19-2304 United States v. Birkedahl
United States Court of Appeals For the Second Circuit
August Term 2019
Submitted: June 2, 2020
Decided: August 25, 2020
No. 19-2304
UNITED STATES OF AMERICA,
Appellee,
v.
ERIC A. BIRKEDAHL,
Defendant-Appellant.
Appeal from the United States District Court for the Western District of New York No. 19-cr-6044, Frank P. Geraci, Judge.
Before: SULLIVAN, PARK, AND NARDINI, Circuit Judges. Defendant-Appellant Eric Birkedahl, who is serving a 24-month sentence for possession of child pornography, challenges three conditions of his supervised release, including a verification testing condition that permits the use of a computerized voice stress analyzer to assess Birkedahl’s compliance with the terms of his supervised release. Contending that there is a lack of scientifically valid evidence supporting the test’s accuracy, Birkedahl argues that the district court abused its discretion in including the computerized voice stress analyzer in the condition, and at the very least should have conducted a hearing on the test’s reliability. We hold that this challenge is not ripe because the efficacy of computerized voice stress analyzers in promoting sentencing goals is subject to change with technological advances. Accordingly, we DISMISS Birkedahl’s challenge to the computerized voice stress analyzer, as well as his challenge to the notification risk condition, which is also not ripe. Because Birkedahl’s challenge to the remaining condition of supervised release is foreclosed by our precedents, we AFFIRM the remainder of the sentence and judgment of the district court.
AFFIRMED.
Jay S. Ovsiovitch, Assistant Public Defender, Federal Public Defender’s Office, Rochester, New York, for Defendant-Appellant Eric A. Birkedahl.
Tiffany H. Lee, Assistant United States Attorney, for James P. Kennedy, Jr., United States Attorney for the Western District of New York, Buffalo, New York, for Appellee United States of America.
RICHARD J. SULLIVAN, Circuit Judge:
Defendant-Appellant Eric Birkedahl, who is serving a 24-month custodial
sentence after pleading guilty to possession of child pornography in violation of
18 U.S.C. § 2252A, appeals three conditions of supervised release that will
commence after he completes his term of imprisonment. Specifically, Birkedahl contends that: (1) the special condition requiring him to attend a sex offense
treatment program (the “treatment condition”) is impermissibly vague; (2) the
special condition that requires him to be tested to verify his compliance with the
conditions of his supervised release (the “verification testing condition”)
improperly permits the use of a computerized voice stress analyzer (“CVSA”) that
he claims is unreliable; and (3) the standard notification of risk condition, which
contemplates that Birkedahl may be required to notify third parties that he poses
a risk to them, delegates too much discretion to the probation officer. As to the
CVSA, we hold that the challenge is not ripe because the efficacy of computerized
voice stress analyzers in promoting sentencing goals is subject to change with
technological advances before Birkedahl’s term of supervision begins. We dispose
of the remaining challenges under our existing precedents, finding the challenge
to the risk condition also to be unripe and the challenge to the treatment condition
to be meritless. We therefore dismiss the unripe challenges and affirm the
remainder of the district court’s judgment.
I. BACKGROUND
On April 9, 2019, Birkedahl waived indictment and pleaded guilty in the
United States District Court for the Western District of New York (Geraci, J.) to
3 one count of possession of child pornography in violation of 18 U.S.C. § 2252A.
Birkedahl waived his right to appeal a sentence within or below an agreed-upon
Guidelines range of 97 to 121 months’ imprisonment and a supervised release
period of five years to life. Before sentencing, Birkedahl objected to several
conditions of supervised release proposed in the presentence investigation report,
including the two special conditions and the standard risk condition that he
challenges on appeal.
At sentencing, the district court permitted oral argument on Birkedahl’s
objections. With respect to the treatment condition, 1 Birkedahl argued that it was
impermissibly vague because it failed to adequately specify which details of his
sex offense treatment would be supervised by the probation officer. Explaining
that “to spell out every single detail would be overwhelming for the condition,”
the probation officer present at sentencing affirmed that probation would
supervise the details of the court-imposed conditions “to be able to give [the court]
a report on . . . compliance or non-compliance,” not to act as a counselor or
1The treatment condition provides that: “The defendant must participate in a sex offense- specific treatment program and follow the rules and regulations of that program. The probation officer will supervise the details of the defendant’s participation in the program, including the selection of a provider and schedule. The defendant is not to leave treatment until complete or as ordered by the Court. The defendant is required to contribute to the cost of services rendered.” App’x at 85.
4 treatment provider as the defense suggested could be the case. App’x at 58–59.
The district court found that the condition was reasonably related to the offense
and that it provided that the probation officer would merely supervise Birkedahl’s
participation in treatment “and report back to the [c]ourt,” “not that [the officer]
will determine what the details are or determine what the particular aspects of the
program are.” Id. at 59.
Arguing that the CVSA’s reliability in detecting deception lacked a scientific
basis, Birkedahl also asked the court to strike the reference to the CVSA in the
verification testing condition, 2 or in the alternative, to hold a hearing regarding the
reliability of the CVSA. In response, the probation officer explained that the CVSA
could be beneficial to Birkedahl because it could be provided at no cost, while
polygraph testing costs “approximately $275” per evaluation. Id. at 61. As
relevant here, the court retained the CVSA reference without holding a hearing. It
also clarified that the probation office could use the CVSA, as well as a polygraph,
2 The verification condition provides that: “The defendant shall submit to polygraph, computerized voice stress analyzer, or other such testing as approved by the Court, not to exceed twice in a calendar year, and an additional two re-tests per year, as needed. That testing may include examinations using a polygraph, computerized voice stress analyzer, or other similar device as approved by the Court, to obtain information necessary for supervision, case monitoring, and treatment. . . . The defendant is required to contribute to the cost of services rendered.” App’x at 85.
5 without the court’s prior approval, though the use of other devices would require
court approval.
The defense finally noted its objection to the risk condition, 3 and relied on
its written submission without elaboration. The court also overruled that
objection.
The district court ultimately imposed a below-Guidelines sentence of 24
months, to be followed by a five-year term of supervised release. The court then
reiterated that the term of supervised release was subject to various conditions,
including special conditions such as the treatment condition and verification
testing condition.
On appeal, Birkedahl reiterates his challenges to those special conditions
and the standard risk condition. First, he maintains that the sex offense treatment
condition is vague and must be vacated and remanded for the district court to
explain what it means for probation to supervise the administrative details of the
3 The standard risk condition employed in the Western District of New York provides: “If the court determines in consultation with your probation officer that, based on your criminal record, personal history and characteristics, and the nature and circumstances of your offense, you pose a risk of committing further crimes against another person (including an organization), the probation officer may require you to notify the person about the risk and you must comply with that instruction. The probation officer may contact the person and confirm that you have notified the person about the risk.” App’x at 84.
6 treatment. Second, Birkedahl argues that he should not be subject, without a
hearing, to the condition requiring him to submit to a CVSA because that
technology is not scientifically reliable. Third, Birkedahl argues that the standard
risk condition imposed gives the probation officer too much discretion and that
the case should be remanded for the district court to clarify that it, not probation,
will determine whether a person should be notified. We address each challenge
in turn.
II. DISCUSSION
“A district court retains wide latitude in imposing conditions of supervised
release,” and this Court generally reviews the imposition of such conditions “for
abuse of discretion.” United States v. MacMillen, 544 F.3d 71, 74 (2d Cir. 2008).
“When a challenge to a condition of supervised release presents an issue of law,
we review . . . de novo, bearing in mind that any error of law necessarily constitutes
an abuse of discretion.” Id. at 74–75. As a general matter, “[a] court may order
special conditions of supervised release” if they are “reasonably related” to the
statutory purposes of supervision: namely, “the nature and circumstances of the
offense and the history and characteristics of the defendant”; “the need for the
sentence imposed to afford adequate deterrence”; “the protection of the public”;
7 and “the rehabilitative and medical care needs of the defendant.” United States v.
Parisi, 821 F.3d 343, 348 (2d Cir. 2016) (internal quotation marks omitted). Special
conditions “must also involve no greater deprivation of liberty than is reasonably
necessary” to implement the statutory purposes of sentencing, and “must be
consistent with any pertinent [Sentencing Commission] policy statements.” Id.
(internal quotation marks omitted).
A. The Sex Offense Treatment Condition
Birkedahl first contends that the special condition requiring him to
participate in a sex offense treatment program is erroneously vague as to the scope
of the probation officer’s supervisory role. He concedes that it is permissible for
probation to have discretion over “administrative aspects of the treatment such as
the ‘selection of a provider and the schedule.’” Birkedahl Br. at 22 (emphasis
omitted) (quoting United States v. Maggese, 785 F. App’x 879, 881 (2d Cir. 2019)).
Nevertheless, Birkedahl argues that because the condition fails to delineate the
other functions that constitute administrative aspects within the probation
officer’s supervision, it raises concerns “about the amount of discretion . . . given
to the probation officer not listed in the condition.” Id. at 21.
The challenge is meritless. To be sure, “a district court may not delegate to
the Probation Department decisionmaking authority which would make a
8 defendant’s liberty itself contingent on a probation officer’s exercise of
discretion.” United States v. Matta, 777 F.3d 116, 122 (2d Cir. 2015). But as
Birkedahl himself recognizes, we have long upheld delegations “over certain
minor details of supervised release,” including “the selection of a therapy provider
or treatment schedule.” Id.
Here, the district court made clear that it was delegating to the probation
officer discretion over only “the details of the defendant’s participation in the
program, including the selection of a provider and schedule.” App’x at 75–76. As
we recently explained in a summary order addressing a similar challenge to a sex
offense treatment condition, “[t]he court’s use of the word ‘including’ cannot
reasonably be understood as expanding Probation’s decisionmaking authority
beyond the administrative details of treatment such that it rendered [Birkedahl’s]
‘liberty itself contingent on a probation officer’s exercise of discretion.’” United
States v. Leone, No. 19-1670, 2020 WL 2550991, at *1 (2d Cir. May 20, 2020) (quoting
Matta, 777 F.3d at 122); see also United States v. Peterson, 248 F.3d 79, 85 (2d Cir.
2001) (holding that a district court may leave to the probation officer’s discretion
“a variety of details, including the selection of a therapy provider and schedule”
9 (emphasis added)). Accordingly, the district court did not abuse its discretion in
imposing this condition.
B. The Verification Testing Condition
Birkedahl’s next challenge concerns the verification testing condition, which
permits the probation officer to require Birkedahl to take a polygraph
examination, CVSA, or other verification test as approved by the court. As a
general matter, this Court has upheld the use of verification testing in supervising
defendants convicted of sex offenses, recognizing “the strong deterrent value of
polygraph conditions” and their ability to “further sentencing objectives such as
rehabilitation and deterrence, with reasonably small incremental deprivations of
liberty.” United States v. Boles, 914 F.3d 95, 112 (2d Cir. 2019) (internal quotation
marks omitted); see also Parisi, 821 F.3d at 349 (upholding a condition allowing the
use of polygraph, CVSA, or other similar devices); United States v. Johnson, 446 F.3d
272, 278 (2d Cir. 2006). Here, Birkedahl does not dispute the district court’s
authority to impose a verification testing condition. Nevertheless, citing the
CVSA’s alleged unreliability in detecting deception, Birkedahl seeks to remove the
reference to the CVSA from the condition, arguing that its imposition renders the
condition not reasonably related to the statutory purposes of supervision.
10 Birkedahl also contends that the district court abused its discretion when it did not
hold a hearing to assess the CVSA’s reliability and, as alternative relief, requests
remand so that the district court can hold such a hearing. 4 In Birkedahl’s view,
because the probation officer or government did not attempt “to rebut the studies”
that Birkedahl cited as support for his assertion that the CVSA is unreliable, the
court was required to hold a hearing before imposing a condition that included
the CVSA as a permissible tool. Birkedahl Br. at 31. To be clear, Birkedahl’s
hearing-based challenge does not suggest that it was an abuse of discretion to
impose the verification testing condition itself. He merely argues that the district
court should not have included the CVSA as a means of carrying out verification
testing without first holding a hearing as to its reliability. We disagree, and find
4 In his briefing, Birkedahl insists that he was entitled to a Daubert hearing on the reliability of the CVSA test. But a Daubert hearing relates to the “admissibility of . . . scientific evidence at trial.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 585 (1993) (emphasis added). Needless to say, the form of verification testing that may be required as a condition of supervised release does not turn on whether the results from such a test would be admissible as evidence at trial. See, e.g., United States v. Johnson, 446 F.3d 272, 278 (2d Cir. 2006) (noting that the fact that “polygraph results are inadmissible as evidence” “does not much bear on the therapeutic value of the tool” to advance sentencing goals). Notwithstanding this misplaced reference to Daubert, we understand Birkedahl to be requesting a hearing regarding the CVSA’s reliability more generally, as related to the appropriateness for inclusion in a supervised release condition. See, e.g., Birkedahl Br. at 30 (arguing that the district court should have held a Daubert hearing to “assess the reliability and necessity of the [CVSA] before permitting its use as a supervisory tool” (emphasis added)).
11 that the reliability of the CVSA is a fact-specific scientific inquiry that is subject to
change with the advent of new technology and the passage of time. Accordingly,
whether the district court abused its discretion by including the CVSA as a
permissible test without first holding a hearing is not ripe for our review.
“The ripeness doctrine prevents a federal court from entangling itself in
abstract disagreements over matters that are premature for review because the
injury is merely speculative and may never occur.” United States v. Balon, 384 F.3d
38, 46 (2d Cir. 2004) (internal quotation marks and brackets omitted). “Because
the ripeness doctrine is drawn both from Article III limitations on judicial power
and from prudential reasons for refusing to exercise jurisdiction, the court can
raise it sua sponte, and, indeed, can do so for the first time on appeal.” Thomas v.
City of New York, 143 F.3d 31, 34 (2d Cir. 1998) (internal quotation marks omitted).
In assessing ripeness, we consider two factors – the fitness of the issues on appeal
for judicial consideration, and the potential hardship to parties that will result
from withholding consideration. Balon, 384 F.3d at 46.
Birkedahl’s challenges to the CVSA rest on the premise that the CVSA is so
unreliable at detecting deception that it cannot be imposed on Birkedahl, either
full-stop, or without further factual development. But where, as here, the necessity
12 or propriety of a supervisory tool hinges on the state of technology available at the
time of supervision, we have previously declined to consider challenges to the tool
in question on direct appeal prior to the commencement of supervised release. Id.
at 47 (stating that where “the necessity of [a given] aspect of [a] special condition”
is “essentially a question of technology, it is . . . unripe and should be reconsidered
in the future”); see also id. at 48 (instructing the district court “to evaluate the
necessity” of the condition pursuant to 18 U.S.C. § 3583(e) “in light of the
technology existing closer to the time of . . . supervised release”).
This is particularly true with respect to rapidly evolving technologies such
as computers and software. As we observed in Balon, “changing computer
technology is an appropriate factor to authorize” modifications based on “new or
unforeseen circumstances” under § 3583(e). Id. at 47 (internal quotation marks
omitted). And since the CVSA involves precisely such a rapidly changing
computer technology, we find that it is inappropriate “to predict the state of [the
CVSA’s] computer technology at the commencement of” Birkedahl’s term of
supervision. See id. at 40; see also Kelly R. Damphousse, Voice Stress Analysis: Only
15 Percent of Lies About Drug Use Detected in Field Test, NIJ J. Mar. 2008, at 11 n.3,
https://www.ncjrs.gov/pdffiles1/nij/221502.pdf (noting that the first version of the
13 CVSA test at issue in the study was introduced in 1988 “and has undergone a
number of changes and system upgrades over the years”).
As such, Birkedahl’s claim that the CVSA is too unreliable for use in
supervised release is “distinctly a matter of fact beyond the prescience of this court
and is thus currently subject to abstract disagreements over matters that are
premature for review.” Balon, 384 F.3d at 46 (internal quotation marks omitted).
Further, to the extent that the CVSA may advance sentencing goals by encouraging
candor, the salience of that objective will also increase or diminish with changes
in the technology’s reliability and, relatedly, its cultural currency. See Johnson, 446
F.3d at 277 (explaining that polygraphs may “deter lying notwithstanding its
arguable or occasional unreliability because of the subject’s fear that it might work,
or be credited by others whether it works or not”); Parisi, 821 F.3d at 349 (noting
that verification testing generally could further rehabilitation and deterrence).
Though Birkedahl is serving a relatively short sentence of 24 months, his
supervised release term nevertheless will not start for nearly a year. In that time,
it is likely that the technology at issue may become more sophisticated or that new
studies regarding the efficacy of the technology will become available. Indeed,
Birkedahl cites in his opening brief two studies, one published in 2002 and one
14 published in 2008, that he asserts support his view that the CVSA is unreliable.
But the considerable age of these studies weighs against the fitness of the issues
for judicial review now. After all, whatever conclusion we might reach today
based on decades-old evidence is even more likely to be superseded by the start
of Birkedahl’s supervised release. Moreover, since one of the studies cited by
Birkedahl found that a version of the CVSA introduced as far back as 1997 detected
deception at a rate comparable to what we have said renders polygraphs a
permissible verification tool, it is reasonable to expect that even incremental
advances in CVSA technology in the interim will be highly relevant to determining
whether, at the time of Birkedahl’s supervision, the CVSA is sufficiently reliable
to advance sentencing goals. 5 Accordingly, given that computer technology is
often rapidly changing, we are unable to predict whether the CVSA’s use will
render the verification testing condition not reasonably related or necessary to the
sentencing goals relevant to Birkedahl at the time it may be imposed. See Balon,
384 F.3d at 46.
5Compare Damphousse at 10, 11 (finding the CVSA to yield an average accuracy rate of approximately 50 percent in a field test), with Johnson, 446 F.3d at 278 (noting that because “even the bottom of the range” of polygraph reliability – at “greater-than-50%” – was “still more-likely-than-not, the technology produces an incentive to tell the truth, and thereby advances the sentencing goals”).
15 Turning to the second prong of the ripeness inquiry, we also identify little
hardship to the parties that would preclude withholding of judicial consideration
at this time. As noted above, “changing computer technology is an appropriate
factor to authorize a modification of supervised release conditions under Section
3583(e).” Id. at 47. And since Birkedahl can challenge the CVSA testing condition
at any time while he is on supervised release, he will not be disadvantaged by the
decision to forego resolution of this technology issue until the commencement of
his supervision.
Because Birkedahl has not begun his term of supervised release, we can only
speculate “at this time whether one method or another, or a combination of
methods,” in a technology-dependent condition will be reasonably necessary to
further the goals of supervision. Id. at 46. Here, “[t]he [CVSA] technology that
holds the key to whether the special condition in this case” is reasonably related
to the sentencing factors is subject to change. Id. Accordingly, we decline to reach
his arguments.
16 C. The Notification of Risk Condition
Finally, Birkedahl maintains that the Western District’s revised standard
risk condition delegates more discretion to the probation officer than this Court’s
precedents allow. But this argument is foreclosed by our recent holding in United
States v. Traficante, which makes clear that this challenge is not ripe. 966 F.3d 99,
105–07 (2d Cir. 2020). Specifically, the condition provides that “[i]f the court
determines . . . that, based on [Birkedahl’s] criminal record, personal history and
characteristics, and the nature and circumstances of [his] offense,” he presents “a
risk of committing further crimes against another person[,] . . . the probation officer
may require [Birkedahl] to notify the person about the risk” and may confirm
compliance. App’x at 84. As we explained in Traficante, any allegedly improper
delegation “is conditioned on the district court finding, during [Birkedahl’s] term
of supervised release, that he poses a risk of committing further crimes against
another person” – a contingency that may never occur. 966 F.3d at 106–07.
Accordingly, this issue is not ripe for review, and therefore provides no basis for
overturning Birkedahl’s sentence.
17 III. CONCLUSION
For the foregoing reasons, we DISMISS Birkedahl’s challenges to the CVSA
and the risk condition, and otherwise AFFIRM the judgment of the district court.