U.S. v. Zinn

• Decision Date: 14 February 2003
• Docket Number: No. 02-10782.,02-10782.
• Citation: 321 F.3d 1084
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Karl P. ZINN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

321 F.3d 1084

UNITED STATES of America, Plaintiff-Appellee, v. Karl P. ZINN, Defendant-Appellant.

No. 02-10782.

United States Court of Appeals, Eleventh Circuit.

February 14, 2003.

Fritz J. Schelleer, R. Fletcher Peacock, Federal Public Defender, Orlando, FL, for Defendant-Appellant.

Peggy Morris Ronca, Jacksonville, FL, Tamra Phipps, Tampa, FL, Roberta Josephina Tylke, Asst. U.S. Atty., Orlando, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before TJOFLAT and BLACK, Circuit Judges, and GOLDBERG^*, Judge.

BLACK, Circuit Judge:

Appellant Karl P. Zinn pled guilty to possessing child pornography and was sentenced to imprisonment to be followed by a period of supervised release. The supervised release included a number of special conditions, four of which Appellant challenges on appeal. Finding no reversible error, we affirm Appellant's sentence in its entirety.

I. BACKGROUND

On May 13, 2002, Appellant pled guilty¹ to a one-count indictment charging him with possessing materials containing images of child pornography that had been mailed, shipped or transported in interstate commerce, in violation of 18 U.S.C. § 2252A(a)(5)(B). According to the presentence investigation report (PSR), to which Appellant raised no objections and the district court adopted as its findings of fact, on March 15, 2001, Appellant contacted an undercover United States Customs Service web site and expressed an interest in purchasing two pornographic videotapes depicting girls between the ages of 6 and 13 years old. He subsequently received an order form, which he completed and mailed to the web site operators along with a check for $85. On April 3, 2001, two child pornographic video tapes arrived at Appellant's home as part of a controlled delivery. Hours later, Customs agents executed a search warrant of the home and recovered compact discs and computer diskettes containing in excess of 4,000 images of child pornography. During his plea hearing, Appellant admitted to the district court that he had "received child pornography over the internet."

The PSR noted Appellant admitted being suicidal and had voluntarily begun mental health counseling shortly after his arrest. His attorney also told the district court during sentencing that Appellant suffered from "profound psychological problems" and requested that Appellant be placed in a federal medical facility where he could receive appropriate treatment. The district court sentenced Appellant to a term of 33 months' imprisonment, with a recommendation that he be committed to a medical facility. The court also sentenced Appellant to a term of three years' supervised release, which included the following special conditions:

[1] You shall participate as directed in a program of mental health treatment including a sexual offender treatment program approved by the probation officer. You shall abide by the rules, requirements and conditions of the treatment program, including submitting to polygraph testing, at your own expense, to aid in the treatment and supervision process. The results of the polygraph examination may not be used as evidence in court to prove that a violation of community supervision has occurred, but may be considered in a hearing to modify release conditions.

Further, you shall be required to contribute to the costs of services for such treatment in an amount determined reasonable by the probation officer based upon ability to pay or availability of third-party payment and in conformance with the Probation Office's sliding scale for mental health treatment services. [2] You shall register with the State Sexual Offender Registration Agency [in] any State where you reside, visit, or are employed, carry on a vocation or are a student as directed by your probation officer. The probation officer will provide State officials with all information required under Florida Sexual Predators and Sexual Offender Notification and Registration Statutes and [may] direct you to report to these agencies personally for required additional processing such as photographic, fingerprinting and DNA collection.

[3] You shall have no direct contact with minors under the age of 18 without the written approval of the probation officer and shall refrain from entering into any area where children frequently congregate including schools, day care centers, theme parks, playgrounds, et cetera.... [4] You shall not possess or use a computer with access to any on-line service at any location, including employment, without written approval from the probation officer. This includes access through any Internet service provider, bulletin board system, or any public or private computer network system....²

After the district court imposed sentence, Appellant's counsel objected to the special conditions of supervised release:

And I would also like to state for the record my objections to the supervised release conditions that this Court has imposed. I think, well, I object in particular to the polygraph examination. I think that's not a proper condition of his supervised release. I think that, I strongly object to that condition Your Honor.

I also object to the restrictions as to the internet access. I think there's some First Amendment concerns there. I also object, I will say for the record I object to many of the restrictions this Court has put on his supervised release. I think it's unduly harsh. I think it also violates his Constitutional rights. The First and Eighth Amendments and I think that, I understand the Court's concern in these type of cases, but I think, I think the Court has been unduly harsh with Mr. Zinn. I think the supervised release constitutes an excessive punishment.

The district court overruled the objections. Appellant then filed a timely notice of appeal.

II. STANDARD OF REVIEW

This Court ordinarily reviews the district court's sentence of supervised release for abuse of discretion. See United States v. Bull, 214 F.3d 1275, 1278 (11th Cir.2000). Where a defendant fails to clearly state the grounds for an objection in the district court, however, he waives the objection on appeal and we are limited to reviewing for plain error. United States v. Delgado, 903 F.2d 1495, 1504 (11th Cir.1990); United States v. Jones, 899 F.2d 1097, 1103 (11th Cir.1990), overruled on other grounds, United States v. Morrill, 984 F.2d 1136 (11th Cir.1993); see also United States v. Riggs, 967 F.2d 561, 565 (11th Cir.1992) (noting that a defendant who fails to articulate a "clear objection" to a supervised release condition waives the objection on appeal). To find reversible error under the plain error standard, we must conclude that (1) an error occurred, (2) the error was plain, and (3) the error affected substantial rights. United States v. Richardson, 304 F.3d 1061, 1064 (11th Cir.2002).

Regarding the degree of clarity needed to preserve an objection for appeal, we have stated that:

Whenever a litigant has a meritorious proposition of law which he is seriously pressing upon the attention of the trial court, he should raise that point in such clear and simple language that the trial court may not misunderstand it, and if his point is so obscurely hinted at that the trial court quite excusably may fail to grasp it, it will avail naught to disturb the judgment on appeal.

Riggs, 967 F.2d at 564 (quoting United States v. Reyes-Vasquez, 905 F.2d 1497, 1500 (11th Cir.1990)). Thus, if a defendant fails to clearly articulate a specific objection during sentencing, the objection is waived on appeal and we confine our review to plain error.

III. DISCUSSION

On appeal, Appellant challenges the special conditions of supervised release: (1) requiring him to register as a sexual offender; (2) prohibiting him from entering places where children frequent; (3) requiring him to submit to polygraph testing; and (4) prohibiting him from using the Internet. As to the first two, we conclude the district court did not err and affirm without further discussion.³ We write, however, to address the remaining two special conditions.

A. Polygraph Testing

Appellant asserts the special condition requiring him to submit to polygraph testing: (1) is not reasonably related to the history and facts of this case, (2) improperly delegates judicial authority to the probation officer, (3) violates his Fifth Amendment privilege against self-incrimination, and (4) improperly requires him to pay for polygraph testing despite his inability to do so.

We will address each of these arguments seriatim. Before turning to the merits, however, we first consider the Government's contention that Appellant's challenge to the polygraph testing is generally not ripe for our review because supervised release has not yet begun.

1. Ripeness.

Federal courts are constrained under Article III to deciding only actual cases or controversies. U.S. CONST. art. III, § 2. As part of the case or controversy requirement, a party must come into immediate danger of suffering injury before a court may consider his claim. Kirby v. Siegelman, 195 F.3d 1285, 1289 (11th Cir.1999). Ripeness "prevent[s] the courts, through the avoidance of premature adjudication, from entangling themselves in abstract disagreements." Id. (quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967)). An injury need not have already occurred, however, for a controversy to be ripe. Rather, we have found claims on appeal ripe where they assert an imminent threat of future injury. Ecee Inc. v. Fed. Energy Regulatory Comm'n, 611 F.2d 554, 557 n. 7 (5th Cir. 1980).⁴

Contrary to the Government's assertions, Appellant's challenge to the polygraph exam is neither premature nor speculative. The district court's sentence, of which the conditions of supervised release are a part, is a final judgment immediately appealable to this Court. See 18 U.S.C. § 3742(a). Moreover, though he is...