United States v. Gordon Hall , 912 F.3d 1224 ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10422
Plaintiff-Appellee,
D.C. No.
v. 2:14-cr-00184-
NVW-1
GORDON LEROY HALL,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted December 19, 2018
San Francisco, California
Filed January 11, 2019
Before: Ronald M. Gould and Marsha S. Berzon, Circuit
Judges, and Frederic Block, * District Judge.
Per Curiam Opinion
*
The Honorable Frederic Block, United States District Judge for the
Eastern District of New York, sitting by designation.
2 UNITED STATES V. HALL
SUMMARY **
Criminal Law
The panel reversed in part a criminal judgment in a case
in which the defendant appealed a special condition of
supervised release that provides that the defendant is
permitted to have contact with his son “only for normal
familial relations but is prohibited from any contact,
discussion, or communication concerning financial or
investment matters except matters limited to defendant’s
own support.”
The panel held that the condition is unconstitutionally
vague, and struck the offending words “only for normal
familial relations” from the condition.
COUNSEL
Elissa Larouche (argued) and Daniel L. Kaplan, Assistant
Federal Public Defenders; Jon M. Sands, Federal Public
Defender; Office of the Federal Public Defender, Phoenix,
Arizona; for Defendant-Appellant.
Lisa E. Jennis (argued), Assistant United States Attorney;
Krissa M. Lanham, Deputy Appellate Chief; Elizabeth
Strange, First Assistant United States Attorney; United
States Attorney’s Office, Phoenix, Arizona; for Plaintiff-
Appellee.
**
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. HALL 3
OPINION
PER CURIAM:
Gordon Hall (“Hall”) and his son Benton (“Benton”)
were both sentenced to prison for their business venture
helping others defraud the government through false money
orders. The two were already incarcerated for a separate joint
criminal enterprise. For the second time, Hall, who is still in
prison, appeals a special condition of his anticipated release
restricting his relationship with his family. 1 Special
Condition 11 provides that Hall “is permitted to have contact
with Benton [] only for normal familial relations but is
prohibited from any contact, discussion, or communication
concerning financial or investment matters except matters
limited to defendant’s own support.” Hall objected at
sentencing that the condition is unconstitutionally vague.
We agree, and strike the offending words “only for normal
familial relations” from the condition.
A supervised release condition “violates due process of
law if it either forbids or requires the doing of an act in terms
so vague that men of common intelligence must necessarily
guess at its meaning and differ as to its application.” United
States v. Soltero, 510 F.3d 858, 866 (9th Cir. 2007) (per
curiam) (citations and quotation marks omitted); see also
United States v. Aquino, 794 F.3d 1033, 1037 (9th Cir.
1
In an earlier memorandum disposition, this court considered
another version of this condition, which, without exception for relatives,
prohibited Hall from “associat[ing] with . . . any person convicted of a
felony unless granted permission to do so by the probation officer.”
United States v. Hall, 681 F. App’x 621, 623–24 (9th Cir. 2017). Because
the trial court had imposed that condition without justifying or limiting
the restriction on Hall’s right to associate with his children, who had been
convicted of felonies, we vacated and remanded. Id.
4 UNITED STATES V. HALL
2015). The government cannot save an otherwise
impermissible condition by “promising to enforce it in a
narrow manner.” Id. at 1037 (alterations omitted) (quoting
Soltero, 510 F.3d at 867 n.10). Although usually this court
“give[s] considerable deference to a district court’s
determination of the appropriate supervised release
conditions,” United States v. Weber, 451 F.3d 552, 557 (9th
Cir. 2006), it “review[s] carefully” conditions that implicate
the “fundamental liberty interest in having contact with
one’s children,” United States v. Wolf Child, 699 F.3d 1082,
1089, 1091 (9th Cir. 2012), or the defendant’s First
Amendment rights, cf. Cal. Teachers Ass’n v. State Bd. of
Educ., 271 F.3d 1141, 1150 (9th Cir. 2001).
The phrase “normal familial relations” is susceptible to
many different interpretations, and so raises questions with
no clear answers. Must relations be “normal” for that
particular family, or “normal” for families in general? If the
latter, as the government contended at oral argument, how is
a defendant to know what a “normal” family is and does, in
light of the tremendous diversity of family structures and
family habits, customs, and activities in this country? Cf.
Johnson v. United States, 135 S. Ct. 2551, 2557–58 (2015)
(identifying the unconstitutional ambiguities of the Armed
Career Criminal Act residual clause).
Further, unconventional political activities or religious
traditions in which a family might collectively engage may
not be “normal” for families in general, but they are, with
narrow exceptions, constitutionally protected. See, e.g.,
Employment Div., Dep’t of Human Res. of Oregon v. Smith,
494 U.S. 872, 876–78 (1990); Wisconsin v. Yoder, 406 U.S.
205, 234 (1972). Whether or not such an interpretation of the
condition by a probation officer or judge is likely,
“[u]ncertain meanings inevitably lead citizens to steer far
UNITED STATES V. HALL 5
wider of the unlawful zone than if the boundaries of the
forbidden areas were clearly marked.” Cal. Teachers Ass’n,
271 F.3d at 1150 (quotation marks and citations omitted).
If the district court meant only to prohibit Hall and
Benton from participating in illegal activities together, it
could have said exactly that and no more, as defense counsel
suggested at the resentencing hearing. Notably, Hall is
generally prohibited from engaging in illegal activities by his
first condition of supervised release.
REVERSED in part.