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In possession of child pornography case, the Third Circuit rejects certain special conditions of supervised release.

In United States v. Voelker , No. 05-2858, (3d Cir. June 5, 2007), Voelker pled guilty to possessing child pornography in violation of 18 U.S.C. §2252(a)(2). The court imposed a supervised release term of life. On appeal, he challenged three special conditions: (1) The defendant is prohibited from access to any computer equipment or any on-line computer service at any location, including employment or education. This includes, but is not limited to, any internet service provider, bulletin board system or any other public or private computer network; (2) The defendant shall not possess any materials, including pictures, photographs, books, writings, drawings, videos or video games, depicting and/or describing sexually explicit conduct as defined at Title 18 of the United States Code, Section 2256(2); and (3) The defendant shall not associate with children under the age of eighteen except in the presence of a responsible adult who is aware of the nature of the defendant’s background and current offense and who has been approved by the probation officer.

The Court first concluded that "an absolute lifetime ban on using computers and computer equipment as well as accessing the internet, with no exception for employment or education, involves a greater deprivation of liberty than is reasonably necessary and is not reasonably related to the factors set forth in 18 U.S.C. §3583." The court discussed the ubiquitious presence of the internet and the indispensable nature of computers. Literal compliance would have impacted Mr. Voelker’s ability to drive a car as well as to use ATM machines, grocery store scanners, and washing machines. "The condition is the antithesis of a ‘narrowly tailored’ sanction. The lifetime ban on all computer equipment and the internet is the functional equivalent of prohibiting a defendant who pleads guilty to possession of magazines containing child pornography from ever possessing any books or magazines of any type during the remainder of his/her life."

The court also rejected the government’s unsupported claim – made at oral argument and the subject of much discussion - that scare resources prevented a more narrow restriction allowing computer use subject to probation officer monitoring and inspections. Even if true, "we would be reluctant to agree that such dramatic limitations on First Amendment freedoms can readily be justified by the cost of affording fundamental liberties." The difficulty of narrowly tailoring computer restrictions does not "justify the kind of lifetime cybernetic banishment that was imposed here." The court also agreed that the condition imposed here amounted to an occupational restriction in violation of U.S.S.G. § 5F1.5(a).

As an additional condition of supervised release, the court imposed - without explanation - a condition prohibiting the possession of any materials, including pictures, videos, video games, and textual descriptions of "sexually explicit conduct." Sexually explicit conduct is defined as "actual or simulated - (i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between person of the same or opposite sex; (ii) bestiality; (iii) masturbation; (iv) sadistic or masochistic abuse; or (v) lascivious exhibition of the genitals or pubic area of any person." 18 U.S.C. § 2256(2). The broad ban had no basis in the record. There was no evidence that viewing "sexually explicit material" that is non-obscene and does not involve minors, was related in any way to Mr. Voelker's crime of receiving child pornography or that viewing or reading such material would cause him to reoffend. Further the condition is so broad it sweeps within its reach some legal adult pornography as well as illegal child pornography in violation of the First Amendment.

Finally, Mr. Voelker argued that the supervised release condition prohibiting him from associating with minors without prior approval of the probation officer and under supervision as applied to his own minor children interferes with his constitutional right of procreation, as well as his fundamental liberty and his freedom of association under the First Amendment. The court reviewed this challenge under a plain error standard and vacated the condition. The court agreed the record supports restricting his association with minors as there was evidence Mr. Voelker admitted showing his daughter's buttocks on his webcam. It was the court’s delegation of absolute authority to the Probation Officer to allow such contact while providing no guidance for the exercise of that discretion that the Court rejected. "Thus, Voelker’s Probation Officer becomes the sole authority for deciding if Voelker will ever have unsupervised contact with any minor, including his own children, for the rest of his life." The Court observed that in Loy II it had struck down this very kind of unbridled delegation of authority as an abdication of "‘juridical responsibility’ for setting the conditions of release."

The Court directs the district court on remand to clarify whether he intended the ban to extend to Voelker’s own children and to provide guidance to the probation officer if a ban is reimposed. The Court declined to "express any opinion about the legality of a condition that so drastically interferes with one’s right to associate with one’s own children." As such, this remains an open question in the Third Circuit. The Court cautioned "that any lifetime ban on association with minors should be supported by sufficient evidence to resolve the dispute over whether Voelker was simply role-playing."

It is interesting to note that the Court warned against merely adopting the findings of the presentence report in this regard - particularly where the record does not set forth the expertise of the person who prepared that report in addressing this sensitive and difficult area. Defense counsel may wish to cite the Third Circuit’s recognition of the limits of a probation officer’s expertise when challenging the contents of presentence reports and the findings and conclusions offered by Probation Officers in those reports. The Third Circuit suggested expert testimony may be necessary. In this regard, the Court also noted that the district court would have access to the records of the professionals currently treating Mr. Voelker in determining whether he poses a sufficient threat to children.

The Court was particularly troubled that the conditions imposed here are almost identical to those vacated in its Loy opinions (United States v. Loy, 199 F.3d 360 (3d Cir. 1999) and United States v. Loy, 237 F.3d 251 (3d Cir. 2001)) and that the same judge was involved in all three cases. "It is indeed unfortunate that we have had to review a sentence that mirrors one that this same judge previously imposed that we had to vacate not once, but twice."

Written by Renee Pietropaolo


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