United States v. Paul

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 18, 2001
• Docket: 00-41299
• Status: Published

Opinion

REVISED DECEMBER 18, 2001 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

____________________

No. 00-41299 ____________________

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

RONALD SCOTT PAUL

Defendant-Appellant

_________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas _________________________________________________________________ November 19, 2001 Before KING, Chief Judge, DAVIS, Circuit Judge, and VANCE, District Judge.*

KING, Chief Judge:

After pleading guilty to a charge of knowingly possessing

child pornography in violation of 18 U.S.C. § 2252A, Defendant-

Appellant Ronald Scott Paul was sentenced to five years of

imprisonment and three years of supervised release pursuant to

section 2G2.2 of the United States Sentencing Guidelines. Paul

* District Judge of the Eastern District of Louisiana, sitting by designation.

1 appeals to this court, challenging the district court’s

sentencing determination, the conditions of his supervised

release, and the constitutionality of the statute of conviction.

For the following reasons, we AFFIRM Paul’s conviction and his

sentencing determination, including the conditions of supervised

release.

I. Factual and Procedural Background

On May 8, 2000, Defendant-Appellant Ronald Scott Paul took

his personal computer to Electronic Services and Repair, a small

computer repair business in Port Isabel, Texas. While working on

the computer, a technician discovered child pornography on the

hard drive and contacted the Federal Bureau of Investigations

(“FBI”). The FBI’s background check on Paul revealed a 1986

offense involving child pornography. After Paul had retrieved

his computer from the repair technician, FBI agents searched

Paul’s residence pursuant to a valid warrant. The agents seized

the computer, which contained a large number of files with images

of child pornography that had been downloaded from the Internet.

The agents also seized assorted photographs of children,

magazines with nude photographs of children and adults, books

with pictures of nude prepubescent boys, videotapes of random

children filmed in public settings, a large bag of children’s

clothes, and several children’s swimsuits covered with sand.

Additionally, the agents seized a medical bag containing

2 basic medical supplies and Spanish-language flyers advertising

lice removal for children. In the flyers, Paul informed parents

that he would spray their children with a product that kills

lice. The flyers also stated that Paul would conduct a complete

physical examination on each child for “overall health,” which

necessarily required the child to completely undress. The agents

also found between ten and twenty personal cameras in Paul’s

residence.1

Further review of Paul’s computer revealed electronic mail

communications (“e-mails”) discussing sources of child

pornography, including websites, chat rooms, and newsgroups that

allowed both receiving and sending of pornographic images. In

one of these e-mails, Paul discussed how easy it was to find

“young friends” by scouting single, dysfunctional parents through

Alcoholics Anonymous or local welfare offices and winning their

friendship, thereby securing access to their young sons.

On July 17, 2000, Paul pled guilty to one charge of

knowingly possessing a computer hard drive with three or more

images of child pornography that traveled through interstate

commerce, in violation of the Child Pornography Prevention Act.

See 18 U.S.C. § 2252A(a)(5)(B) (1994). The government offered

1 According to Paul, his hobbies include photography and camera repair. He maintains that he earned about $200 monthly purchasing broken cameras over the Internet, fixing them, and reselling them.

3 four images as samples of the child pornography that Paul

possessed. Paul admitted that these exhibits were images he

received from the Internet and stored on his computer hard drive.

After Paul pled guilty to possession of child pornography

and was rearraigned, the court ordered the probation office to

prepare a presentence report (“PSR”). Applying section 2G2.2 of

the Sentencing Guidelines2 (“section 2G2.2”), the PSR determined

that Paul’s total offense level was 35. See U.S. SENTENCING

GUIDELINES MANUAL § 2G2.2 (1998). The PSR then factored in Paul’s

criminal history category (category I), which resulted in an

imprisonment range of 121 to 151 months. However, the PSR noted

that the statutory maximum penalty was 60 months.

At the sentencing hearing, Paul objected to the PSR’s use of

section 2G2.2, arguing that the district court should have

applied section 2G2.43 instead because he was charged with

possession of child pornography rather than trafficking in child

pornography.4 The probation officer and the government both

2 Section 2G2.2 is applicable to “Trafficking in Material Involving the Sexual Exploitation of a Minor; Receiving, Transporting, Shipping, or Advertising Material Involving the Sexual Exploitation of a Minor; [and] Possessing Material Involving the Sexual Exploitation of a Minor With Intent to Traffic.” U.S. SENTENCING GUIDELINES MANUAL § 2G2.2 (1998). 3 Section 2G2.4 is applicable to “Possession of Materials Depicting a Minor Engaged in Sexually Explicit Conduct.” U.S. SENTENCING GUIDELINES MANUAL § 2G2.4 (1998). 4 According to Paul, applying section 2G2.4 would have yielded a much shorter imprisonment range of 27 to 33 months.

4 maintained that section 2G2.2 was the appropriate guideline

because a cross-reference in section 2G2.4 requires use of

section 2G2.2 if there is indication of “intent to traffic.”5

See U.S. SENTENCING GUIDELINES MANUAL § 2G2.4 (1998). To support its

claim that Paul intended to traffic in child pornography, the

government offered five e-mails from Paul’s computer.6 Paul

5 The cross-reference reads: “[i]f the offense involved trafficking in material involving the sexual exploitation of a minor (including receiving, transporting, shipping, advertising, or possessing material involving the sexual exploitation of a minor with intent to traffic), apply §2G2.2.” U.S. SENTENCING GUIDELINES MANUAL § 2G2.4 (1998). 6 Exhibit One was an e-mail from Ultimate Anonymity (a business providing anonymous Internet accounts) confirming Paul’s account. Exhibit Two was an e-mail exchange between Paul and Stewart Anderson on October 29, 1999, in which Anderson warned Paul not to post on the newsgroup alt.binaries.pictures.asparagus, as this newsgroup was considered illegal and hackers could find out the identities of those posting messages. Anderson advised Paul to view or download pictures rather than post to newsgroups, and told him that it might be safe to post “innocent” pictures in a newsgroup called alt.binaries.pictures.boys. Paul replied to Anderson, thanking him for the advice and stating: “It was me. I’m still very new at this and don’t understand the do’s and don’ts. But with help for [sic] friends I’ll learn, hopefully before I get busted for something I don’t understand.” Exhibit Three was an e-mail exchange between Paul and an unidentified individual calling himself “Ghost Writer.” Paul asked Ghost Writer whether a series of symbols that he had seen in a newsgroup was a picture or a code and how to read it. When Ghost Writer responded that he was unsure, Paul replied: “It is there. I think I’m doing it right. I’m not downloading anything and I’m not posting now, Caveman clued me in on that.” Exhibits Four and Five are e-mails from Paul to Anderson dated October 30 and 31, 1999, in which Paul stated his desire to give Anderson three books with titles suggesting that they contained child pornography. Paul told Anderson that he could pay the postage, but that otherwise the books would be a gift.

5 argued that these e-mails were inadequate to demonstrate

trafficking or intent to traffic, as the messages contain no

direct statements indicating that he sent images through the mail

or the Internet.

The district court overruled Paul’s objection, determining

that pursuant to the section 2G2.4 cross-reference, section 2G2.2

was the appropriate guideline. Because the resulting sentence

was greater than the statutory maximum, the district court

imposed the statutory maximum sentence of five years’

imprisonment, plus a three-year term of supervised release, and a

special assessment fee of $100.

The district court imposed a number of special conditions on

Paul’s supervised release term. He must “undergo a complete

psychological evaluation and/or participate in a sex

offender/mental health program as deemed necessary and approved

by the probation officer.” Paul is also directed to avoid

“direct and indirect contact with minors,” as well as “places,

establishments, and areas frequented by minors,” and is

prohibited from “engaging in any paid occupation or volunteer

service which exposes him either directly or indirectly to

minors.” The conditions further provide that Paul “shall not

have[,] possess or have access to computers, the Internet,

photographic equipment, audio/video equipment, or any item

capable of producing a visual image.” Finally, Paul is

6 instructed to “register with the sex offender registration in any

state where [he] . . . resides, is employed, carries on a

vocation, or is a student, as directed by the probation officer

and as required by law.”

On appeal, Paul challenges his conviction and sentence on

three grounds. First, Paul argues that the statute of

conviction, the Child Pornography Prevention Act (“CPPA”), is

unconstitutionally vague and overbroad. Second, he argues that

the district court improperly applied the Sentencing Guidelines

in using section 2G2.2 to determine his base offense level.

Finally, Paul challenges the conditions of his supervised

release, arguing that he was not given pre-sentence notice of the

requirement that he register as a sex offender and that the

district court abused its discretion by imposing special

conditions restricting his contact with minors and his ability to

access “computers, the Internet, photographic equipment, audio-

video equipment, or any item capable of producing a visual

image.”

II. The Constitutionality of the Child Pornography Prevention Act

Paul contends that the language in 18 U.S.C. § 2256(8)(B)

defining “child pornography” to include an image that “appears to

be” or “conveys the impression” of minors engaging in sexually

explicit conduct is impermissibly vague and overbroad under the

First Amendment. He acknowledges that this circuit’s recent

7 precedent forecloses this facial challenge. See United States v.

Fox, 248 F.3d 394, 404-07 (5th Cir. 2001) (holding that

prohibiting possession of an image that “appears to be” or

“conveys the impression of” minors engaging in sexually explicit

conduct does not violate the First Amendment). However, Paul

points out that the Supreme Court recently granted certiorari in

Free Speech Coalition v. Reno, 198 F.3d 1083 (9th Cir. 1999),

cert. granted sub nom., Ashcroft v. Free Speech Coalition, 121

S.Ct. 876 (2001), to consider whether this language in the CPPA

is unconstitutionally vague or overbroad. Thus, he asks this

court to postpone deciding the issue until the Supreme Court

decides Free Speech Coalition.

We decline this invitation. A facial challenge to the CPPA

is foreclosed by Fox, which is the binding law of this circuit.

Moreover, as the government correctly points out, the Supreme

Court’s resolution of Free Speech Coalition will not affect the

validity of Paul’s conviction, as he was not convicted under the

portions of the statute that are under challenge in that case.

Paul’s indictment specifically references the definition of

“child pornography” contained in 18 U.S.C. § 2256(8)(A), which

defines child pornography as any visual depiction of sexually

explicit conduct where “the production of such visual depiction

involves the use of a minor engaging in sexually explicit

conduct.” This definition, unlike the definition contained in §

8 2256(8)(B) that is at issue in Free Speech Coalition, does not

contain the language that Paul asserts is constitutionally

problematic.

Delaying resolution of this constitutional challenge until

after the Supreme Court decides Free Speech Coalition would be

neither necessary nor useful, as the charges on which Paul was

indicted and to which he pled guilty reference a definitional

provision of the statute that is not challenged in Free Speech

Coalition. Accordingly, we affirm Paul’s conviction under the

CPPA.

III. The Sentencing Determination

This court reviews the district court’s application of the

Sentencing Guidelines de novo and its factual findings for clear

error. See United States v. Stevenson, 126 F.3d 662, 664 (5th

Cir. 1997). We “give due deference to the district court’s

application of the guidelines to the facts.” 18 U.S.C. § 3742(e)

(1994).7

“When sentencing a defendant, the district court must first

determine which offense guideline section is most applicable to

7 The Supreme Court recently elaborated on the meaning of this statutory provision in United States v. Buford, 121 S.Ct. 1276 (2001). The Court held that the deference that is due under 18 U.S.C. § 3742(e) depends on the nature of the question presented. In that case, the Court determined that deferential review was appropriate “[i]n light of the fact-bound nature of the legal decision, the comparatively greater expertise of the District Court, and the limited value of uniform court of appeals precedent.” Id. at 1281.

9 the offense of conviction, generally by reference to the

guidelines’ statutory index found at Appendix A thereto.” United

States v. Principe, 203 F.3d 849, 851 (5th Cir. 2000). The entry

in the statutory index for 18 U.S.C. § 2252A (the statute of

conviction in the instant case) refers to both section 2G2.2 and

section 2G2.4 as the applicable guidelines. If the statutory

index refers to more than one guideline section for a particular

statute, “the district court must select the most appropriate

section based upon the nature of the conduct charged in the count

for which the defendant was convicted.” Id.; see also U.S.

SENTENCING GUIDELINES MANUAL § 1B1.2 cmt. n.1 (1998).

Paul was convicted of “possession of a computer hard drive

that contained three or more images of child pornography.” Thus,

Principe and the commentary to section 1B1.2 indicate that, of

the two guidelines referenced in the statutory index for § 2252A,

the appropriate guideline for Paul’s offense is section 2G2.4

(the guideline applicable to “Possession of Materials Depicting a

Minor Engaged in Sexually Explicit Conduct”). However, section

2G2.4 contains a cross-reference instructing sentencing courts to

apply section 2G2.2 (the provision applicable to “Trafficking in

Material Involving Sexual Exploitation of a Minor; Receiving,

Transporting, Shipping, or Advertising Material Involving the

Sexual Exploitation of a Minor; [and] Possessing Material

Involving the Sexual Exploitation of a Minor with Intent to

10 Traffic”) if the possession offense involves trafficking in child

pornography, including receiving, transporting, shipping,

advertising, or possessing child pornography with intent to

traffic. In determining whether the cross-reference provision is

applicable, the sentencing court may consider other “relevant

conduct” in addition to the conduct charged in the count for

which Paul was convicted.8

The district court primarily relied upon the e-mails offered

by the government at the sentencing hearing in concluding that

section 2G2.2 was the appropriate guideline in the instant case.

The court found that the e-mail exchange between Paul and

Anderson discussing the books that Paul wanted to give to

Anderson was sufficient evidence of intent to traffic. The

district court also pointed to Paul and Anderson’s earlier e-mail

exchange regarding Paul’s posting on the “asparagus” newsgroup

and his e-mail exchange with Ghost Writer as further indications

that Paul had, at some point, posted images that he acknowledged

could get him “busted.” While there was no indication from

either of these e-mail exchanges that the “postings” in question

8 Section 1B1.3 of the Sentencing Guidelines instructs that “cross-references in Chapter Two . . . shall be determined on the basis of . . . all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant . . . that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense . . . all harm that resulted from the acts . . . and all harm that was the object of such acts.” U.S. SENTENCING GUIDELINES MANUAL § 1B1.3(a) (1998).

11 were images (as opposed to text messages), the district court

found that it was reasonable to infer that images were involved.

Paul contends that the district court erred in invoking

section 2G2.4’s cross-reference to section 2G2.2 because this

case did not involve trafficking in child pornography. Paul

argues that his offer to give Anderson the book collection is

insufficient to support a finding that Paul was trafficking or

intended to traffic in child pornography. He contends that

giving Anderson the books would have been a purely gratuitous

act, rather than bartering or trading, and thus cannot qualify as

trafficking. Moreover, Paul claims that he conditioned his offer

to give Anderson the books on Paul’s moving to Honduras, which

Paul maintains that he never actually intended to do. Paul

similarly argues that the October 29 e-mail exchange regarding

his posting activities on the asparagus newsgroup cannot show

trafficking or intent to traffic, as this exchange demonstrates

only that he “posted one unknown item at an unknown time” at

least seven months before he was charged in the instant case.

Paul also contends that in order for the cross-reference in

section 2G2.4 to apply, the government must prove that the items

allegedly trafficked actually contained child pornography.

Because the government did not prove that either the postings

Paul referred to in his e-mails or the books Paul offered to give

Anderson contained a “lascivious exhibition of the genitals,”

12 Paul maintains that any conclusion that these images contained

child pornography is purely speculative.

In determining whether the district court correctly applied

the Sentencing Guidelines to the facts of the instant case, this

court adopts a deferential standard of review. As the Supreme

Court indicated in Buford, deference to the district court’s

determination is appropriate when the application of a Sentencing

Guidelines provision involves an extremely fact-bound inquiry,

when the “legal results depend[] heavily upon an understanding of

the significance of case-specific details,” and when there is

correspondingly limited value in uniform appellate precedent due

to the level of factual nuance involved. 121 S.Ct. at 1280-81.

Without question, determining whether the language contained in

Paul’s e-mails adequately evidences his intent to traffic in

child pornography in light of his other “relevant conduct” is a

highly fact-bound inquiry. Consequently, the district court’s

familiarity with the details of the case is extremely valuable to

this determination, and the precedential effect of the result is

minimal. Under Buford, deferential review is therefore

appropriate.

The district court determined that Paul’s conduct went

beyond mere possession and constituted “possession with intent to

traffic.” There are two implicit determinations underlying this

conclusion that warrant detailed analysis: (1) the determination

13 that the e-mails were indicative of an intent to “traffic,” and

(2) the determination that the materials that Paul intended to

traffic constituted “child pornography” under the statute of

conviction.

The district court’s conclusion that Paul “intended to

traffic” in child pornography is supported by the evidence.

Initially, we agree with the district court’s determination that

Paul’s offer to send three child pornography books to Anderson in

exchange for the cost of postage was sufficient to demonstrate

his “intent to traffic” in child pornography. The term

“traffic,” while not defined in the Sentencing Guidelines,

traditionally encompasses both buying and selling commodities for

money and exchanging commodities by barter. See United States v.

Horn, 187 F.3d 781, 791 (8th Cir. 1999) (citing May v. Sloan, 101

U.S. 231, 237 (1879)); see also BLACK’S LAW DICTIONARY 1495 (6th ed.

1990) (defining “traffic” as “commerce; trade; sale or exchange

of merchandise, bills, money, and the like . . .”). While Paul

characterizes the proposed transaction with Anderson as a “gift,”

we defer to the district court’s implicit determination that the

proposed transaction was sufficiently akin to a sale or exchange

of merchandise to constitute proposed “trafficking.”

Moreover, even if the transaction involving the books was

not sufficient to indicate Paul’s intent to traffic, the record

reveals that Paul engaged in actual trafficking as well. Paul’s

14 computer contained hundreds of images of child pornography

obtained from the Internet.9 In addition, Paul’s e-mail

exchanges with both Anderson and Ghost Writer indicate that, at

some point in time, he posted material to child pornography

newsgroups as well. As the Second Circuit explained in United

States v. Johnson, because exchange or barter is a form of

trafficking, sending and receiving pornographic images via the

Internet constitutes “trafficking” sufficient to invoke the

cross-reference in section 2G2.4. See 221 F.3d 83, 98 (2d. Cir.

2000) (finding that “trafficking” occurred when the defendant

exchanged child pornography with others by sending and receiving

images over the Internet).

While Paul may or may not have intended to barter particular

images with specific persons when he posted and downloaded

images, his participation in the free exchange of images that is

characteristic of online child pornography communities

nonetheless constitutes trafficking. The consequences of this

type of Internet trafficking are the same as (if not worse than)

the consequences of a more direct, person-to-person barter or

exchange, and application of the 2G2.4 cross-reference is equally

justified. As the Johnson court explained, “the guidelines

expressly contemplate more severe punishment by application of

9 At the time that Paul pled guilty to the instant offense, he conceded that he obtained the images introduced by the government from the Internet.

15 Section 2G2.2 if the conduct involved something more than ‘simple

possession.’” Id. Sending and receiving images of child

pornography over the Internet justifies this harsher punishment

because “such dissemination of child pornography is likely to

expand the market for it and thus to cause more harm than mere

possession.” Id. Because we agree with the Second Circuit that

sending and receiving images over the Internet constitutes

“trafficking,” we find that the district court had adequate

circumstantial evidence to support its conclusion that Paul more

likely than not trafficked in (or intended to traffic in) child

pornography.

The second assumption underlying the district court’s

application of the 2G2.4 cross-reference is that the particular

images that Paul trafficked or intended to traffic involved

sexual exploitation of a minor. Paul is correct that the

government bears the burden of demonstrating that section 2G2.4's

cross-reference to section 2G2.2 is applicable. However, the

government must prove the factors underlying a sentencing

determination only by a preponderance of the evidence. See

United States v. Gaytan, 74 F.3d 545, 558 (5th Cir. 1996) (“It is

well-established that the preponderance standard is the

applicable standard for sentencing purposes.”); see also United

States v. Pewenofkit, 173 F.3d 865 (10th Cir. 1999) (unpublished

table decision), available at 1999 WL 169429 (applying a

16 preponderance of the evidence standard when determining the

applicability of a cross-reference provision). Given the

deferential standard of review, there is adequate circumstantial

evidence to support the district court’s determination that the

government proved by a preponderance of the evidence that the

images contained child pornography.

While the FBI did not find the books that Paul offered to

Anderson in the search of Paul’s house, the titles of the books

(“Boys Will Be Boys,” “Young Aphrodites,” and “Children of Many

Lands”) suggest that they contained child pornography. Moreover,

Paul described these books in his e-mail to Anderson as out-of-

print “BL” (or “boy lover”) books. Finally, the images that were

found in the search of Paul’s residence – including images of

children’s genitals, images of children engaged in sexual

intercourse, and sadistic images of infants – provide

circumstantial evidence that the books that Paul wanted to give

Anderson contained images of a similar nature.

In addition, while the e-mail exchange between Paul and

Anderson addressing Paul’s posting activities on the asparagus

newsgroup does not contain an explicit acknowledgment that Paul

had posted images, the government presented testimony at the

sentencing determination indicating that “alt.binary.pictures”

newsgroups are generally used for posting pictures. Moreover, in

Anderson’s e-mail warning Paul that the asparagus newsgroup was

17 an illegal newsgroup, he informed Paul that it was “safer” just

to watch or download pictures rather than to “get involved by

posting” and suggested that if Paul wanted to post, he should

post “innocent” pictures at another newsgroup called

alt.binaries.pictures.boys. This language also provides evidence

that the posting referred to in this e-mail exchange contained

child pornography.

While Paul is correct that the district court cannot make

sentencing determinations based on pure speculation, there is

sufficient circumstantial evidence here to support the district

court’s determination that the images in question more likely

than not contained child pornography. Accordingly, we find that

the district court acted appropriately in applying the cross-

reference contained in section 2G2.4. We affirm the portion of

the district court’s sentence prescribing Paul’s term of

imprisonment.

IV. The Special Conditions of Supervised Release

A district court has wide discretion in imposing terms and

conditions of supervised release. However, this discretion is

limited by 18 U.S.C. § 3583(d), which provides that a court may

impose special conditions of supervised release only when the

conditions meet certain criteria.10 First, special conditions

10 These statutory criteria have also been incorporated into the Sentencing Guidelines. See U.S. SENTENCING GUIDELINES MANUAL § 5D1.3(b) (1998).

18 of supervised release must be reasonably related to the factors

set forth in § 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D).

See 18 U.S.C. § 3583(d) (1994). These factors include: (1) “the

nature and circumstances of the offense and the history and

characteristics of the defendant,” (2) the need “to afford

adequate deterrence to criminal conduct,” (3) the need “to

protect the public from further crimes of the defendant,” and (4)

the need “to provide the defendant with needed [training],

medical care, or other correctional treatment in the most

effective manner.”11 18 U.S.C. § 3553(a)(1)-(2) (1994). In

addition, supervised release conditions cannot involve a greater

deprivation of liberty than is reasonably necessary to achieve

the latter three statutory goals. See 18 U.S.C. § 3583(d)

(1994). We review the district court’s determination of

supervised release conditions for abuse of discretion. United

States v. Coenen, 135 F.3d 938, 940 (5th Cir. 1998).

A. The Restrictions on Contact with Minors

Paul challenges the special conditions requiring him to

avoid “direct and indirect contact with minors,” prohibiting him

from “engaging in any paid occupation or volunteer service which

exposes him either directly or indirectly to minors,” and

instructing him to “avoid places, establishments, and areas

11 This criterion is not relevant in the instant case, as Paul does not challenge the condition requiring him to “participate in a sex offender/mental health program as deemed necessary and approved by the probation officer.”

19 frequented by minors.” He argues that these restrictions are

impermissibly vague and do not provide him with fair notice of

the prohibited conduct.

Paul also contends that these associational restrictions are

overly broad.12 He argues that the prohibition on “indirect”

contact with minors limits him from visiting “a restaurant [or]

any retail establishment such as a grocery store or a department

store” due to the possibility that he might indirectly come into

contact with minors. Paul similarly points out that he could

inadvertently violate the terms of his supervised release through

chance encounters. While he concedes that courts generally

interpret associational restrictions to exclude incidental

contact, Paul argues that the provision prohibiting “indirect”

contact with minors encompasses such incidental or chance

encounters.

A number of our sister circuits have upheld restrictions on

contact with minors similar to those at issue in the instant

case. See, e.g., United States v. Loy, 237 F.3d 251, 267-69 (3d

Cir. 2001) (upholding a condition barring the offender from all

“unsupervised contact with minors”); United States v. Bee, 162

F.3d 1232, 1235-36 (9th Cir. 1998) (upholding a condition that

12 We interpret this “overbreadth” claim to argue that the supervised release condition violates the second statutory criterion outlined above (i.e., the requirement that supervised release conditions must involve no greater deprivation of liberty than is reasonably necessary in light of the need to protect the public and prevent recidivism).

20 the offender “not have contact with children under the age of 18

unless approved by [his] probation officer” and that he “not

loiter within 100 feet of school yards, parks, playgrounds,

arcades, or other places primarily used by children under the age

of 18"). But see United States v. Peterson, 248 F.3d 79, 86 (2d

Cir. 2001) (finding that a restriction prohibiting the offender

from “being on any school grounds, child care center, playground,

park, recreational facility, or in any area in which children are

likely to congregate” was ambiguous and remanding to the

sentencing court for clarification). The primary differences

between the language of the provisions governing Paul’s release

and the language of the provisions at issue in Bee and Peterson

are the prohibition on “indirect” contact with minors (i.e., the

basis of Paul’s “overbreadth” claim) and the failure to specify

particular locations where Paul is prohibited from going (i.e.,

the basis of Paul’s vagueness claim).

We first address Paul’s overbreadth claim. Contrary to

Paul’s assertion, the prohibition on “indirect” contact with

minors does not encompass chance or incidental encounters with

children. As the Third Circuit noted in Loy, “[a]t this point,

it is well established that associational conditions do not

extend to casual or chance meetings.” 237 F.3d at 269 (citing

Arciniega v. Freeman, 404 U.S. 4, 4 (1971) (per curiam)). To the

extent that the prohibition on “indirect” contact in the instant

21 case might be interpreted to encompass such casual encounters,

this court is well within its authority to interpret the

restriction to exclude such casual or incidental encounters. See

id. (interpreting the restriction at issue to exclude chance

encounters). So construed, the inclusion of the word “indirect”

in Paul’s supervisory restrictions does not render these

restrictions unduly broad.

A more difficult question is presented by Paul’s vagueness

challenge to the supervised release condition instructing him to

avoid “places, establishments, and areas frequented by minors.”

Restrictions on an offender’s ability to interact with particular

groups of people, to hold certain types of employment, and to

frequent certain places must provide “fair notice” of the

prohibited conduct. See Loy, 237 F.3d at 262 (noting that the

same principles of due process and notice that apply to criminal

statutes apply to supervised release conditions).

In Peterson, the Second Circuit analyzed a supervised

release condition that is somewhat similar to Paul’s. In that

case, the court held that a restriction prohibiting the offender

from being “on any school grounds, child care center, playground,

park, recreational facility, or in any area in which children are

likely to congregate” was impermissibly vague. However, it is

important to note that the court in Peterson did not find that

the phrase “in any area in which children are likely to

22 congregate” was vague. Rather, the Second Circuit remanded the

case to the sentencing court because the court found that it was

unclear from the language of the restriction whether the general

clause modified the preceding list of specific locations.

Peterson, 248 F.3d at 86. The court determined that if the

phrase “in any area in which children are likely to congregate”

did not modify the previous list, then the prohibition would not

be reasonably related to the defendant’s offense, as the

restriction would prohibit the defendant from visiting parks or

recreational facilities not frequented by children. See id.

Paul’s supervised release condition is not ambiguous in the

manner of the provision at issue in Peterson. It is clear from

the plain language of Paul’s restriction that he is permitted to

visit places, establishments, or areas that are not frequented by

minors. The only potential vagueness problem with the

restriction at issue in the instant case is whether a reasonable

person can predict which specific locations Paul is permitted to

frequent.

This lack of specificity is not necessarily fatal to the

validity of the restriction. As the First Circuit noted in

United States v. Gallo, while a probationer “is entitled to

notice of what behavior will result in a violation, so that he

may guide his actions accordingly . . . [c]onditions of probation

do not have to be cast in letters six feet high, or to describe

every possible permutation, or to spell out every last,

23 self-evident detail.” 20 F.3d 7, 12 (1st Cir. 1993). Conditions

of probation “may afford fair warning even if they are not

precise to the point of pedantry. In short, conditions of

probation can be written — and must be read — in a commonsense

way.” Id.

Certainly, it would be impossible to list within the text of

Paul’s condition every specific location that he is prohibited

from frequenting during the term of his release. Sentencing

courts must inevitably use categorical terms to frame the

contours of supervised release conditions. Such categorical

terms can provide adequate notice of prohibited conduct when

there is a commonsense understanding of what activities the

categories encompass. Indeed, it is well established that the

requirement of reasonable certainty “does not preclude the use of

ordinary terms to express ideas which find adequate

interpretation in common usage and understanding.” Birzon v.

King, 469 F.2d 1241, 1243 (2d Cir. 1972) (quoting Sproles v.

Binford, 286 U.S. 374, 393 (1932)). We find that there is

sufficient common understanding of the types of locations that

constitute “places, establishments, and areas frequented by

minors” to satisfy the constitutional requirement of reasonable

certainty in this case.13

13 A number of other courts have reached the same conclusion in evaluating conditions of probation or supervised release that are materially similar to Paul’s restrictions. See, e.g., State v. Riles, 957 P.2d 655, 666 (Wash. 1998) (finding

24 The supervised release conditions restricting Paul’s contact

with minors are neither impermissibly vague nor unreasonably

broad. These restrictions are reasonably necessary in light of

the nature and circumstances of Paul’s offense and the legitimate

need to prevent recidivism and protect the public. The district

court thus did not abuse its discretion in imposing these

restrictions.

B. The Restrictions on Access to Computers and the Internet

Paul argues that the condition of his supervised release

prohibiting him from having, possessing, or having access to

“computers, the Internet, photographic equipment, audio/video

equipment, or any item capable of producing a visual image” is

that a restriction instructing the defendant to “avoid places where minors congregate” and not to “frequent places where minors are known to congregate” was not impermissibly vague); cf. Britt v. State, 775 So.2d 415, 416-17 (Fla. Dist. Ct. App. 2001) (finding that a restriction prohibiting the defendant from doing “volunteer work, employment, or community activity at any school, daycare center, park, playground, or other place where children regularly congregate” and prohibiting the defendant from “living within 1,000 feet of a school, daycare center, park, playground, or other place where children regularly congregate” was not impermissibly vague) (emphasis added); State v. Simonetto, 606 N.W.2d 275, 276-77 (Wis. Ct. App. 1999) (finding that a restriction instructing the defendant “not to go where children may congregate” was not impermissibly vague when regulatory guidance indicated that this restriction included, but was not limited to, schools, day care centers, playgrounds, parks, beaches, pools, shopping malls, theaters, or festivals). But see Carswell v. State, 721 N.E.2d 1255, 1260 (Ind. Ct. App. 1999) (concluding that a condition prohibiting the defendant from residing within two blocks of “any area where children congregate” was impermissibly vague).

25 unreasonably broad.14 We will address the restriction on Paul’s

access to computers and the Internet in this section. We will

discuss the ban on access to photographic equipment and

audio/video equipment in the following section.

Paul contends that a blanket prohibition on computer or

Internet use is excessively broad and cannot be justified based

solely on the fact that his offense involved a computer and the

Internet. He points out that computers and Internet access have

become indispensable communication tools in the modern world and

that the restriction imposed by the district court would prohibit

him from accessing computers and the Internet for legitimate

purposes, such as word processing and research.

The government responds that the order prohibiting Paul from

using a computer or the Internet is rationally related to his

offense and that such an order is an appropriate public

protection measure. The government points out that Paul’s

computer contained over 1200 images of child pornography and

contained evidence that Paul had used the Internet to access

child pornography chat rooms, bulletin boards, and newsgroups.

According to the government, Paul also used his e-mail to advise

fellow consumers of child pornography how to “scout” single,

14 Again, we interpret this “overbreadth” claim to argue that the supervised release condition is inappropriate under 18 U.S.C. § 3583(d) because it involves greater deprivation of liberty than is reasonably necessary in light of the need to protect the public and prevent recidivism.

26 dysfunctional parents and gain access to their children and to

solicit the participation of like-minded individuals in trips to

“visit” children in Mexico. Under these circumstances, the

government argues, restricting Paul’s access to computers and the

Internet is reasonably tailored to his offense and conviction and

“serves the dual purpose of deterrence and public protection.”

The government correctly points out that a number of courts

have upheld Internet and computer-use prohibitions as conditions

of supervised release. See, e.g., United States v. Crandon, 173

F.3d 122, 127-28 (3d Cir. 1999) (upholding an Internet

restriction as a condition of supervised release for a child

pornography offender); United States v. Mitnick, 145 F.3d 1342

(unpublished table decision), available at 1998 WL 255343 (9th

Cir. 1998) (determining that the district court did not abuse its

discretion in prohibiting a defendant convicted of offenses

related to computer “hacking” from accessing “computers,

computer-related equipment, and certain telecommunications

devices” during his probationary period without prior approval of

his probation officer).15

15 While at least one circuit has rejected a probationary prohibition on computer and Internet usage, the facts at issue in that case were substantially dissimilar to the instant case. See Peterson, 248 F.3d at 81-83 (rejecting a probationary condition dictating that the defendant “shall not possess, purchase, or use a computer or computer equipment . . . except for employment purposes”). In Peterson, the defendant had been convicted of bank larceny, but a number of his conditions of supervised release, including the computer and Internet restrictions, were actually related to his prior conviction for a sex offense rather

27 Most factually analogous to the instant case is Crandon,

wherein a defendant convicted of receiving child pornography

challenged the district court’s imposition of a supervised

release condition dictating that he could not “possess, procure,

purchase, or otherwise obtain access to any form of computer

network, bulletin board, Internet or exchange format involving

computers unless specifically approved by the U.S. Probation

Office.” 173 F.3d at 125. The district court found that this

restriction on the defendant’s Internet access was “reasonably

related to [his] . . . criminal activities, to the goal of

deterring him from engaging in further criminal conduct, and to

protecting the public,” in light of the fact that the defendant

had once used the Internet as a means to develop an illegal

sexual relationship with a young girl. Id. at 127. The court

was unpersuaded by the defendant’s argument that the Internet

prohibition was overly broad and would unnecessarily restrict his

career opportunities and his freedoms of speech and expression.

Noting that supervised release conditions restricting employment

and First Amendment freedoms are permissible if the statutory

tailoring requirements are satisfied, the court ultimately

concluded that the restriction on the defendant was not overly

than to the bank larceny conviction at issue in that case. The Peterson court accordingly determined that such restrictions were neither reasonably related to the defendant’s conviction nor reasonably necessary to the statutory sentencing objectives. See id.

28 broad despite its effects on his business opportunities and

expressive activities.

As in Crandon, the supervised release condition at issue in

the instant case is reasonably related to Paul’s offense and to

the need to prevent recidivism and protect the public. The

record reveals that Paul has in the past used the Internet to

encourage exploitation of children by seeking out fellow “boy

lovers” and providing them with advice on how to find and obtain

access to “young friends.” Restricting his access to this

communication medium clearly serves the dual statutory goals of

protecting the public and preventing future criminal activity.

While the condition at issue in the instant case is broader than

the restriction at issue in Crandon because it prohibits access

to both computers and the Internet and it contains no proviso

permitting Paul to use these resources with the approval of his

probation office, we cannot say that that the district court

abused its discretion in determining that an absolute ban on

computer and Internet use was reasonably necessary to protect the

public and to prevent recidivism.

In arguing that the district court’s computer and Internet

prohibition was an abuse of discretion, Paul points to the Tenth

Circuit’s decision in United States v. White, 244 F.3d 1199 (10th

Cir. 2001). In White, the court of appeals remanded to the

sentencing court a special condition of supervised release that

29 was substantially similar to Paul’s condition.16 While the Tenth

Circuit was unclear about the scope of the restriction at issue

in that case, it indicated that if the condition were read to

absolutely ban all Internet and computer use, it would be

“greater than necessary” to serve the goals of supervised release

outlined in 18 U.S.C. § 3583(d). Id. at 1206. The Tenth Circuit

reasoned that Crandon did not dictate a different result. While

acknowledging that the Third Circuit did uphold an Internet

restriction in Crandon, the White court noted that the Crandon

court did not impose an absolute ban on computer or Internet

access, despite the fact that the defendant in Crandon (unlike

the defendant in White) had clearly used the Internet to

“initiate and facilitate a pattern of criminal conduct and

victimization that produced an immediate consequence and directly

injured the victim” in that case. Id. at 1205.

We find the Tenth Circuit’s reasoning in White unpersuasive.

Initially, we note that there is some evidence that Paul did in

fact use the Internet to “initiate and facilitate a pattern of

criminal conduct and victimization,” and thus that White can be

distinguished on these grounds. More importantly, we reject the

White court’s implication that an absolute prohibition on

16 The supervised release condition at issue in White dictated that the defendant (who was convicted of receiving child pornography) “shall not possess a computer with Internet access throughout his period of supervised release.” White, 244 F.3d at 1201.

30 accessing computers or the Internet is per se an unacceptable

condition of supervised release, simply because such a

prohibition might prevent a defendant from using a computer at

the library to “get a weather forecast” or to “read a newspaper

online” during the supervised release term. Id. We find that

such a supervised release condition can be acceptable if it is

reasonably necessary to serve the statutory goals outlined in 18

U.S.C. § 3583(d). In the instant case, the district court had

strong evidentiary support for its determination that a strict

ban on computer and Internet use was reasonably necessary.

Moreover, Paul has articulated no specific objections to the

computer and Internet ban suggesting how his occupational affairs

or his expressive activities will be adversely impacted by the

fact that he will be unable to “use a computer or the Internet at

a library, cybercafe or . . . an airport” during the term of his

supervised release.17 We conclude that the district court did

not abuse its discretion in imposing this condition of supervised

C. The Restrictions on “photographic equipment, audio/video equipment, or any item capable of producing a visual image”

Paul also challenges the restrictions on his ability to use

photographic equipment and audio/video equipment. He argues that

this prohibition is not reasonably related to his offense because

17 The record reveals that Paul has primarily been employed in recent years as a truck driver.

31 there is no indication that he used cameras to further the crime

for which he was convicted. He also maintains that this

restriction, like the computer restriction, is unreasonably broad

because it involves a greater deprivation of liberty than is

reasonably necessary to achieve the legitimate goals of his

supervised release. The government responds that this

restriction is necessary to serve public safety goals and to

deter Paul from committing future criminal conduct.

We reject Paul’s contention that this condition should be

vacated because it is not reasonably related to his offense. As

detailed above, special conditions of supervised release are

evaluated to determine if they are reasonably related to four

different factors: (1) “the nature and circumstance of the

offense and the history and characteristics of the defendant,”

(2) the need “to afford adequate deterrence to criminal conduct,”

(3) the need “to protect the public from further crimes of the

defendant,” and (4) the need “to provide the defendant with

needed [training], medical care, or other correctional treatment

in the most effective manner.” 18 U.S.C. § 3553(a)(1)-(2)

(1994). Paul appears to be arguing that the ban on photographic

equipment and audio/video equipment is invalid because it is not

reasonably related to the first of these criteria, but he

evaluates the condition only with respect to the conduct

underlying his offense, neglecting to consider whether the

condition is reasonably related to his “history and

32 characteristics.”

Information in the record about Paul’s history and

characteristics supports the district court’s determination that

it was both reasonable and necessary to prohibit Paul from

accessing photographic equipment and audio/video equipment during

his term of supervised release. The search of Paul’s apartment

revealed photographs of naked children, including some children

that were identified as being local neighborhood children.

Moreover, the materials found in Paul’s apartment advertising his

“medical” examinations and lice removal services provide further

evidence that he likely engaged in production (not mere

possession) of child pornography in the past. In light of this

information, a supervised release condition limiting Paul’s

ability to create images of children is unquestionably “related

to” his history and characteristics.

The district court sufficiently demonstrated why this

prohibition is also reasonably related to a legitimate need to

protect the public and prevent recidivism. As the district judge

noted at the sentencing hearing, “to the extent that . . . I’m

concerned about exploitation of children, especially if they are

children who are being approached under the auspices of medical

care, I’m concerned about having any kind of photographic

equipment that would allow you to exploit that situation.” The

restriction on Paul’s ability to access photographic and audio-

video equipment is thus based on the district court’s valid

33 concern that Paul could use such equipment to exploit children in

the future, and the condition is reasonably related to those

concerns.

Paul contends that even if this condition is related to the

appropriate statutory factors, it is broader than necessary to

serve these goals. While the district court made no explicit

finding in support of its implicit determination that this

condition was necessary to promote public safety and to prevent

Paul from repeating his crimes, there is ample evidence in the

record supporting this determination. Moreover, the only

specific objection to this condition that Paul raises is that the

prohibition will prevent him from pursuing his interests in

photography and repairing cameras. As these interests are mere

hobbies, the detrimental impact of this restriction appears

slight.18 We cannot say that the district court abused its

18 If these interests were Paul’s primary means of supporting himself, a supervised release condition restricting his ability to engage in these occupations would be subject to a somewhat higher standard of scrutiny under the Sentencing Guidelines. An occupational restriction is valid only if “a reasonably direct relationship exist[s] between the defendant’s occupation . . . and the conduct relevant to the offense of conviction; and . . . imposition of such a restriction is reasonably necessary to protect the public because there is reason to believe that, absent such restriction, the defendant will continue to engage in unlawful conduct similar to that for which the defendant was convicted.” U.S. SENTENCING GUIDELINES MANUAL § 5F1.5 (1998). Such restrictions should be imposed only “for the minimum time and to the minimum extent necessary to protect the public.” Id. Despite this higher standard, conditions of supervised release imposing occupational restrictions are routinely upheld. See United States v. Goodman, 232 F.3d 902 (10th Cir. 2000) (unpublished table decision), available at 2000

34 discretion in determining that the condition of supervised

release restricting Paul’s access to photographic and audio/video

equipment was necessary to protect the public and to prevent Paul

from committing future criminal conduct. Thus, we affirm this

condition of supervised release.

4. The Sex Offender Registration Requirement

Finally, Paul argues that the district court erred in not

affording him pre-sentence notice before imposing the sex

offender registration requirement as one of the conditions of his

supervised release. Paul maintains that under this court’s

decision in Coenen, 135 F.3d at 943, a defendant is entitled to

pre-sentencing notice that the court is considering requiring sex

offender registration as a condition of supervised release. Paul

did not raise this objection at the sentencing proceeding, and

WL 1616452 (upholding a condition prohibiting the defendant from self-employment or employment as a telemarketer when the defendant’s offense arose from a telemarketing scheme); United States v. Choate, 101 F.3d 562 (8th Cir. 1996) (upholding a condition prohibiting the defendant from self-employment because the restriction was reasonably related to the defendant’s wire fraud offenses); Malone v. United States, 502 F.2d 554 (9th Cir. 1974) (upholding a condition prohibiting the defendant from accepting employment that directly or indirectly associated him with any Irish organization or movement because the condition was reasonably related to his conviction for exporting guns to the Irish Republic Army). In the instant case, while Paul has at times sold the cameras that he repairs for extra money, it is clear from the record that photography and camera repair are merely his hobbies and that neither interest rises to the level of an occupation. Under such circumstances, restrictions on Paul’s ability to pursue these recreational interests are unquestionably valid if they comply with the less strict statutory standards of 18 U.S.C. § 3583(d).

35 thus plain error review is appropriate. See United States v.

Lopez, 923 F.2d 47, 49 (5th Cir. 1991).

The government argues that pre-sentence notice was provided

because the registration condition was set out in the probation

officer’s sentencing recommendation attached to the PSR. The

record supports this assertion. Moreover, the government

correctly points out that even if this information had not been

attached to the PSR, Paul nevertheless would have had notice of

this condition. The Sentencing Guidelines state that such a

provision is a mandatory condition of supervised release under 18

U.S.C. § 3583(a) for anyone convicted of a sexual offense. See

U.S. SENTENCING GUIDELINES MANUAL § 5D1.3 n.1 (1998). Coenen is

distinguishable on this basis. Coenen was decided prior to the

effective date of the amendment to 18 U.S.C. § 3583 making this

condition mandatory.19 The registration requirements at issue in

Coenen were imposed pursuant to a “catch all” provision in the

Sentencing Guidelines that did not necessarily provide the

defendant with notice of the specific registration requirements

that the sentencing court imposed. Coenen, 135 F.3d at 943. In

19 While Paul maintains that he was sentenced under the 1998 Sentencing Guidelines Manual, which does not contain such a mandatory provision, the government correctly points out that the footnote to § 5D1.3 in the 1998 Guidelines Manual explicitly mentions a recent statutory change to 18 U.S.C. § 3583 requiring registration for persons convicted of sexual offenses as a mandatory condition of supervised release and notes that the change becomes effective one year after November 26, 1997. See U.S. SENTENCING GUIDELINES MANUAL § 5D1.3 n.1 (1998).

36 the instant case, the language in the Sentencing Guidelines

indicating that registration is a mandatory condition of

supervised release for sex offenders provided adequate notice of

the particular conditions that were ultimately imposed.

In light of these considerations, it is apparent that the

district court did not plainly err in imposing the sex offender

registration requirement at the sentencing proceeding. We

affirm this special condition of supervised release.

III. Conclusion

For the foregoing reasons, we AFFIRM Paul’s conviction and

his sentencing determination, including the conditions of his

supervised release.