United States v. Jeffrey A. Johnson

446 F.3d 272, 2006 U.S. App. LEXIS 10925
CourtCourt of Appeals for the Second Circuit
DecidedMay 1, 2006
DocketDocket 04-4992 CR, 05-0248(L), 05-0256(CON)
StatusPublished
Cited by131 cases

This text of 446 F.3d 272 (United States v. Jeffrey A. Johnson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Jeffrey A. Johnson, 446 F.3d 272, 2006 U.S. App. LEXIS 10925 (2d Cir. 2006).

Opinion

DENNIS JACOBS, Circuit Judge.

Jeffrey A. Johnson (“Johnson”) is currently serving three years of supervised release, imposed by the United States District Court for the Northern District of New York (Thomas J. McAvoy, Judge) as part of his sentence for sexual predation against minors. He challenges certain modifications to his conditions of supervised release. 1 Johnson argues that: (i) mandatory polygraph testing to ensure compliance with the terms of his supervised release is not reasonably related to the purposes of sentencing and is a violation of his Fifth Amendment rights against self-incrimination; (ii) a bar on direct or indirect contact with minors is unconstitutionally vague; and (iii) a ban on using any computer with Internet access is an excessive deprivation of liberty.

BACKGROUND

a. Johnson’s Criminal History

Johnson is a convicted sex offender. He is also an Aerospace Engineer and a sophisticated user of computers. Between 1995 and 1997, Johnson used the Internet *275 to conduct sexually-explicit conversations with minors, and to lure several of them to meetings. He had sex with two minors and was arrested while on his way to have sex with a third.

Johnson pleaded guilty and was principally sentenced to 88 months in prison to be followed by three years of supervised release. Conditions governing Johnson’s supervised release were ordered in three waves. At sentencing, the court imposed three conditions: (1) that Johnson participate in a mental health evaluation and/or treatment program; (2) that Johnson not associate with any individual under the age of 18 (except by permission of his probation officer); and (3) that Johnson not possess or use a computer to access any on-line computer service (except by permission of his probation officer).

On July 22, 2004, the Probation Departs ment petitioned for several modifications to Johnson’s conditions of supervised release: (1) mandatory sex-offender treatment using polygraph testing “to obtain information necessary for risk management and treatment”; (2) a prohibition on direct or indirect contact with minors and presence in areas in which minors are likely to congregate (such as schools, child care centers, and playgrounds); and (3) relaxation of the previous total ban on Johnson’s computer use if Johnson participated in the Computer Restriction and Monitoring Program, which would have allowed the Probation Office to install software aimed at monitoring his computer use. Johnson challenged all of these modifications.

b. Polygraph Testing

Johnson objected to polygraph testing on two grounds. First, he argued that, without use and derivative use immunity, he could be deprived of his Fifth Amendment rights against self-incrimination and face the dilemma of confessing his sins or remaining silent (and going to jail for violating a condition of supervised release). Second, Johnson argued that the district court should not impose polygraph testing because such testing is unreliable and not reasonably related to the purposes of sentencing, and therefore cannot be employed in a special condition of supervised release.

The district court agreed with the Probation Department on the benefits of polygraph testing, but partially accommodated Johnson’s Fifth Amendment concern by adding certain safeguards. The court limited the scope of examinations to “information necessary for supervision, case monitoring, and treatment,” and made clear that (though Johnson would be compelled to answer) “if a truthful answer would expose him to a prosecution for a crime different from the one on which he was already convicted,” he would preserve his “right to challenge in a court of law the use of such statements as violations of his Fifth Amendment rights” — or, “[i]n other words, [Johnson] must answer the questions posed to him, but, by answering, he will not be waiving his Fifth Amendment rights with respect to any criminal prosecution unrelated to the conviction for which he is now on supervised release.” Johnson appeals these rulings.

c. Ban on Direct and Indirect Contact with Minors

The second modification sought by the Probation Department was to prohibit “any direct or indirect contact with a person under age 18.” Johnson challenged this proposed modification as both vague and impossible: vague, because it “provides no notice to [him] as to what conduct he is prohibited from engaging in”; impossible, because “the possibilities for making inadvertent ‘indirect’ contact with persons under age 18 are a virtual certainty upon *276 [his] leaving his house and conducting normal day to day business.”

The district court agreed with Johnson that “the word ‘indirect’ casts too broad of a net” and ihodified Johnson’s conditions to require that he “reasonably avoid and/or remove himself from situations in which he has indirect contact with a minor.” The modified conditions also require that “[Johnson] shall not have any direct contact with a person under the age of 18 unless it' is supervised by a person approved of by the probation officer.” The modification also takes into account the indeterminacy of the word “indirect” by decreeing that Johnson “shall not have indirect contact with a person under the age of 18 through another person or through a device (including a telephone, computer, radio, or other means) unless it is supervised by a person approved of by the probation officer.” (emphasis added). Johnson argues that in spite of the district court’s stated objective, the plain language of the modification still allowed for inadvertent violation. The government supports the ban as worded.

d. Modification Banning Use of Computers with Internet Access

Johnson objected to computer monitoring; his objection became moot when this condition was modified a second time. In December 2004 the Probation Department, in response to the comments of treatment officials, requested a further modification of Johnson’s conditions of supervised release. The Government sought to bar Johnson from using any computer with Internet access, until his progress in treatment reduced his risk of recidivism. The district court ordered an evidentiary hearing to explore the tension between Second Circuit precedent guaranteeing minimal Internet access and the perceived necessity of an outright ban in this case.

At the two-day hearing, Johnson’s Probation Officer — Agnes McBride — testified that Johnson was expelled from treatment by the Tompkins County Mental Health Clinic (“Treatment Agency”) for failing to agree to refrain from using the Internet and for otherwise failing to participate fully in his program. Ms. McBride accused Johnson of complying with his treatment program “superficially,” doing what he was specifically asked to do without “acknowledging] that he needs to make any changes in his life-style.” Ms. McBride viewed this generally resistant attitude as a sign that Johnson remained a high risk to re-offend, and that stepped-up limits on Internet access were needed.

Linda Riley, a clinic supervisor with the Treatment Agency, confirmed that an outright ban on Internet access was needed for Johnson’s treatment: “[T]he Internet is an instrument of his offending ...

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Bluebook (online)
446 F.3d 272, 2006 U.S. App. LEXIS 10925, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jeffrey-a-johnson-ca2-2006.