United States v. Jeffrey P. Taylor

796 F.3d 788, 2015 U.S. App. LEXIS 13771, 2015 WL 4653148
Court of Appeals for the Seventh Circuit·Decided August 6, 2015·No. 14-3790·Published·Cited by 31 cases

Opinions

WILLIAMS, Circuit Judge.

Jeffrey Taylor appeals several special conditions of the probation he received after his sexually explicit displays on a web camera and conversations in an internet chatroom with what he thought to be a thirteen-year-old girl. We agree with him that the record does not support a ban on viewing legal adult pornography. Adult pornography did not facilitate or lead to Taylor’s offense here, and there is no evidence or finding that viewing otherwise legal pornography would increase the likelihood he would recidivate. In light of his use of his computer to attempt to contact a young teenage girl, however, we affirm the imposition of a condition that requires Taylor to make his internet-capable devices available for inspection, even without any reasonable suspicion that he has committed a new crime. Finally, we agree with Taylor that the special conditions as currently worded contain an overly broad complete ban on knowing contact with minors.

I. BACKGROUND

Taylor’s ease has been before our court twice. During his most recent appeal, we [790]*790summarized Taylor’s offense conduct as follows:

On August 2, 2006, Taylor entered an online chat room and began a conversation with “elliegirll234.” “Ellie” identified herself as a 13-year-old girl from Lafayette, Indiana. Taylor responded that he was 37 and from Logansport. The conversation quickly became graphic as Taylor described his physique and asked whether Ellie had engaged in sexual acts with her boyfriend. Taylor wanted to see Ellie [] masturbate in front of a webcam; he asked her whether she had a webcam, but she indicated that she did not. Taylor then turned on his webcam and masturbated in front of it so that Ellie could see.
Taylor and Ellie conversed online on multiple occasions over the next two weeks. The conversations were always sexual in nature. On August 14 the conversation turned to arranging a meeting in person, and Taylor asked Ellie to fantasize about what would happen if the two met. Taylor expressed some concern about meeting in person because he “could go to jail.” (In an earlier conversation, he had referred to Ellie as “jailbait.”) During this online chat, Taylor masturbated a second time in front of his webcam so that Ellie could see.
Ellie was not a 13-year-old girl but an online identity assumed by law-enforcement personnel working on a joint federal-state sting operation targeting child sex offenders. One of the investigators used a picture of herself from when she ' was 15 or 16 to help create the chat-room profile.

United States v. Taylor, 777 F.3d 434, 437 (7th Cir.2015).

A jury convicted Taylor of violating 18 U.S.C. § 2422(b), although we overturned that conviction on appeal because his conduct did not constitute “sexual activity” under that statute. United States v. Taylor, 640 F.3d 255, 259-60 (7th Cir.2011). The government then charged Taylor for the same conduct under a different statute, this time 18 U.S.C. § 1470, which punishes the transfer or attempted transfer of obscene material to a person under the age of sixteen years through a means of interstate commerce. A jury found Taylor guilty, and he received a sentence of three years of probation. (The judge recognized that Taylor had already served more than four years in custody on the overturned conviction, which exceeded the United States Sentencing Guidelines’ recommendation for the new conviction.) The district court entered final judgment on August 15, 2012.

Taylor filed his notice of appeal the next day. On September 25, 2014, while his appeal was pending, he filed a motion asking the district court to modify the conditions of his probation. The district court granted in part and denied in part this request in an order dated December 22, 2014. That same day, Taylor filed a notice of appeal of the district court’s order modifying the probation conditions. About a month later, we upheld Taylor’s conviction on appeal. United States v. Taylor, 777 F.3d 434 (7th Cir.2015). Taylor contests in this appeal certain special conditions imposed in the December 22, 2014 order that modified the conditions of his probation.

II. ANALYSIS

A. Jurisdiction to Modify Special Conditions

An initial question is whether the district court had jurisdiction to enter the December 22, 2014 order modifying Taylor’s conditions of probation. Because the district court’s order came after Taylor filed his notice of appeal of his criminal conviction, one might wonder whether the [791]*791district court had the authority to modify the conditions of Taylor’s probation as it did. See Griggs v. Provident Consumer Disc., Co., 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) (per curiam) (“The filing of a notice of appeal is an event of jurisdictional significance — it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.”). The government and Taylor both took the position during briefing that the district court had the authority, by virtue of 18 U.S.C. § 3563(c), to modify Taylor’s conditions of probation even though the appeal of his conviction was pending in our court. Nonetheless, we must fulfill our independent obligation to ensure that federal courts have subject-matter jurisdiction throughout the proceedings. See United States v. Beard, 745 F.3d 288, 291 (7th Cir.2014).

The statute at issue, 18 U.S.C. § 3563(c), provides that “[t]he court may modify, reduce, or enlarge the conditions of a sentence of probation at any time prior to the expiration or termination of the term of probation.... ” The question is whether the words “at any time” in the statute give the district court the authority to enter the order modifying the conditions of probation when it did.

After the oral argument in this case, we considered an analogous situation in United States v. Ramer, 787 F.3d 837 (7th Cir.2015) (per curiam). There, a defendant was convicted of conspiracy to commit wire fraud and sentenced to forty-two months’ imprisonment and three years of supervised release. Id. at 838. One special condition of supervised release ordered the payment of restitution “at a rate of not less than $100 per month.” The defendant filed an appeal, arguing that the restitution order should have been premised on his ability to pay. While briefing was taking place in our court, the district court amended its judgment to condition the defendant’s restitution payment obligation on the defendant’s ability to pay. Id.

Our first question was whether the district court had jurisdiction to revise the judgment since the defendant had already filed his notice of appeal. We recognized that ordinarily, filing a notice of appeal means the district court no longer has jurisdiction. Id. (citing United States v. Brown,

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United States v. Jeffrey P. Taylor, 796 F.3d 788, 2015 U.S. App. LEXIS 13771, 2015 WL 4653148 (7th Cir. 2015).

796 F.3d 788 (United States v. Jeffrey P. Taylor) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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