369 F.3d 173 (2nd Cir. 2004), 03-1221, United States v. Lifshitz

Docket Nº:03-1221.
Citation:369 F.3d 173
Party Name:UNITED STATES of America, Appellee, v. Brandon Michael LIFSHITZ, Defendant-Appellant.
Case Date:March 30, 2004
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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369 F.3d 173 (2nd Cir. 2004)

UNITED STATES of America, Appellee,


Brandon Michael LIFSHITZ, Defendant-Appellant.

No. 03-1221.

United States Court of Appeals, Second Circuit

March 30, 2004

Argued: Jan. 22, 2004.

Amended: May 10, 2004.

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[Copyrighted Material Omitted]

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Jennifer G. Rodgers, Assistant United States Attorney (Celeste L. Koeleveld, Assistant United States Attorney on the brief) for James B. Comey, United States Attorney for the Southern District of New York, New York, NY, for Appellee United States of America.

Steven M. Statsinger, The Legal Aid Society, Federal Defender Division, Appeals Bureau, New York, NY, for Defendant-Appellant Brandon Michael Lifshitz.

Before: CALABRESI, KATZMANN, and B.D. PARKER, Circuit Judges.

KATZMANN, Circuit Judge:

This case considers whether a computer monitoring condition imposed upon a probationer infringes upon his Fourth Amendment right to be free of unreasonable searches. The defendant appeals from a sentence imposed by the United States District Court for the Southern District of New York (Robert P. Patterson, District Judge). We hold that the "special needs" of the probation system may render a computer monitoring condition reasonable, but determine that the condition as it stands may be overbroad, and, therefore, remand to the district court for the imposition of a condition consistent with this opinion.


On February 8, 2001, agents from the Federal Bureau of Investigation ("FBI") paid a visit to the household of Brandon Michael Lifshitz, then thirty years old, and his mother, sister, and niece. They sought to investigate the source of certain transmissions of child pornography to and from accounts registered in the name of Jo-Ann Lifshitz, Brandon's mother. The Lifshitzes consented to a search of the computer in their home, and also submitted voluntarily to interviews by the FBI agents. During the course of these discussions, Brandon admitted that he had been downloading child pornography since the year 2000 and had also disseminated such pornographic images by posting them on a web site. Brandon's mother corroborated this account, indicating that she had observed him examining these materials on the computer and repeatedly requested that he delete them. The FBI agents' search uncovered empirical confirmation in the form of pornographic pictures of children.

Brandon Lifshitz was, as a result, indicted upon two counts for violation of 18 U.S.C. § 2252A(a)(2)(A). The first count alleged that he had "unlawfully, willingly, and knowingly received [on his computer] child pornography ... which had traveled in interstate commerce," and the second stated that he had also "unlawfully, willingly, and knowingly distributed child pornography ... in interstate commerce."

Subsequent investigation indicated that Lifshitz was gainfully self-employed in a car repossession business that he and a

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partner had started eight years before and had also worked successfully as a security guard. The history of his past relationships was not, however, reassuring. As a teenager, he had initiated an incestuous liaison with his sister, and he had, more recently, pursued a correspondence over the Internet with an 18-year-old woman in Michigan to whom he ultimately paid a visit.

On December 11, 2001, Lifshitz pled guilty to count one of the charges, that of receiving child pornography, in exchange for the government's agreement, pursuant to a plea bargain, to drop the remaining count. The calculations set forth in the plea agreement resulted in a stipulated Sentencing Guidelines range of between 27 and 33 months, as well as a potential fine of between $6,000 and $60,000. The defendant did, however, reserve the right to move for a downward departure because of diminished capacity under United States Sentencing Guideline § 5K2.13, which provides that "[a] sentence below the applicable guideline range may be warranted if (1) the defendant committed the offense while suffering from a significantly reduced mental capacity...."

Exercising this right, defense counsel submitted a letter on September 24, 2002, requesting that the court depart downward to a noncustodial sentence on the ground that Lifshitz's capacity was diminished at the time of the offense because he lacked the ability to control behavior that he knew was wrong. This communication relied principally upon reports generated by three different psychiatrists who evaluated Lifshitz's condition. One, prepared by Dr. Robert Berger in November of 2001 at the request of defense counsel, diagnosed Lifshitz as suffering from Schizoid Personality Disorder, which the doctor characterized as "a pervasive pattern of detachment from social relationships and a restricted range of expression of emotions in interpersonal settings." Another, dated February of 2002, and composed by Dr. Lawrence Siegel at the instruction of the government, concluded that Lifshitz had a personality disorder, and, disagreeing with Dr. Berger's conclusion that "[t]here is no evidence from psychiatric examination that Mr. Lifshitz has a pedophilic disorder or that he is a sexual predator," provisionally diagnosed pedophilia, with a sexual attraction to females, and sexual sadism. Finally, Dr. Thomas Hopkins, who treated Lifshitz for approximately 18 months after his arrest, asserted that the defendant suffered from depression and obsessive-compulsive disorder at the time of his arrest, illnesses that had been induced partially by the 1997 death of his father, with whom Lifshitz was, by all accounts, extremely close.1

When sentencing the defendant on April 7, 2003, the court determined that a downward departure to a noncustodial sentence--permitting Lifshitz to continue living at the house of his grandmother, with whom he had been residing since his arrest--would indeed be appropriate under the circumstances. In addition to defense counsel's letter and the government's objections, the court took into consideration an additional psychological report, generated

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by a Dr. McCarthy, suggesting that Lifshitz could be treated on an outpatient basis and that imprisonment might exacerbate his preexisting psychological problems. As Judge Patterson stated,

I think the most important thing for the defendant is continued treatment and I don't think that for the variety of psychological problems that he has, not the least of which is his problem with attraction to children under the age of 18, ... sentencing to prison will accomplish that objective.

The court therefore sentenced Lifshitz to three years probation rather than a prison term. At the same time as it granted this ten-level downward departure, the court imposed certain probation conditions, one of which underlies Lifshitz's appeal.

In addition to the mandatory conditions of probation, the court enumerated several other requirements, including, inter alia,2 that:

[T]he defendant shall consent to the installation of systems that will enable the Probation office or its designee to monitor and filter computer use on a regular or random basis and any computer owned or controlled by the defendant. The defendant shall consent to unannounced examinations of any computer equipment owned or controlled by the defendant which may result in the retrieval and copying of all data from the computer and any internal or external peripherals and may involve removal of such equipment for the purpose of conducting a more thorough investigation.

Defense counsel vigorously objected to this condition, noting that he believed it violated Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987), which he read as establishing a threshold of reasonable suspicion for probationary searches. The government argued, in response, that "the reason that computer searches are considered acceptable without prior notification is based upon the nature of the offense [for which Lifshitz] is convicted." Elaborating upon this justification, and introducing the first of many analogies that have appeared in this litigation, the government maintained that:

I don't think that the Griffin ruling applies because .... [t]his was a crime committed with the computer. We're not saying the defendant can't use computers. We're just saying that the Probation [O]ffice ought to be able to monitor his computer usage. It's not the same as his privacy interests in his home, for example.

It's more akin to his interests in his bank accounts[,] and if he had committed a financial crime, I don't think there's any question that the Probation [O]ffice could monitor his bank account activity, for example, without having reasonable suspicion that he was committing additional financial crimes.

So, it seems to me that the Probation [O]ffice should not need to have reasonable suspicion to monitor his computer usage given the nature of the crime he's committed.

The court disagreed, holding that the search "has to be based upon reasonable suspicion," and changing the condition by substituting the statement "upon reasonable suspicion, probation may make unannounced examinations of any computer equipment at home and controlled by the defendant" for the phrase "the defendant shall consent to and cooperate with."3

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After this reformulation, the Chief U.S. Probation Officer, Chris Stanton, wrote to the court, noting that the first sentence of the condition was, in his view, inconsistent with the second, and proposing an interpretation aimed at reconciling the two sentences. As Stanton stated in his letter of April 14, 2003, "I presume that it was the Court's intention to authorize the probation officer to monitor Lipfshitz' [sic] computer on a regular basis. If child pornography is then...

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