United States v. Joseph Lacoste , 821 F.3d 1187 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-30001
Plaintiff-Appellee,
D.C. No.
v. 6:11-cr-60048-AA-1
JOSEPH ANTHONY LACOSTE,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, Chief District Judge, Presiding
Argued and Submitted March 11, 2016
Portland, Oregon
Filed May 12, 2016
Before: Marsha S. Berzon and Paul J. Watford, Circuit
Judges, and Donald E. Walter,* Senior District Judge.
Opinion by Judge Watford
*
The Honorable Donald E. Walter, Senior District Judge for the U.S.
District Court for the Western District of Louisiana, sitting by designation.
2 UNITED STATES V. LACOSTE
SUMMARY**
Criminal Law
The panel vacated conditions of supervised release
prohibiting the defendant from using the Internet without
prior approval from his probation officer and precluding him
from residing in certain counties upon his release from
prison, in a case in which the defendant pleaded guilty to
conspiracy to commit securities fraud.
Reviewing for plain error, the panel held that the facts of
this case do not permit a total ban on Internet access, where
the defendant’s use of the Internet played only a tangential
role in his commission of the underlying fraud offense, the
defendant does not have a history of using the Internet to
commit other offenses, and nothing in the record suggests that
his use of the Internet to post disparaging comments about
some of his victims rose to the level of a criminal offense.
The panel wrote that the proviso allowing the defendant to
use the Internet so long as he first obtains his probation
officer’s approval does not save what is otherwise a plainly
overbroad restriction on his liberty. The panel remanded for
the district court to craft a more narrowly-tailored condition
if it concludes that such a condition is warranted and valid.
Reviewing for abuse of discretion, the panel held that
simply declaring that the defendant is likely to resume a life
of crime if he returns to a given area is not enough to support
a residency restriction, unless the reasons are obvious from
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. LACOSTE 3
the record. The panel held that the residency restriction is
also flawed because the record does not make clear why such
a restriction, if one is warranted, should encompass two
counties beyond the counties around which the district court’s
stated concerns revolve. The panel could not uphold the
restriction on the basis of the community’s need to heal,
where the defendant will not return to the community until
2019 after he serves his prison sentence for conduct that
occurred in 2006 and 2007. The panel instructed that if the
district court seeks to reimpose the condition on remand, it
should explain more fully its reasons for doing so.
The panel rejected the defendant’s challenges to the
validity of his conviction and the length of his prison sentence
in an unpublished memorandum.
COUNSEL
Robert Warren Rainwater (argued), Rainwater Law Group,
Portland, Oregon, for Defendant-Appellant.
Scott Edward Bradford (argued), Assistant United States
Attorney; Kelly A. Zusman, Appellate Chief, United States
Attorney’s Office; and Billy J. Williams, Acting United
States Attorney, Portland, Oregon, for Plaintiff-Appellee.
4 UNITED STATES V. LACOSTE
OPINION
WATFORD, Circuit Judge:
Joseph LaCoste pleaded guilty to one count of conspiracy
to commit securities fraud in violation of 18 U.S.C. § 371.
The district court sentenced him to 60 months in prison
followed by a three-year term of supervised release. In an
unpublished memorandum, we reject LaCoste’s challenges to
the validity of his conviction and the length of his prison
sentence. Here we resolve LaCoste’s challenges to two of the
supervised release conditions the district court imposed: one
prohibiting him from using the Internet without prior
approval from his probation officer, the other precluding him
from residing in certain counties upon his release from
prison.
I
Not much is needed by way of background. LaCoste
solicited money from individuals to invest in various real
estate projects in Oregon. In soliciting the money, LaCoste
was not fully candid about his background, and after the
projects ran into financial trouble he misled investors about
the solvency of the projects. The government charged
LaCoste with (among other offenses) conspiracy to commit
securities fraud, securities fraud, bankruptcy fraud, and
multiple counts of mail and wire fraud. LaCoste agreed to
plead guilty to the conspiracy charge in exchange for
dismissal of the remaining charges.
At sentencing, the court heard from five individuals—two
victims of the fraud and three supporters of LaCoste. The
remarks by these individuals suggested that LaCoste’s
UNITED STATES V. LACOSTE 5
criminal conduct had caused significant financial and
emotional strife among residents of Albany, Oregon, the
community in which LaCoste lived. In addition, when
discussing LaCoste’s post-indictment behavior, one of the
victims stated: “When I did not respond to his—his letters,
I would get—we would go on the Internet, and on Craig’s
List on rants and raves, on church—on Sundays, there would
be comments about my husband and myself in church. I
don’t know anybody else that would do that except
[LaCoste].”
That comment appeared to form the sole basis for the
district court’s decision, at the end of the hearing, to impose
the first of the challenged supervised release conditions:
“[Y]ou shall have no Internet access or posting ability on any
Internet device unless [you receive] prior approval from the
probation officer.” (The written judgment states the
condition in these terms: “The defendant is prohibited from
using the internet without the prior approval of the U.S.
Probation Officer.”) The court gave the following
explanation for imposing this condition: “If, in fact, there are
postings at this point, and when you come out we’ll revisit
that provision, because what I want [to] do is de-escalate
what may be happening in the community and you’re not to
have any access unless you’re given specific permission to
have access through probation and through ways in which we
can secure who you’re communicating with.”
The court also imposed a residency restriction as a
condition of supervised release: “And, finally, you shall not
reside in Linn, Benton, Lane, or Marion Counties, and you
shall find—when you return to the community, there will be
a placement and we will take a look at where it will be at that
time.” (The written judgment states that LaCoste “shall not
6 UNITED STATES V. LACOSTE
be in Linn, Benton, Lane or Marion Counties without prior
approval of the U.S. Probation Officer.” Given the conflict
between the two, the oral pronouncement controls. See
United States v. Allen, 157 F.3d 661, 668 (9th Cir. 1998).)
The district court gave two reasons for imposing this
condition: (1) to ensure that LaCoste did not resume his
criminal behavior; and (2) to give the community in which he
lived a chance to heal. The court stressed in particular that it
did not want LaCoste to return to Albany:
So one of the provisions I have in here
that I have entertained is I don’t want you
necessarily going back and living in that
community while you’re on supervised
release. You need to start fresh and get out of
that community.
I don’t think it’s healthy. I don’t think
anybody trusts. I think it only exacerbates
things. And I think you need to start over and
get a job and lead a different life.
So when I looked at this last night, I
circled Linn, Benton, Lane, and Marion
County as places that you’re not to do your
supervised release. You’re to find another
community because it’s too much—there’s
too much baggage, too much likelihood to get
you back being the same old guy with those
same old behaviors.
And on balance, for the community’s
sake, it gives them a chance to heal, instead of
taking sides in the community.
UNITED STATES V. LACOSTE 7
LaCoste challenges both the Internet-use restriction and
the residency restriction. Neither of those supervised release
conditions had been recommended in the Presentence Report
or suggested by the government, so the district court’s
remarks at sentencing provide the only explanation for why
the conditions might be warranted. LaCoste’s lawyer
objected to the residency restriction but not to the Internet-use
restriction.
II
We address the Internet-use restriction first. Because
LaCoste failed to object to this condition at sentencing, plain
error review applies. United States v. Barsumyan, 517 F.3d
1154, 1160 (9th Cir. 2008); see Fed. R. Crim. P. 52(b). To
prevail, he must show that the district court’s error was plain
and that it affected his substantial rights. If he makes that
showing, we have the discretion to correct the error if it
“‘seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.’” Id. (quoting United States v.
Olano, 507 U.S. 725, 732 (1993)). We conclude that relief is
warranted under this standard.
District judges enjoy broad discretion in fashioning the
conditions needed for successful supervision of a defendant,
and we owe substantial deference to the choices they make.
That is as it should be, since district judges gain far more
familiarity with the defendant’s criminal conduct and life
circumstances than appellate judges do. Congress has
nonetheless set limits on the exercise of that discretion, which
we are bound to enforce. A district judge may impose any
supervised release condition she deems appropriate, subject
to three primary constraints. First, the condition must be
reasonably related to the nature and circumstances of the
8 UNITED STATES V. LACOSTE
offense, the history and characteristics of the defendant, or
the sentencing-related goals of deterrence, protection of the
public, or rehabilitation. 18 U.S.C. §§ 3583(d)(1),
3553(a)(1), (a)(2)(B)–(D); United States v. Rearden, 349 F.3d
608, 618 (9th Cir. 2003). Second, the condition must be
consistent with the Sentencing Commission’s policy
statements. § 3583(d)(3). And finally, the condition may
involve “no greater deprivation of liberty than is reasonably
necessary” to serve the goals of supervised release.
§ 3583(d)(2); see United States v. Riley, 576 F.3d 1046, 1048
(9th Cir. 2009).
The district court concluded that the Internet-use
restriction was reasonably related to LaCoste’s history and
characteristics—namely, his apparent use of the Internet to
disparage the victims of his offense. That, at least, is what we
infer from the district court’s brief explanation for imposing
the condition, which referred to LaCoste’s “postings,” the
desire to “de-escalate what may be happening in the
community,” and the need to “secure who you’re
communicating with.” A district judge undoubtedly has the
authority to stop a defendant from disparaging his victims
through communications directed to the victims personally.
LaCoste, however, does not appear to have engaged in any
one-to-one communications of this sort. He appears instead
to have posted disparaging comments about some of his
victims on the Internet. Although the record is a bit hazy on
this score, that is what one of the victims seemed to state at
the sentencing hearing. She alleged that LaCoste had posted
“rants and raves” about her and her husband through online
channels and that those posts had reached an audience at least
as broad as members of their church.
UNITED STATES V. LACOSTE 9
We need not decide (because the issue has not been
raised) whether First Amendment concerns constrain a
district judge’s authority to stop a defendant from posting
disparaging remarks about his victims on the Internet. Even
if the district court could impose a supervised release
condition prohibiting such conduct here, the condition it
actually imposed sweeps far more broadly. The court
prohibited LaCoste from making any use of the Internet
without first getting his probation officer’s approval. In our
view, that condition involves a greater deprivation of liberty
than is reasonably necessary to address the district court’s
concerns. Use of the Internet is vital for a wide range of
routine activities in today’s world—finding and applying for
work, obtaining government services, engaging in commerce,
communicating with friends and family, and gathering
information on just about anything, to take but a few
examples. Cutting off all access to the Internet constrains a
defendant’s freedom in ways that make it difficult to
participate fully in society and the economy.
Precisely because access to the Internet has become so
vital, courts have upheld conditions prohibiting all use of the
Internet only in limited circumstances. Thus far, such
conditions have been permitted in one of two scenarios: when
use of the Internet was “essential” or “integral” to the offense
of conviction, or when the Internet played no role in the
offense of conviction but the defendant had a history of using
the Internet to commit other offenses. See United States v.
Antelope, 395 F.3d 1128, 1142 (9th Cir. 2005); United States
v. Perazza-Mercado, 553 F.3d 65, 71 (1st Cir. 2009).
Published decisions in our circuit have upheld conditions
barring all Internet use only when the offenses at issue
involved child pornography or sexual abuse of minors. See
Barsumyan, 517 F.3d at 1161 n.11; United States v. Sales,
10 UNITED STATES V. LACOSTE
476 F.3d 732, 736 n.2 (9th Cir. 2007). Other circuits have
refused to uphold total bans on Internet access even in cases
involving the receipt of child pornography. See, e.g., United
States v. Crume, 422 F.3d 728, 733 (8th Cir. 2005); United
States v. Holm, 326 F.3d 872, 877–78 (7th Cir. 2003); United
States v. Freeman, 316 F.3d 386, 391–92 (3d Cir. 2003);
United States v. Sofsky, 287 F.3d 122, 126–27 (2d Cir. 2002);
United States v. White, 244 F.3d 1199, 1206–07 (10th Cir.
2001).
The facts of this case do not permit imposition of a total
ban on Internet access. LaCoste’s use of the Internet played
only a tangential role in his commission of the underlying
fraud offense. The record suggests that LaCoste used the
Internet to communicate by email with investors and his co-
conspirators, but using the Internet to that extent was no more
integral or essential to the commission of the offense than use
of the telephone or the mails was. Nor does LaCoste have a
history of using the Internet to commit other offenses. He
may have used the Internet to post disparaging comments
about some of his victims, but nothing in the record suggests
that such conduct rose to the level of a criminal offense. On
remand, the district court can attempt to craft a more
narrowly tailored condition directed at LaCoste’s offensive
Internet posts, but a total ban on all use of the Internet is
unwarranted.
The government seeks to defend the condition as drafted
by arguing that it is not really a total ban, since it allows
LaCoste to use the Internet so long as he first obtains his
probation officer’s approval. That proviso does not save what
is otherwise a plainly overbroad restriction on LaCoste’s
liberty. When a total ban on Internet access cannot be
justified, as is the case here, we have held that a proviso for
UNITED STATES V. LACOSTE 11
probation-officer approval does not cure the problem. See
Sales, 476 F.3d at 737. And for good reason: If a total ban
on Internet use is improper but a more narrowly tailored
restriction would be justified, the solution is to have the
district court itself fashion the terms of that narrower
restriction. Imposing a total ban and transferring open-ended
discretion to the probation officer to authorize needed
exceptions is not a permissible alternative. See United States
v. Scott, 316 F.3d 733, 736 (7th Cir. 2003).
The two remaining requirements for granting relief under
the plain error standard are satisfied as well. Because the
Internet-use restriction as currently drafted affected his
sentence and may not lawfully be imposed, it necessarily
affects LaCoste’s substantial rights and the perceived fairness
of the judicial proceedings. See Barsumyan, 517 F.3d at
1162; United States v. Burroughs, 613 F.3d 233, 245–46
(D.C. Cir. 2010). We vacate the Internet-use restriction and
remand for the district court to craft a more narrowly tailored
condition if it concludes that such a condition is warranted
and valid.
III
We turn next to the supervised release condition barring
LaCoste from residing in Linn, Benton, Lane, or Marion
Counties. LaCoste objected to this condition at sentencing,
so we review the district court’s decision to impose it for
abuse of discretion. See United States v. Daniels, 541 F.3d
915, 921, 924 (9th Cir. 2008). We conclude that this
condition, too, must be vacated.
Residency restrictions are unquestionably permissible as
a general matter. Congress has authorized district courts to
12 UNITED STATES V. LACOSTE
impose conditions requiring that a defendant “reside in a
specified place or area, or refrain from residing in a specified
place or area.” 18 U.S.C. § 3563(b)(13); see § 3583(d). But
such restrictions can impose a severe burden on a defendant’s
liberty interests. Most defendants have a strong interest in
returning to the area where they previously lived. A
defendant’s established community ties—the presence of
family, friends, and other support networks—can often play
an important role in making the transition from prison to life
as a productive member of society.
There are of course situations in which a defendant’s ties
to his former community may not be a positive influence, and
in such cases a condition of supervised release barring the
defendant’s return may well be justified. Courts have
typically upheld so-called “banishment” conditions when the
defendant’s ties to a particular area contributed to his past
criminality, thus increasing the likelihood that he will re-
offend if he returns. See, e.g., United States v. Watson,
582 F.3d 974, 983–85 (9th Cir. 2009); United States v.
Sicher, 239 F.3d 289, 291–92 (3d Cir. 2000); United States v.
Cothran, 855 F.2d 749, 752 (11th Cir. 1988).
The district court relied on similar considerations here,
stating that LaCoste would likely go back to “being the same
old guy with those same old behaviors” if he were to return
to Albany. But the court did not adequately explain the basis
for its view. Simply declaring that a defendant is likely to
resume a life of crime if he returns to a given area is not
enough, unless the reasons are obvious from the record. See
United States v. Collins, 684 F.3d 873, 890 (9th Cir. 2012).
Here they are not. It is not obvious why LaCoste would be
more likely to engage in another fraudulent scheme if he
returns to Albany as opposed to someplace else. We cannot
UNITED STATES V. LACOSTE 13
tell from the record before us, for example, whether the
Albany area offers LaCoste unique opportunities (or
temptations) for resuming his criminal behavior. Without a
more detailed explanation of the district court’s reasons for
choosing this condition, we are unable to affirm the
imposition of a residency restriction.
The residency restriction as currently framed is flawed for
another reason. The district court’s stated concerns seemed
to revolve solely around LaCoste’s return to Albany, which
is located in Linn and Benton Counties. However, the
residency restriction extends to Lane and Marion Counties as
well. The record does not make clear why a residency
restriction, if one is indeed warranted, should encompass
those two counties. The government argues that the
restriction justifiably includes all four counties because the
real estate projects LaCoste promised to build were to be
located in those counties. That may be true, but it does not
explain why forbidding LaCoste to live within the four-
county region will further any of the purposes of supervised
release. Nor can we uphold the residency restriction on the
basis of the court’s other reason for imposing it—the
community’s need to heal. As things stand, LaCoste will not
return to the community until 2019, after he serves his five-
year prison sentence. That seems like a sufficiently long
period on its own to allow the community to heal, particularly
since the conduct for which LaCoste was sentenced occurred
in 2006 and 2007.
14 UNITED STATES V. LACOSTE
We vacate the residency restriction. If the district court
seeks to reimpose it on remand, the court should explain more
fully its reasons for doing so.
AFFIRMED IN PART, VACATED IN PART, and
REMANDED.