U.S. v. Voelker

• Decision Date: 05 June 2007
• Docket Number: No. 05-2858.,05-2858.
• Citation: 489 F.3d 139
• Parties: UNITED STATES of America v. Daniel VOELKER, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

489 F.3d 139

UNITED STATES of America v. Daniel VOELKER, Appellant.

No. 05-2858.

United States Court of Appeals, Third Circuit.

Argued: July 13, 2006.

Opinion Filed June 5, 2007.

Karen S. Gerlach, Renee Pietropaolo (Argued), Office of Federal Public Defender, Pittsburgh, PA, for Appellant.

Robert L. Eberhardt (Argued), Laura S. Irwin, Office of United States Attorney, Pittsburgh, PA, for Appellee.

Before: SLOVITER, McKEE and RENDELL, Circuit Judges.

OPINION

McKEE, Circuit Judge.

Daniel Voelker was sentenced to seventy-one months in prison followed by a lifetime term of supervised release after he pled guilty to possessing child pornography in violation of 18 U.S.C. § 2252(a)(2). He appeals only the special conditions that the court imposed on the term of supervised release. For the reasons that follow, we will vacate those conditions and remand for resentencing consistent with this opinion.

I. BACKGROUND

During an FBI investigation into the online activity of Wyndell Williams, agents monitored a computer "chat" between Williams and Daniel Voelker. During this online communication, Voelker, a thirty-five year-old Pennsylvania resident, briefly exposed the buttocks of his three year-old daughter over a webcam that was connected to his computer.

When the FBI subsequently confronted Voelker with this information, he acknowledged downloading child pornography onto his computer, and he directed agents to computer discs where the files were stored. He also admitted to partially exposing his daughter over his webcam, but he insisted that statements he had made about sexual contact with minors or offering his daughter for sex were merely gratuitous statements in the nature of "role-playing." He claimed that he never intended to follow through on any of those statements but admitted that he engaged in such online "role-playing" on a daily basis. Agents subsequently searched Voelker's home pursuant to a warrant and seized computer files containing child pornography.

Thereafter, Voelker waived indictment and pled guilty to receipt of material depicting the sexual exploitation of a minor in violation of 18 U.S.C. § 2252(a)(2). Under the terms of the plea agreement, Voelker also accepted responsibility for a second count of possession of material depicting the sexual exploitation of a minor in violation of 18 U.S.C. § 2252(a)(4)(B), but that count was subsequently dismissed on motion of the government.

As noted at the outset, the District Court sentenced Voelker to seventy-one months incarceration followed by a lifetime term of supervised release pursuant to 18 U.S.C. § 3583(k). The lifetime term of supervised release and three conditions the court imposed are the subject of this appeal. As summarized by the government, the conditions were as follows:

1. The defendant is prohibited from accessing any computer equipment or any "on-line" computer service at any location, including employment or education. This includes, but is not limited to, any internet service provider, bulletin board system, or any other public or private computer network;

2. The defendant shall not possess any materials, including pictures, photographs, books, writings, drawings, videos or video games depicting and/or describing sexually explicit conduct as defined at Title 18, United States Code, Section 2256(2); and

3. The defendant shall not associate with children under the age of 18 except in the presence of a responsible adult who is aware of the defendant's background and current offense and who has been approved by the probation officer.

This appeal followed.¹

II. DISCUSSION.

A sentencing judge is given wide discretion in imposing a sentence. However, the discretion is not absolute. It must be exercised within the parameters of 18 U.S.C. § 3583. United States v. Crandon, 173 F.3d 122, 127 (3d Cir.1999). Section 3583(d) requires a sentencing court to impose certain statutorily mandated conditions as part of any term of supervised release. These mandatory conditions include such generally applicable conditions as attendance at court approved rehabilitation programs, supplying a DNA sample, and testing for controlled substances. 18 U.S.C. § 3583(d). Section 3583(d) also allows the court to impose more specific conditions of supervised release tailored to the specific offense and offender. However, any such condition must be "reasonably related" to the factors set forth in 18 U.S.C. § 3553(a). Those factors include: "(1) the nature and circumstances of the offense and the history and characteristics of the defendant; [and] (2) the need for the sentence imposed . . . (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner." 18 U.S.C. § 3553(a). Any such condition must impose "no greater deprivation of liberty than is reasonably necessary" to deter future criminal conduct, protect the public, and rehabilitate the defendant. 18 U.S.C. § 3583(d)(2); see United States v. Pruden, 398 F.3d 241, 248 (3d Cir.2005) (noting that the considerations included in § 3583 by the incorporation of § 3553 "are fairly broad, but they do impose a real restriction on the district court's freedom to impose conditions on supervised release.").

Conditions of supervised release must be supported by some evidence that the condition imposed is tangibly related to the circumstances of the offense, the history of the defendant, the need for general deterrence, or similar concerns. Pruden, 398 F.3d at 248-49. "[A] condition with no basis in the record, or with only the most tenuous basis, will inevitably violate § 3583(d)(2)'s command that such conditions involve no greater deprivation of liberty than is reasonably necessary." Id. at 249 (internal quotations omitted). Accordingly, "courts of appeals have consistently required district courts to set forth factual findings to justify special probation conditions." United States v. Warren, 186 F.3d 358, 366 (3d Cir.1999).²

Where a sentencing court fails to adequately explain its reasons for imposing a condition of supervised release or the condition's relationship to the applicable sentencing factors, we may nevertheless affirm the condition if we can "ascertain any viable basis for the . . . restriction in the record before the District Court . . . on our own." See id., 186 F.3d at 367.

Although Voelker is challenging the lifetime term of his supervised release as well as the three special conditions of supervised release set forth above, we need not separately address his challenge to the term of his supervised release. Our discussion of the propriety of the conditions imposed on that term applies to duration of the term with equal force. Accordingly, we will focus on the propriety of the conditions of the supervised release.

A. PROHIBITION OF COMPUTER EQUIPMENT AND THE INTERNET

Voelker contends that an absolute lifetime ban on using computers and computer equipment as well as accessing the internet, with no exception for employment or education, involves a greater deprivation of liberty than is reasonably necessary and is not reasonably related to the factors set forth in 18 U.S.C. § 3583. We agree.

The District Court did not explain its reasons for imposing such an unprecedented and sweeping lifetime restriction. We therefore have no way of determining if the court undertook the "careful and sensitive individualized assessment [that] is always required before such a ban is imposed." United States v. Johnson, 446 F.3d 272, 282 n. 2 (2d Cir.2006).

Given this record, we assume that the court imposed the ban because computers and the internet were inextricably involved in his criminal conduct. Nevertheless, given the extraordinary breadth of this condition and the absence of any explanation, we are at a loss to understand how the District Court could have considered the factors contained in § 3553(a) and concluded that this condition is narrowly tailored to impose no greater restriction than necessary. The condition is the antithesis of a "narrowly tailored" sanction. The lifetime ban on all computer equipment and the internet is the functional equivalent of prohibiting a defendant who pleads guilty to possession of magazines containing child pornography from ever possessing any books or magazines of any type during the remainder of his/her life.

The ubiquitous presence of the internet and the all-encompassing nature of the information it contains are too obvious to require extensive citation or discussion. Even a casual user of the "information highway" will realize that it instantly provides near universal access to newspapers such as the New York Times; the Wall Street Journal and the Washington Post; to popular magazines such as Newsweek and Time, such respected reference materials as the Encyclopedia Britannica and World Book Encyclopedia, and much of the world's literature.³

We realize, of course, that the anonymous access to all kinds of information opens the door to all kinds of abuse. This case clearly illustrates the potential for abuse and victimization that is also endemic in the internet.⁴ Here, the victims of that abuse are children who tragically become involved in the world of online child pornography. This was obviously the District Court's concern and focus in imposing this condition.

Nevertheless, we have never approved such an all-encompassing, severe, and permanent restriction, and nothing on this record inspires confidence in the propriety of doing so now. The court in Crandon imposed the most severe restriction on computer and internet use that we have thus far upheld. 173 F.3d at 128. There, Crandon, a thirty-nine year-old New Jersey resident, met a fourteen year-old girl from Minnesota online. Id. at 125. Crandon communicated with the girl over the internet for...