United States v. Cyrus Sullivan , 700 F. App'x 766 ( 2017 )


Menu:
  •                            NOT FOR PUBLICATION                           FILED
    UNITED STATES COURT OF APPEALS                        NOV 9 2017
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                       No.    16-30238
    Plaintiff-Appellee,             D.C. No. 3:13-cr-00064-HZ-1
    v.
    MEMORANDUM*
    CYRUS ANDREW SULLIVAN,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the District of Oregon
    Marco A. Hernandez, District Judge, Presiding
    Argued and Submitted October 6, 2017
    Portland, Oregon
    Before: PAEZ and BEA, Circuit Judges, and ANELLO,** District Judge.
    Cyrus Sullivan appeals the district court’s order amending and modifying
    conditions of supervised release imposed following Sullivan’s conviction for
    making a threatening communication in violation of 18 U.S.C. § 875(c). We have
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    **
    The Honorable Michael M. Anello, United States District Judge for
    the Southern District of California, sitting by designation.
    jurisdiction under 28 U.S.C. § 1291. We review a district court’s conclusions
    regarding supervised release conditions for abuse of discretion. United States v.
    Gnirke, 
    775 F.3d 1155
    , 1159 (9th Cir. 2015). We affirm.
    Prior to his arrest, Sullivan created and operated a website called
    STDCarriers.com that allowed registered users to post anonymously information
    about the sexual health of third parties. One woman, A.K., learned that her former
    boyfriend had posted derogatory information about her on Sullivan’s website.
    A.K. contacted Sullivan to remove this information, which sparked a series of
    combative communications between Sullivan and A.K. Eventually, Sullivan sent
    A.K. a hostile and threatening email that resulted in the criminal charge under §
    875(c). Sullivan pleaded guilty, and the district court imposed several conditions
    of supervision. In this appeal, Sullivan seeks relief from special condition 8, which
    prohibits Sullivan from owning or operating any former website, including
    STDCarriers.com, and any similar website that offers reputation management
    services.1
    Sullivan contends special condition 8 constitutes an impermissible
    1
    Sullivan also challenges the imposition of special condition 12, which subjects
    his employment to approval by the probation officer. The district court, however,
    recently revoked Sullivan’s supervised release and imposed new release
    conditions, which include special condition 8 but omit special condition 12. As
    such, Sullivan’s challenge to special condition 12 is moot.
    2                                    16-30238
    occupational restriction.2 A district court can impose an occupational restriction
    that limits a defendant’s engagement only “in a specified occupation, business, or
    profession bearing a reasonably direct relationship to the conduct constituting the
    offense.” 18 U.S.C. § 3563(b)(5). Additionally, the district court must find “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.S.G. § 5F1.5(a)(2).
    Sullivan argues there is no direct relationship between the operation of
    STDCarriers.com and making a threatening communication via email. However,
    as the district court noted, “This whole event arose because the defendant was
    running this particular business.” Sullivan also used his business email address to
    send the threatening email to A.K. Accordingly, the district court did not abuse its
    discretion in finding a direct relationship between the occupational restriction and
    2
    This Court affirmed on direct appeal the imposition of a former version of
    special condition 8, which prohibited Sullivan from accessing any online computer
    service or directing third parties to do so on his behalf without prior written
    approval of the probation officer. See United States v. Sullivan, 588 F. App’x 631,
    632 (9th Cir. 2014) (“We have examined special conditions of supervised release 7
    and 8 and conclude that they are not illegal.”). The government argues collateral
    estoppel bars Sullivan’s current challenge, and moves for judicial notice of
    Sullivan’s opening brief filed in his direct appeal. The government’s motion is
    granted. Collateral estoppel, however, does not bar Sullivan’s current challenge
    because the issues in the two actions are not “sufficiently similar and sufficiently
    material . . . to justify invoking the doctrine.” United States v. Smith-Baltiher, 
    424 F.3d 913
    , 919 (9th Cir. 2005) (quoting United States v. Romeo, 
    114 F.3d 141
    , 143
    (9th Cir. 1997)).
    3                                    16-30238
    Sullivan’s offense of conviction. See United States v. Betts, 
    511 F.3d 872
    , 874-75
    (9th Cir. 2007).
    We also reject Sullivan’s argument that special condition 8 is not reasonably
    necessary to protect the public because there is no evidence that, absent special
    condition 8, he “will continue to engage in unlawful conduct similar to that for
    which he was convicted.” U.S.S.G. § 5F1.5(a)(2). The record reflects that
    Sullivan’s website generated “complaints from people literally around the world,”
    and Sullivan’s attorney conceded at the motion hearing that “it’s always possible
    that this situation is going to resume itself.” The district court did not abuse its
    discretion in finding that Sullivan would likely engage in unlawful conduct similar
    to issuing threatening communications if he continued to operate his website or
    any similar website. See 
    Betts, 511 F.3d at 875
    (“The public is entitled to be
    protected against crimes flowing from the same character trait demonstrated by the
    crime.”).
    AFFIRMED.
    4                                     16-30238
    

Document Info

Docket Number: 16-30238

Citation Numbers: 700 F. App'x 766

Filed Date: 11/9/2017

Precedential Status: Non-Precedential

Modified Date: 1/13/2023