U.S. v. York

Decision Date27 January 2004
Docket NumberNo. 02-2210.,02-2210.
Citation357 F.3d 14
PartiesUNITED STATES of America, Appellee, v. Lennell YORK, Jr., Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

Catherine K. Byrne, with whom the Federal Defender Office was on brief, for appellant.

John M. Hodgens, Jr., Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, and Virginia M. Vander Jagt, Assistant United States Attorney, were on brief, for appellee.

Before SELYA, Circuit Judge, CYR, Senior Circuit Judge, and LYNCH, Circuit Judge.

LYNCH, Circuit Judge.

Lennell York, Jr. pled guilty to mailing a threatening letter to his estranged common-law spouse in violation of 18 U.S.C. § 876. In September 2002, York was sentenced to 41 months in prison, to be followed by three years of supervised release. As part of his supervised release, the district court required York to participate in a sex offender treatment program and to submit to periodic polygraph testing as a means to ensure his participation in that program.

On appeal, York attacks these two conditions, neither of which will take effect until he begins his supervised release program upon his release from prison in early 2006. We construe an ambiguous provision in the supervised release order to minimize the risk to York of coercive self-incrimination in violation of his Fifth Amendment rights, and we affirm the judgment as construed.

I.

Though this is solely a sentencing appeal, the facts of York's underlying offense and criminal history are pertinent to the district court's choice of supervised release conditions. This is so by statute. Under 18 U.S.C. § 3583(d), the district court may impose any special condition of supervised release that it considers "appropriate," provided that the condition satisfies certain specified criteria. One such criterion is that the condition imposed be "reasonably related to the factors set forth in section 3553(a)(1)." Id. § 3583(d)(1). Section 3553(a)(1), in turn, requires the court to consider "the nature and circumstances of the offense and the history and characteristics of the defendant." See also U.S.S.G. § 5D1.3(b). In this case, the facts are drawn from the pre-sentence report, as amended to reflect York's minor objections, and from the transcript of the sentencing hearing. See United States v. Lopez, 299 F.3d 84, 86 (1st Cir.2002).

In July 2000, York was an inmate in a Massachusetts house of corrections, where he was serving a sentence for a 1999 conviction for sexually assaulting a girl under the age of fourteen. On July 2, York mailed a letter to A.S., his estranged common-law wife and a relative of the girl whom he had assaulted. In the letter, York wrote: "I can not and will not let you live. I make this statement knowing full well what the consequences are.... You will be dead, and I will be in jail. You may take this as an idle threat if you choose to, but I will find and exterminate you. You will cease to exist." He signed the letter "L. York."

A.S. reported the letter to the authorities, and on July 13, the FBI visited York in jail. He agreed to be interviewed, signed a waiver of his Miranda rights, and admitted that he had sent the letter. His lawyer later explained that York decided to write the letter when he learned that A.S. was planning to move away and take their children with her.1

A federal criminal complaint was filed against York in the District of Massachusetts in February 2002, and York was ordered detained pending indictment and trial. In April 2002, the government formally charged York with violating 18 U.S.C. § 876, which makes it a crime to send via the U.S. Postal Service any "communication... addressed to any other person and containing ... any threat to injure the person of the addressee." § 876(c). On May 13, 2002, York pled guilty to the charge.

At the sentencing hearing in September 2002, the district court determined, and the parties agreed, that York's criminal history qualified him as a "career offender" under U.S.S.G. § 4B1.1. Among York's prior offenses were two convictions in Massachusetts state court for indecent assaults upon minors. In the first incident, which occurred in 1993, York bought alcohol for a minor girl who was over the age of fourteen and then subjected her to an indecent assault and battery. The second incident, which occurred in 1999, was York's sexual assault on the girl related to A.S.

In light of York's criminal history and the dictates of the career offender guideline, the district court determined that the applicable guidelines range was 37 to 46 months. York sought a downward departure on the basis of diminished capacity, see U.S.S.G. § 5K2.13, which the court denied on the ground that § 5K2.13 does not permit departures where the defendant's conduct involved "a serious threat of violence." Id. The court then added:

I also agree with the government that... this particular defendant's criminal history indicates a need to incarcerate him to protect the public. He has shown himself capable of committing, not one, but two very dastardly and heinous sexual crimes against defenseless young women....

The court warned York that he would spend the rest of his life in prison if he were ever arrested again for committing a violent crime, "particularly a crime against people who are defenseless." York was sentenced to 41 months in prison plus a three-year term of supervised release.

In addition to the standard conditions of supervised release, see U.S.S.G. § 5D1.3(c), the court imposed on York several special conditions:

The defendant is to participate in a sex offender specific treatment program at the direction of the Probation Office. The defendant shall be required to submit to periodic polygraph testing as a means to insure that he is in compliance with the requirements of his therapeutic program. No violation proceedings will arise based solely on a defendant's failure to "pass" the polygraph. Such an event could, however, generate a separate investigation. When submitting to a polygraph exam, the defendant does not give up his Fifth Amendment rights.2

The government had not asked the court to impose these conditions on York, nor had the Probation Office recommended them in York's pre-sentence report (PSR).3 Defense counsel, however, did not object when the court listed them among the conditions it was imposing.

Several months after the sentencing hearing, York filed a motion to modify the sex offender treatment and polygraph testing conditions. The district court denied the motion because York had already filed a notice of appeal to this court raising the same issues. York's motion to reconsider that denial was denied on the same ground. Cf. United States v. Distasio, 820 F.2d 20, 23 (1st Cir.1987) (pending notice of appeal deprives the district court of jurisdiction over the substance of the appeal).4

II.

York attacks the conditions of his supervised release on multiple grounds. He argues (1) that the district court could not require him to attend a sex offender treatment program as a condition of supervised release because his § 876 conviction did not involve a sex-related offense; and (2) that the mandatory polygraph testing condition is invalid because (i) it will compel him to incriminate himself in violation of his Fifth Amendment rights; (ii) it constitutes an impermissible delegation of the judicial function to non-judicial officers; and (iii) it is an inherently unreliable and thus unreasonable means of ensuring compliance with supervised release conditions. We address each of these contentions in turn, saving for last the more troublesome issues raised by York's Fifth Amendment challenge.

A. Standard of Review

The parties disagree on the applicable standard of review. This court ordinarily reviews challenges to conditions of supervised release for abuse of discretion, but if the issue is forfeited, review is for plain error only. United States v. Mansur-Ramos, 348 F.3d 29, 32 (1st Cir.2003). The government argues that York forfeited his objections to the conditions of his supervised release by failing to raise them during the sentencing hearing. We have accepted this argument elsewhere. See, e.g., id.; United States v. Brown, 235 F.3d 2, 3-4 (1st Cir.2000).

York acknowledges that he failed to object below. Nevertheless, he argues that a contemporaneous objection was not required because, given that the conduct for which he was convicted was unrelated to sex, and given that neither the government nor the PSR proposed sex offender treatment or polygraph testing, he could not reasonably have anticipated the special conditions imposed by the court. We are doubtful. Considering York's history of sexual offenses and violence against women, it should not have been difficult to predict the court's interest in such conditions.

In any event, we need not decide which of these arguments should prevail, for our conclusion in York's case is the same under either standard of review. But there is a serious consequence to the belatedness of York's attack. As the government correctly points out, there is no factual record developed as to the specific sex offender treatment program that York will be required to attend, the types of polygraph exams that may be administered, or even the questions that York will likely be required to answer. While the relevant treatment programs or polygraph technology may be somewhat different in 2006, information as to existing programs and polygraph exams is surely available and would have been helpful. A timely objection and the creation of a record would have permitted both the district court and this court to review York's claims with the benefit of that information.

B. Sex Offender Treatment Requirement

York argues that because his conviction was for mailing a threatening communication, not for a sex-related crime, the requirement that he...

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