U.S. v. T.M.

• Citation: 330 F.3d 1235
• Decision Date: 04 June 2003
• Docket Number: No. 02-10189.,02-10189.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. T.M., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

330 F.3d 1235

UNITED STATES of America, Plaintiff-Appellee, v. T.M., Defendant-Appellant.

No. 02-10189.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 12, 2003.

Filed June 4, 2003.

COPYRIGHT MATERIAL OMITTED

Deirdre M. Mokos, Brian I. Rademacher, Assistant Federal Public Defenders, Tucson, AZ, for the defendant-appellant.

Serra M. Tsethlikai, Richard E. Gordon, Assistant United States Attorneys, Tucson, AZ, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona; John M. Roll, District Judge, Presiding. D.C. No. CR-95-00517-JMR.

Before CANBY, O'SCANNLAIN, and W. FLETCHER, Circuit Judges.

CANBY, Circuit Judge.

T.M.¹ appeals the district court's imposition of certain conditions of supervised release relating to his alleged status as a sex offender. The alleged status was based on two events that occurred, respectively, forty and twenty years ago. Largely because of the remoteness of these incidents, several of the conditions are not reasonably related to the purposes of supervised release and the district court abused its discretion in imposing them. Two other conditions suffer from procedural deficiencies. We accordingly vacate the sentence and remand for resentencing.

I

In July 1996, T.M. pleaded guilty to one count of conspiracy to distribute and possess marijuana in violation of 21 U.S.C. § 846. At sentencing, the district court considered information in T.M.'s Presentence Investigation Report. The report stated that, in 1961, T.M. faced criminal charges of molesting a fifteen-year-old girl. Those charges were subsequently dropped. The report also revealed that in 1981, T.M. was convicted of kidnapping an eight-year-old girl. According to the report, T.M. took the girl to a motel, made her undress, and took photographs of her nude. The report states that T.M. penetrated her with two fingers, but T.M. denies that any such action ever took place. T.M. was sentenced to probation for this offense; he subsequently violated probation and served twenty-one months in prison.

Although T.M. faced a possible sentence of 120 months for the 1996 marijuana violation, the government recommended probation because of T.M.'s cooperation with the prosecutors. At the sentencing hearing, the judge noted his discomfort at ordering probation in light of what he considered to be T.M.'s history as a sex offender, but agreed to the probation on the condition that T.M. undergo psychological treatment.

In April 1999, the government filed a petition claiming that T.M. violated his probation by associating with a previously-convicted felon named Robert Hrdlicka. T.M. knew Hrdlicka because they had shared a cell for a few days while in prison. According to the petition, T.M. and Hrdlicka attempted to enter Alberta, Canada in February 1999. At the border, T.M. and Hrdlicka identified themselves as clergymen who wanted to set up a charity to provide aid for "the needy children of Alberta." They were denied entry because of their past criminal convictions. Hrdlicka previously had been convicted of seven counts of indecent acts with a child. T.M. asserts that he did not know of these convictions at the time of the attempted entry into Canada.

T.M. reached a plea agreement with the government whereby he admitted the probation violation in exchange for a maximum of six months incarceration for the violation. The district court deferred a decision on the plea agreement until T.M. underwent a mental health examination. The psychologist performing the examination wrote an evaluation hypothesizing that T.M. was experiencing difficulty coming to grips with the consequences and magnitude of his past actions and that he tended to place responsibility for his behavior on outside causes. As a result, the evaluation concluded that T.M.'s behavior was consistent with that of an "untreated" sex offender and that his reliability as a self-reporter of his problems was "mixed and incomplete." The report recommended that the district court impose a number of conditions on T.M.'s probation geared toward preventing future sex offenses.

On February 9, 2000, the district court ruled that T.M. was to continue on probation, but the court attached additional conditions because of the "substantial risk" that T.M. might commit future sex offenses. The new conditions required T.M. to participate in sex offender treatment and to submit to risk assessment that could include polygraph examination. The conditions also forbade T.M. to have any contact with children under eighteen without permission of the probation officer, to possess any pornography or sexually stimulating material without permission from the probation officer, to engage in any occupation where he would have access to minors, to possess any camera or recording device, or to access the internet or possess a computer without permission from the probation officer.

In November 2001, T.M.'s probation officer filed a new petition to revoke probation, alleging that T.M. committed fraud, that he again had associated with a previously-convicted felon — one Robert Pyle — in seeking to establish another children's charity, and that he possessed both a videocassette cover box containing pornographic scenes and an unused one-time-use camera. T.M. and the government agreed to a maximum sentence of twenty four months and dismissal of the fraud allegation in exchange for T.M.'s admission that he possessed the camera and the video box, and that he associated with Pyle. This plea agreement apparently was never reduced to writing.

In March 2002, the district court held a disposition hearing on T.M.'s probation violation. The district court revoked T.M.'s probation and sentenced him to twenty-four months incarceration plus an additional 414 days for time already spent in custody followed by sixty months of supervised release. T.M. had submitted a disposition memorandum requesting that the court not impose requirements of sex offender treatment and the avoidance of pornography as conditions of the supervised relief. T.M. had been given a polygraph examination in accordance with the court's earlier authorization, and the polygrapher's report indicated that T.M. had been truthful in denying that he had engaged in any sexual conduct, or had even entertained any sexual fantasies, involving minors in the twenty years since his 1981 conviction. The district court stated that this polygraph result was not "a responsible or credible factor that should outweigh everything else and should result in the termination of sex offender treatment." The district court accordingly retained all the previous conditions of probation and added several new conditions. The final numbered conditions of supervised release set forth in the court's written order included the following conditions that are challenged on this appeal. Those conditions provide that T.M.:

3. [is] prohibited from making major purchases, incurring new financial obligations, or entering into any financial contracts without the prior approval of the probation officer.

4. participate in sex offender treatment as directed by the probation officer and submit to risk assessment including physiological testing which may include, but is not limited to, polygraph, plethysmograph, and/or ABEL Assessment. Contribute to the cost of treatment in an amount to be determined by the probation officer.

6. not have contact with children under the age of 18 without prior written permission of the probation officer, and shall report any unauthorized contact immediately to the probation officer.

7. not possess any form of pornography, sexually stimulating, or sexually oriented material as deemed inappropriate by the probation officer and/or treatment staff. [T.M.] shall not enter any location where pornography or erotica can be accessed, obtained, or viewed.

8. not possess any type of camera or video recording device.

9. [is] restricted from engaging in any occupation, business, or profession where [T.M.] ha[s] access to children without prior permission of the probation officer.

10. register with the state sex offender agency in any state where [T.M.] reside[s], [is] employed, carr[ies] on a vocation, or [is] a student, as directed by the probation officer.

11. maintain an appropriate appearance at all times which includes the wearing of undergarments, and appropriate outer clothing in the home or places where others might view [T.M.], or be present.

12. not possess or use a computer with access to any "on-line computer service" at any location (including place of employment) without the prior written approval of the probation officer. This includes any Internet Service provider, bulletin board system or any other public or private network or e-mail system.

13. not utilize any sex-related adult telephone numbers. The probation officer will verify compliance through the submission of personal/business telephone records.

14. participate in a Home Confinement Program with electronic monitoring under the sanction of detention for a period of 180 days. Contribute to the cost of electronic monitoring in an amount to be determined by the probation officer.

This appeal followed.

II

The district court has wide discretion to impose conditions of supervised release.² United States v. Consuelo-Gonzalez, 521 F.2d 259, 262 (9th Cir.1975) (en banc). That discretion is not unfettered, however; the conditions imposed are permissible only if they are reasonably related to the goal of deterrence, protection of the public, or rehabilitation of the offender. See 18 U.S.C. § 3583(d)(1); 18 U.S.C. § 3553(a). Even if T.M.'s conditions meet the above requirements, they still can involve "no greater deprivation of liberty than is reasonably necessary for the purposes" of supervised release. 18 U.S.C. § 3583(d)(2). The supervised release conditions need not relate to the offense for which T.M. was convicted as long as ...