USCA11 Case: 20-12799 Date Filed: 06/15/2021 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 20-12799 Non-Argument Calendar ________________________
D.C. Docket No. 1:20-cr-00168-ELR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSHUA ZUNIGA,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Northern District of Georgia ________________________
(June 15, 2021)
Before MARTIN, JILL PRYOR and BRANCH, Circuit Judges.
PER CURIAM: USCA11 Case: 20-12799 Date Filed: 06/15/2021 Page: 2 of 8
Joshua Zuniga appeals the District Court for the Northern District of
Georgia’s (“Northern District”) modification of his supervised release conditions
to include a requirement that the probation office approve of his mental health
program. He argues that the district court was prohibited from modifying this
condition under res judicata and collateral estoppel because the District Court for
the Middle District of Georgia (“Middle District”), from which his supervised
release was transferred, previously refused to modify the condition. After careful
review, we affirm.
I. BACKGROUND
Zuniga pled guilty to one count of use of interstate and foreign commerce to
transmit information about a minor in the Middle District. The Middle District
imposed a sentence of 46 months’ imprisonment and 5 years’ supervised release,
which included the following special condition (“Special Condition Five”):
You shall participate in a mental health treatment program to include any available sexual offender treatment and shall comply with the treatment regimen as directed by your mental health provider(s). You shall contribute to the costs of such treatment not to exceed an amount determined reasonable by the court approved “U.S. Probation Office’s Sliding Scale for Services”, and shall cooperate in securing any applicable third-party payment, such as insurance or Medicaid.
Doc. 1-2 at 5. 1 Notably, no condition referenced polygraph or plethysmograph
testing.
1 “Doc.” numbers refer to the district court’s docket entries. 2 USCA11 Case: 20-12799 Date Filed: 06/15/2021 Page: 3 of 8
Less than two weeks after Zuniga was released from custody, he filed a
motion in the Middle District for clarification of his supervised release conditions,
including Special Condition Five. Zuniga asserted that his probation officer
interpreted the condition as requiring him to undergo polygraph and
plethysmograph testing, but the order contained no such requirement. The Middle
District scheduled a hearing to address Zuniga’s motion. At the hearing, the
probation officer conceded that Zuniga did not have to undergo plethysmograph
testing but argued that he was required to undergo polygraph testing. Zuniga
contended that polygraph testing was appropriate only if required by his treatment
program. Zuniga also pointed out that his supervised release conditions, as written,
did not require him to attend a program approved by probation.
The district court agreed that Zuniga had to submit to polygraph testing only
if his treatment program required it. The court suggested making probation’s
approval of the treatment program Zuniga chose part of his supervised release
terms, but the probation officer responded that probation was specifically
concerned with including a polygraph test requirement, citing the need for such
testing even after treatment concluded. In response to the probation officer’s
request that the conditions be modified to require polygraph testing after Zuniga
completed the treatment program, the court declined to make the modification but
3 USCA11 Case: 20-12799 Date Filed: 06/15/2021 Page: 4 of 8
explained that the probation office could make another request upon Zuniga’s
completion of the program.
About three months after the hearing, Zuniga’s supervised release was
transferred from the Middle District to the Northern District pursuant to 18 U.S.C.
§ 3605. Shortly thereafter, Zuniga’s probation officer filed a violation report and
petition for summons in the Northern District, alleging that Zuniga had violated the
terms of his supervision by failing to remain at his approved sex offender treatment
provider, Georgia Counseling Center, and beginning treatment at an unapproved
provider.
At a hearing on the violation report in the Northern District, Zuniga admitted
that he left the Georgia Counseling Center, but contested that this constituted a
violation of his supervised release. Zuniga argued that Special Condition Five did
not give probation any role in approving his treatment program, unlike other
conditions that specified probation supervision, or mandate sex offender treatment
unless required by the provider. Additionally, Zuniga produced documents from
his mental health provider indicating that he was being treated for sex addiction;
thus, he maintained, he was complying with the conditions of his supervised
release.
The Northern District agreed that Zuniga had not violated the terms of his
supervised release because he was complying with the conditions as written but
4 USCA11 Case: 20-12799 Date Filed: 06/15/2021 Page: 5 of 8
suggested that he might be “using this [vague] language as [a] loophole[].” Doc.
16 at 18. The court determined that the order needed to be “tighten[ed] up”
because, as written, Zuniga could switch mental health treatment programs at any
point for any reason. Id. at 19. Accordingly, over Zuniga’s objection, the court
modified Special Condition Five to include “participation in the mental health
aftercare program including a psychosexual evaluation and counseling if deemed
necessary and compl[iance] with the conditions of the sex offender contract under
the guidance and supervision of the U.S. Probation Officer.” Doc. 10 at 1.
This is Zuniga’s appeal.
II. STANDARD OF REVIEW
We review the district court’s modification of the terms of supervised
release for an abuse of discretion. See United States v. Serrapio, 754 F.3d 1312,
1318 (11th Cir. 2014). We review de novo a district court’s decision about
whether collateral estoppel applies and will uphold the court’s factual
determinations underlying its legal conclusions unless clearly erroneous. United
States v. Weiss, 467 F.3d 1300, 1308 (11th Cir. 2006). Likewise, we review de
novo whether res judicata bars relitigation of matters decided in a prior proceeding.
Jang v. United Techs. Corp., 206 F.3d 1147, 1149 (11th Cir. 2000).
5 USCA11 Case: 20-12799 Date Filed: 06/15/2021 Page: 6 of 8
III. DISCUSSION
Zuniga argues that collateral estoppel and res judicata precluded the
Northern District from modifying Special Condition Five because the Middle
District previously concluded that the condition did not require him to undergo
polygraph testing unless mandated by his provider or to obtain probation’s
approval regarding his treatment program. We disagree.
Under 18 U.S.C. § 3605
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USCA11 Case: 20-12799 Date Filed: 06/15/2021 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 20-12799 Non-Argument Calendar ________________________
D.C. Docket No. 1:20-cr-00168-ELR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSHUA ZUNIGA,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Northern District of Georgia ________________________
(June 15, 2021)
Before MARTIN, JILL PRYOR and BRANCH, Circuit Judges.
PER CURIAM: USCA11 Case: 20-12799 Date Filed: 06/15/2021 Page: 2 of 8
Joshua Zuniga appeals the District Court for the Northern District of
Georgia’s (“Northern District”) modification of his supervised release conditions
to include a requirement that the probation office approve of his mental health
program. He argues that the district court was prohibited from modifying this
condition under res judicata and collateral estoppel because the District Court for
the Middle District of Georgia (“Middle District”), from which his supervised
release was transferred, previously refused to modify the condition. After careful
review, we affirm.
I. BACKGROUND
Zuniga pled guilty to one count of use of interstate and foreign commerce to
transmit information about a minor in the Middle District. The Middle District
imposed a sentence of 46 months’ imprisonment and 5 years’ supervised release,
which included the following special condition (“Special Condition Five”):
You shall participate in a mental health treatment program to include any available sexual offender treatment and shall comply with the treatment regimen as directed by your mental health provider(s). You shall contribute to the costs of such treatment not to exceed an amount determined reasonable by the court approved “U.S. Probation Office’s Sliding Scale for Services”, and shall cooperate in securing any applicable third-party payment, such as insurance or Medicaid.
Doc. 1-2 at 5. 1 Notably, no condition referenced polygraph or plethysmograph
testing.
1 “Doc.” numbers refer to the district court’s docket entries. 2 USCA11 Case: 20-12799 Date Filed: 06/15/2021 Page: 3 of 8
Less than two weeks after Zuniga was released from custody, he filed a
motion in the Middle District for clarification of his supervised release conditions,
including Special Condition Five. Zuniga asserted that his probation officer
interpreted the condition as requiring him to undergo polygraph and
plethysmograph testing, but the order contained no such requirement. The Middle
District scheduled a hearing to address Zuniga’s motion. At the hearing, the
probation officer conceded that Zuniga did not have to undergo plethysmograph
testing but argued that he was required to undergo polygraph testing. Zuniga
contended that polygraph testing was appropriate only if required by his treatment
program. Zuniga also pointed out that his supervised release conditions, as written,
did not require him to attend a program approved by probation.
The district court agreed that Zuniga had to submit to polygraph testing only
if his treatment program required it. The court suggested making probation’s
approval of the treatment program Zuniga chose part of his supervised release
terms, but the probation officer responded that probation was specifically
concerned with including a polygraph test requirement, citing the need for such
testing even after treatment concluded. In response to the probation officer’s
request that the conditions be modified to require polygraph testing after Zuniga
completed the treatment program, the court declined to make the modification but
3 USCA11 Case: 20-12799 Date Filed: 06/15/2021 Page: 4 of 8
explained that the probation office could make another request upon Zuniga’s
completion of the program.
About three months after the hearing, Zuniga’s supervised release was
transferred from the Middle District to the Northern District pursuant to 18 U.S.C.
§ 3605. Shortly thereafter, Zuniga’s probation officer filed a violation report and
petition for summons in the Northern District, alleging that Zuniga had violated the
terms of his supervision by failing to remain at his approved sex offender treatment
provider, Georgia Counseling Center, and beginning treatment at an unapproved
provider.
At a hearing on the violation report in the Northern District, Zuniga admitted
that he left the Georgia Counseling Center, but contested that this constituted a
violation of his supervised release. Zuniga argued that Special Condition Five did
not give probation any role in approving his treatment program, unlike other
conditions that specified probation supervision, or mandate sex offender treatment
unless required by the provider. Additionally, Zuniga produced documents from
his mental health provider indicating that he was being treated for sex addiction;
thus, he maintained, he was complying with the conditions of his supervised
release.
The Northern District agreed that Zuniga had not violated the terms of his
supervised release because he was complying with the conditions as written but
4 USCA11 Case: 20-12799 Date Filed: 06/15/2021 Page: 5 of 8
suggested that he might be “using this [vague] language as [a] loophole[].” Doc.
16 at 18. The court determined that the order needed to be “tighten[ed] up”
because, as written, Zuniga could switch mental health treatment programs at any
point for any reason. Id. at 19. Accordingly, over Zuniga’s objection, the court
modified Special Condition Five to include “participation in the mental health
aftercare program including a psychosexual evaluation and counseling if deemed
necessary and compl[iance] with the conditions of the sex offender contract under
the guidance and supervision of the U.S. Probation Officer.” Doc. 10 at 1.
This is Zuniga’s appeal.
II. STANDARD OF REVIEW
We review the district court’s modification of the terms of supervised
release for an abuse of discretion. See United States v. Serrapio, 754 F.3d 1312,
1318 (11th Cir. 2014). We review de novo a district court’s decision about
whether collateral estoppel applies and will uphold the court’s factual
determinations underlying its legal conclusions unless clearly erroneous. United
States v. Weiss, 467 F.3d 1300, 1308 (11th Cir. 2006). Likewise, we review de
novo whether res judicata bars relitigation of matters decided in a prior proceeding.
Jang v. United Techs. Corp., 206 F.3d 1147, 1149 (11th Cir. 2000).
5 USCA11 Case: 20-12799 Date Filed: 06/15/2021 Page: 6 of 8
III. DISCUSSION
Zuniga argues that collateral estoppel and res judicata precluded the
Northern District from modifying Special Condition Five because the Middle
District previously concluded that the condition did not require him to undergo
polygraph testing unless mandated by his provider or to obtain probation’s
approval regarding his treatment program. We disagree.
Under 18 U.S.C. § 3605, a court to which jurisdiction over a person on
supervised release is transferred “is authorized to exercise all powers over the . . .
releasee that are permitted” under the statute. One such power includes the
authority to “modify, reduce, or enlarge the conditions of supervised release[] at
any time prior to the expiration of the term of supervised release.” 18 U.S.C.
§ 3583(e)(2). Before modifying the conditions of supervised release, the court
“must hold a hearing, at which the person has the right to counsel and an
opportunity to make a statement and present any information in mitigation.” Fed.
R. Crim. P. 32.1(c)(1). Here, the Northern District had jurisdiction over Zuniga’s
supervised release, it held a hearing where Zuniga was represented by counsel, and
it had the authority to modify the condition. Thus, we discern no error in the
Northern District’s decision to modify Special Condition Five.
Neither res judicata nor collateral estoppel precluded the Northern District
from modifying Zuniga’s supervised release conditions. For res judicata to bar a
6 USCA11 Case: 20-12799 Date Filed: 06/15/2021 Page: 7 of 8
subsequent case, four elements must be present: “(1) there is a final judgment on
the merits; (2) the decision was rendered by a court of competent jurisdiction;
(3) the parties, or those in privity with them, are identical in both suits; and (4) the
same cause of action is involved in both cases.” Maldonado v. U.S. Att’y Gen.,
664 F.3d 1369, 1375 (11th Cir. 2011) (internal quotation marks omitted). To
invoke collateral estoppel, a party must establish that “(1) the issue in the pending
case is identical to that decided in a prior proceeding; (2) the issue was necessarily
decided in the prior proceeding; (3) the party to be estopped was a party or was
adequately represented by a party in the prior proceeding; and (4) the precluded
issue was actually litigated in the prior proceeding.” Weiss, 467 F.3d at 1308.
Res judicata does not apply because the first element is lacking: there was
no final judgment on the merits in the Middle District. The Middle District
interpreted Special Condition Five but reserved ruling on whether to modify it or
any other conditions of Zuniga’s supervision. The court never declared that it was
rendering a final decision regarding the conditions or that the conditions could not
be modified. Nor could it have, as district courts may modify the conditions of a
person’s supervised release “at any time” before the term expires. 18 U.S.C.
§ 3583(e)(2).
As to collateral estoppel, Zuniga is mistaken that the issue on which he
attempts to invoke it—whether Special Condition Five could be modified—was
7 USCA11 Case: 20-12799 Date Filed: 06/15/2021 Page: 8 of 8
necessarily decided by the Middle District; thus, he cannot establish the second
element of collateral estoppel. The Middle District interpreted the language in
Special Condition Five as not requiring polygraph testing unless mandated by his
mental health treatment program and did not modify the conditions to explicitly
require probation’s approval of his treatment program. And the Northern District
did not disagree with the Middle District’s interpretation; in fact, the court
concluded that Zuniga was in compliance with the conditions as written. The
Northern District simply decided to exercise its authority under § 3583(e)(2) to
modify the condition. The Middle District’s interpretation of Special Condition
Five did not preclude the Northern District from modifying it—indeed, Zuniga has
not identified any authority indicating that a district court’s interpretation of a
condition of supervised release would bar another district court from subsequently
modifying the condition. What is more, under Zuniga’s theory, a court would
never be able to modify a term or condition of supervised release that it or another
district court previously interpreted or modified. The theory runs contrary to the
plain language of 18 U.S.C. § 3583(e)(2), which authorizes a district court to
modify, reduce, or enlarge the conditions of supervised release at any time.
For the foregoing reasons, we affirm the district court’s order.
AFFIRMED.