably necessary to achieve the legitimate goals of his
supervised release. The government responds that this
restriction is necessary to serve public safety goals and to
deter Paul from committing future criminal conduct.
We reject Paul’s contention that this condition should be
vacated because it is not reasonably related to his offense. As
detailed above, special conditions of supervised release are
evaluated to determine if they are reasonably related to four
different factors: (1) “the nature and circumstance of the
offense and the history and characteristics of the defendant,”
(2) the need “to afford adequate deterrence to criminal conduct,”
(3) the need “to protect the public from further crimes of the
defendant,” and (4) the need “to provide the defendant with
needed [training], medical care, or other correctional treatment
in the most effective manner.” 18 U.S.C. § 3553(a)(1)-(2)
(1994). Paul appears to be arguing that the ban on photographic
equipment and audio/video equipment is invalid because it is not
reasonably related to the first of these criteria, but he
evaluates the condition only with respect to the conduct
underlying his offense, neglecting to consider whether the
condition is reasonably related to his “history and
32
characteristics.”
Information in the record about Paul’s history and
characteristics supports the district court’s determination that
it was both reasonable and necessary to prohibit Paul from
accessing photographic equipment and audio/video equipment during
his term of supervised release. The search of Paul’s apartment
revealed photographs of naked children, including some children
that were identified as being local neighborhood children.
Moreover, the materials found in Paul’s apartment advertising his
“medical” examinations and lice removal services provide further
evidence that he likely engaged in production (not mere
possession) of child pornography in the past. In light of this
information, a supervised release condition limiting Paul’s
ability to create images of children is unquestionably “related
to” his history and characteristics.
The district court sufficiently demonstrated why this
prohibition is also reasonably related to a legitimate need to
protect the public and prevent recidivism. As the district judge
noted at the sentencing hearing, “to the extent that . . . I’m
concerned about exploitation of children, especially if they are
children who are being approached under the auspices of medical
care, I’m concerned about having any kind of photographic
equipment that would allow you to exploit that situation.” The
restriction on Paul’s ability to access photographic and audio-
video equipment is thus based on the district court’s valid
33
concern that Paul could use such equipment to exploit children in
the future, and the condition is reasonably related to those
concerns.
Paul contends that even if this condition is related to the
appropriate statutory factors, it is broader than necessary to
serve these goals. While the district court made no explicit
finding in support of its implicit determination that this
condition was necessary to promote public safety and to prevent
Paul from repeating his crimes, there is ample evidence in the
record supporting this determination. Moreover, the only
specific objection to this condition that Paul raises is that the
prohibition will prevent him from pursuing his interests in
photography and repairing cameras. As these interests are mere
hobbies, the detrimental impact of this restriction appears
slight.18 We cannot say that the district court abused its
18
If these interests were Paul’s primary means of
supporting himself, a supervised release condition restricting
his ability to engage in these occupations would be subject to a
somewhat higher standard of scrutiny under the Sentencing
Guidelines. An occupational restriction is valid only if “a
reasonably direct relationship exist[s] 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 unlawful conduct similar to that for
which the defendant was convicted.” U.S. SENTENCING GUIDELINES MANUAL
§ 5F1.5 (1998). Such restrictions should be imposed only “for
the minimum time and to the minimum extent necessary to protect
the public.” Id. Despite this higher standard, conditions of
supervised release imposing occupational restrictions are
routinely upheld. See United States v. Goodman, 232 F.3d 902(10th Cir. 2000) (unpublished table decision), available at 2000
34
discretion in determining that the condition of supervised
release restricting Paul’s access to photographic and audio/video
equipment was necessary to protect the public and to prevent Paul
from committing future criminal conduct. Thus, we affirm this
condition of supervised release.
4. The Sex Offender Registration Requirement
Finally, Paul argues that the district court erred in not
affording him pre-sentence notice before imposing the sex
offender registration requirement as one of the conditions of his
supervised release. Paul maintains that under this court’s
decision in Coenen, 135 F.3d at 943, a defendant is entitled to
pre-sentencing notice that the court is considering requiring sex
offender registration as a condition of supervised release. Paul
did not raise this objection at the sentencing proceeding, and
WL 1616452 (upholding a condition prohibiting the defendant from
self-employment or employment as a telemarketer when the
defendant’s offense arose from a telemarketing scheme); United
States v. Choate, 101 F.3d 562 (8th Cir. 1996) (upholding a
condition prohibiting the defendant from self-employment because
the restriction was reasonably related to the defendant’s wire
fraud offenses); Malone v. United States, 502 F.2d 554 (9th Cir.
1974) (upholding a condition prohibiting the defendant from
accepting employment that directly or indirectly associated him
with any Irish organization or movement because the condition was
reasonably related to his conviction for exporting guns to the
Irish Republic Army).
In the instant case, while Paul has at times sold the
cameras that he repairs for extra money, it is clear from the
record that photography and camera repair are merely his hobbies
and that neither interest rises to the level of an occupation.
Under such circumstances, restrictions on Paul’s ability to
pursue these recreational interests are unquestionably valid if
they comply with the less strict statutory standards of 18 U.S.C.
§ 3583(d).
35
thus plain error review is appropriate. See United States v.
Lopez, 923 F.2d 47, 49 (5th Cir. 1991).
The government argues that pre-sentence notice was provided
because the registration condition was set out in the probation
officer’s sentencing recommendation attached to the PSR. The
record supports this assertion. Moreover, the government
correctly points out that even if this information had not been
attached to the PSR, Paul nevertheless would have had notice of
this condition. The Sentencing Guidelines state that such a
provision is a mandatory condition of supervised release under 18
U.S.C. § 3583(a) for anyone convicted of a sexual offense. See
U.S. SENTENCING GUIDELINES MANUAL § 5D1.3 n.1 (1998). Coenen is
distinguishable on this basis. Coenen was decided prior to the
effective date of the amendment to 18 U.S.C. § 3583 making this
condition mandatory.19 The registration requirements at issue in
Coenen were imposed pursuant to a “catch all” provision in the
Sentencing Guidelines that did not necessarily provide the
defendant with notice of the specific registration requirements
that the sentencing court imposed. Coenen, 135 F.3d at 943. In
19
While Paul maintains that he was sentenced under the
1998 Sentencing Guidelines Manual, which does not contain such a
mandatory provision, the government correctly points out that the
footnote to § 5D1.3 in the 1998 Guidelines Manual explicitly
mentions a recent statutory change to 18 U.S.C. § 3583 requiring
registration for persons convicted of sexual offenses as a
mandatory condition of supervised release and notes that the
change becomes effective one year after November 26, 1997. See
U.S. SENTENCING GUIDELINES MANUAL § 5D1.3 n.1 (1998).
36
the instant case, the language in the Sentencing Guidelines
indicating that registration is a mandatory condition of
supervised release for sex offenders provided adequate notice of
the particular conditions that were ultimately imposed.
In light of these considerations, it is apparent that the
district court did not plainly err in imposing the sex offender
registration requirement at the sentencing proceeding. We
affirm this special condition of supervised release.
III. Conclusion
For the foregoing reasons, we AFFIRM Paul’s conviction and
his sentencing determination, including the conditions of his
supervised release.
37