US v. White, No. 00-2318

• Citation: 244 F.3d 1199
• Decision Date: 27 March 2001
• Docket Number: No. 00-2318
• Parties: (10th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ROBERT EMERSON WHITE, Defendant - Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1199

244 F.3d 1199 (10th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ROBERT EMERSON WHITE, Defendant - Appellant.

No. 00-2318

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

March 27, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO. (D.C. No. CR-97-293-JC)

[Copyrighted Material Omitted] Judith A. Rosenstein, Assistant Federal Public Defender (Scott M. Davidson, Research & Writing Specialist of New Mexico, with her on the briefs), Albuquerque, New Mexico, for Defendant - Appellant.

David N. Williams, Assistant United States Attorney (Norman C. Bay, United States Attorney, District of New Mexico, with him on the brief), Albuquerque, New Mexico, for Plaintiff - Appellee.

Before SEYMOUR, PORFILIO, and KELLY, Circuit Judges.

PORFILIO, Senior Circuit Judge.

After conviction of the offense of receiving child pornography and a second violation of a special condition of his supervised release, Robert Emerson White was sentenced to six months in the custody of the Bureau of Prisons followed by a two-year term of supervised release. Having served the custodial sentence, Mr. White now challenges three of the five special conditions imposed: prohibition of Internet access, physiological testing, and probationary searches, contending not one is reasonably related to protecting the public or achieving his rehabilitation, and all infringe his First, Fourth, and Fourteenth Amendment rights. Exercising our appellate jurisdiction, 28 U.S.C. 1291, we affirm the trial court's imposition of probationary searches but remand for the court's clarification of the scope of the denial of Internet access and the imposition of physiological testing.

I.

In 1996, Mr. White, using the e-mail address Lech23@AOL.COM, responded to an advertisement on the Internet for videos of young girls engaged in fondling and sexual intercourse with adult men. After Mr. White selected the mode of delivery and was assured the seller was not involved in a sting operation, he ordered three tapes. Despite his caution, United States Customs officers, who had placed the ad, made the controlled delivery, triggering his arrest and the execution of a search warrant which permitted the seizure of the tapes.

Subsequently, a federal grand jury charged Mr. White with receipt of child pornography in violation of 18 U.S.C. 2252(a)(2)(A), 2256(1)(2)(A), and 2256(1)(2)(E). After negotiations, Mr. White pled guilty to an information charging him with receipt of child pornography, attended by a twenty-four-month term of incarceration and three-years of supervised release. The week after completing his custodial sentence, Mr. White consumed alcohol in violation of a special condition of his supervised release. The court reimposed a three-year term of supervised release but added another special condition. Soon after, Mr. White was again discovered drinking alcohol, and the government filed a second petition to revoke his supervised release, the basis of this appeal.

In that sentencing hearing, the district court accepted Mr. White's admission he consumed alcohol and heard arguments on two of the objections raised here, Internet access and probationary searches. The court then sentenced Mr. White to six months in custody followed by two years of supervised release with five special conditions.¹ These are that Mr. White shall: (1) not consume alcohol; (2) participate in a mental health program for sex offenders, which may include physiological testing approved by the United States Probation Office (USPO); (3) shall not possess erotica, or any other sexually explicit material, and shall not possess a computer with Internet access throughout his period of supervised release; (4) submit to a search of his home, automobile, or person under direction of the USPO; and (5) not possess firearms, explosives, or other dangerous weapons.

Mr. White predicates his challenge to conditions 3, 4, and 5 solely on the facts underlying his present conviction of the single charge of receiving child pornography. In contrast, the government casts that conviction against a decade of conduct it believes demonstrates a history of sexual deviance. In 1986, it offers, Mr. White was convicted of vagrancy/annoying a child under eighteen in San Diego County, California, when he lifted an eight-year old's dress and attempted to remove her pants. As a condition of his parole, Mr. White had to register as a sex offender under California law. When he was later convicted of driving under the influence in 1992, he volunteered that he had been driving around asking where he could find young girls. The following year, Mr. White was convicted of possession of child pornography in Glendale, California, and as a condition of parole, was ordered not to have contact with children under fourteen years old. The government also apprized the sentencing court that while serving the first period of supervised release in this case, it received an affidavit sworn to by a woman who stated Mr. White invited her son to his room to use his computer. In each instance, the consumption of alcohol apparently was the catalyst for the aberrant behavior, it noted.

The government offers this extended history to provide context to the district court's exercise of discretion under 18 U.S.C. 3583(a) in imposing a term of supervised release and in balancing the factors mandated for consideration by 18 U.S.C. 3553(a). Nonetheless, it characterizes the three issues raised as hypothetical and speculative. Because, so far, no searches have occurred, physiological testing ordered, or Internet access denied, the government contends the issues are not ripe for our consideration. Mr. White counters the conditions of supervised release incorporated in a final judgment of sentence are presently in effect in violation of his First, Fourth, and Fourteenth Amendment rights.

II.

While the question of prudential ripeness frequently surfaces in civil cases, often those involving the interpretation of administrative rules, see, e.g., Utah v. United States Dep't of the Interior, 210 F.3d 1193 (10th Cir. 2000); Park Lake Res. Ltd. Liab. Co. v. United States Dep't of Agriculture, 197 F.3d 448 (10th Cir. 1999), rarely are criminal cases subject to clearing this hurdle. However, because a ripeness concern challenges our very power to resolve the case, we must be convinced the questions presented satisfy the several ramifications of our "case or controversy" jurisdiction. To do so, even in the context of a criminal case, we borrow from the analysis set forth in Abbott Laboratories v. Gardner, 387 U.S. 136 (1967), and the recent application of the rationale in a similar context. United States v. Loy, 237 F.3d 251 (3d Cir. 2001).

Broadly, Abbott Laboratories cautions against the courts "entangling themselves in abstract disagreements" until the effects of a final order are "felt in a concrete way by the challenging part[y]." 387 U.S. at 148-49. To assure a live "case or controversy," Abbott instructs courts to assess "both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Id. at 149. This directive guided the Third Circuit when it addressed the government's effort to forestall review of two special conditions of supervised release raised in Loy. There, the court characterized the issue squarely as a matter of prudential ripeness.² 237 F.3d at 257. Its analysis is appropriate here.

In Loy, defendant was convicted of receiving and possessing child pornography and, while serving his thirty-three month sentence, appealed the imposition of two special conditions of his supervised release. One condition prohibited him from possessing "all forms of pornography, including legal adult pornography," and the second from "unsupervised contact with minor children . . . [and] the requisite supervision must come from someone other than his wife." Id. at 253. Loy claimed the former was vague and overbroad, and the latter vague and unsupported by the record. The government countered the issues were not ripe for review; it had neither attempted to enforce either condition nor had there been a violation.

Applying Abbott's prudential directive to look first at the hardship to the parties in withholding court consideration and then at the fitness of the issues raised for judicial review, the Third Circuit agreed Loy established hardship given that he could only learn of the prohibition's reach when he faced a revocation proceeding.³ Second, it determined the issue raised was fit for judicial review, the breadth of the prohibition presenting a question of law for which prompt resolution would inform Loy's conduct. "The government's approach would have Loy discover the meaning of his supervised release condition only under continual threat of reimprisonment, in sequential hearings before the court. Such an exercise is not necessary nor will it clarify the issues." Id. at 258.

Further, the Third Circuit's analysis fulfilled Abbott's teaching to examine "congressional intent . . . [as] an important component of the prudential ripeness inquiry." Id. (citing 387 U.S. at 139-40). It ascertained the "legislative history of the Sentencing Reform Act of 1984 evidences Congress's intention that direct appellate review be the preferred method of reviewing a district court's sentence." Id. (supporting statements found in S. Rep. No. 98-225, at 151 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3334).

In the Third Circuit's view, the legislative history of the Guidelines certainly envisioned the role of appellate courts in the determination of the legality of sentences and any conditions of supervised release both at the time of their imposition and in an appeal from a revocation proceeding, the posture here. Id. In addition, such prompt review would promote judicial efficiency by eliminating the alternative of piecemeal appeals of parts of sentences. Id. at...