United States v. Robert O'DOnnell , 482 F. App'x 256 ( 2012 )

FILED
NOT FOR PUBLICATION JUN 01 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10333
Plaintiff - Appellee, D.C. No. 4:06-cr-01277-CKJ-JCG-
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v.
ROBERT THOMAS O’DONNELL, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Argued and Submitted May 17, 2012
San Francisco, California
Before: THOMAS, McKEOWN, and W. FLETCHER, Circuit Judges.
Robert Thomas O’Donnell appeals his supervised release revocation and the
sentence imposed upon revocation. We have jurisdiction pursuant to 28 U.S.C.
§ 1291, and we affirm. Since the parties are familiar with the facts and
background, we repeat them here only as necessary.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
O’Donnell claims that the district court erred in imposing certain supervised
release conditions upon revocation. District courts have wide discretion in
imposing such conditions, and may impose conditions that are “reasonably related
to the goal of deterrence, protection of the public, or rehabilitation of the offender,
and involve no greater deprivation of liberty than is reasonably necessary for the
purposes of supervised release.” United States v. Rearden, 349 F.3d 608, 618 (9th
Cir. 2003) (internal quotation marks and citation omitted). Each of the challenged
conditions is proper.
The substance abuse treatment requirement will help protect the public and
aid in rehabilitation since O’Donnell has a history of drug use. Similarly, the
residential re-entry special condition will help O’Donnell reintegrate into society.
The restriction on alcohol is appropriate because the district court found that
alcohol use impairs judgment and may make O’Donnell re-offend. See United
States v. Wise, 391 F.3d 1027, 1031 (9th Cir. 2004) (supervised release condition
need not be related to the offense of conviction). The financial disclosure
conditions are reasonably related to the 18 U.S.C. § 3553(a) factors because, as the
district court found, financial issues lead to stress, which could be a triggering
factor for O’Donnell.
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The prohibition on sexually explicit material is related both to O’Donnell’s
offense and protection of the public. See Rearden, 349 F.3d at 619-20; see also
United States v. Bee, 162 F.3d 1232, 1234-35 (9th Cir. 1998) (probationer does not
have an unqualified right to “sexually stimulating or sexually oriented materials”).
Similarly, the restrictions related to underage females are designed to facilitate
rehabilitation and reduce risk to society. See United States v. Daniels, 541 F.3d
915, 928 (9th Cir. 2008) (barring defendant from employment “that causes him to
regularly contact persons under the age of 18”).
A sex-offender may be prohibited from using any online computer service.
Rearden, 349 F.3d at 620-21. Because the Internet was essential to O’Donnell’s
offense, such a restriction is proper. United States v. Antelope, 395 F.3d 1128,
1142 (9th Cir. 2005). O’Donnell may still use a computer that is not connected to
the internet or seek approval for internet use from his probation officer,
distinguishing his situation from United States v. Riley, 576 F.3d 1046, 1049 (9th
Cir. 2009), which disallowed a blanket prohibition on computer use. The
restriction against recording devices is proper because it is related to O’Donnell’s
offense. United States v. Blinkinsop, 606 F.3d 1110, 1122-23 (9th Cir. 2010).
O’Donnell next claims that the district court erred by denying him adequate
notice, confrontation rights, and due process at the revocation hearing. Before the
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hearing, O’Donnell was provided with copies of pictures that the prosecution
would rely on to meet its burden; he understood the allegations against him and
had sufficient notice of the allegations to prepare a defense. United States v.
Martin, 984 F.2d 308, 310 (9th Cir. 1993). O’Donnell’s right to cross-examine
was not violated because the district court did not rely upon the probation officer’s
testimony regarding the deposition transcript, and the photographs at issue were
properly admitted based on Hafner’s testimony. Of note, O’Donnell did not ask
for a continuance with respect to the alleged surprise witness, nor did O’Donnell
demonstrate resultant prejudice. No due process violation occurred.
Finally, the probation department had the authority to provide O’Donnell an
explanation of the prohibition against “contact” with minors. See United States v.
Stephens, 424 F.3d 876, 880 (9th Cir. 2005) (“Congress has given probation
officers broad statutory authority to supervise offenders and to enforce a
sentencing court’s terms and conditions of supervised release and probation.”
(citing 18 U.S.C. §§ 3603, 3606)). In any event, because the district court did not
rely upon the probation department’s clarification when revoking supervised
release, any error in the probation department’s definition was harmless error. As
referenced at oral argument, O’Donnell may seek “approval of the probation
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officer” to deviate from the restrictions on contact with underage females and
internet access.
AFFIRMED.
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