United States v. Murray

• Decision Date: 05 September 2012
• Docket Number: 11–3197.,Nos. 11–3196,s. 11–3196
• Citation: 692 F.3d 273
• Parties: UNITED STATES of America v. Charles F. MURRAY, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

692 F.3d 273

UNITED STATES of America

v.Charles F. MURRAY, Appellant.

Nos. 11–3196, 11–3197.

United States Court of Appeals, Third Circuit.

Argued March 27, 2012.

Filed: Sept. 5, 2012.

Lisa B. Freeland, Kimberly R. Branson (Argued), Federal Defenders of the WesternDistrict of Pennsylvania, Pittsburgh, PA, for Appellant Charles F. Murray.

Rebecca R. Haywood (Argued), Craig W. Haller, Unites States Attorney's Office for the Western District of Pennsylvania, Pittsburgh, PA, for the United States of America.

Before: FUENTES, SMITH and JORDAN, Circuit Judges.

OPINION OF THE COURT

FUENTES, Circuit Judge:

In 2004 in the District of New Jersey, Charles Murray pleaded guilty to traveling interstate to engage in illicit sexual conduct with a minor. Later that same year, in a separate case in the Eastern District of Pennsylvania, he pleaded guilty to possession of child pornography. For these offenses, he was sentenced to an aggregate term of 95 months' imprisonment, to be followed by concurrent three-year terms of supervised release. Both of Murray's sentencing judges imposed upon him various special conditions of supervised release that, for example, require him to register as a sex offender and to submit to unannounced searches of his computer.

After Murray was released from prison in July 2010, he moved to the Western District of Pennsylvania. That District thus assumed jurisdiction over him for the remainder of his term of supervised release. Though Murray had not violated his existing supervised release conditions, the Probation Office sought to modify them to bring them in line with the conditions of release that are typically used in the Western District. Some of the Probation Office's proposed conditions were duplicative of those already mandated by the Eastern District of Pennsylvania and District of New Jersey, but others were new. The District Court granted the Probation Office's request and imposed several new, more stringent conditions on Murray. Murray now appeals. For the reasons that follow, we will remand this case to the District Court.

I.

A.

In the spring of 2003, Murray made contact online with a 14 year-old boy and the two communicated via phone and instant message for several months. On two occasions in May 2003, Murray crossed state lines, picked up the boy, and took him to a private parking lot where they engaged in sexual acts. Although Murray insisted that the sex was consensual, the boy reported that he believed he did not have a choice. Thus, on April 1, 2004, Murray pleaded guilty to two counts of traveling in interstate commerce to engage in illicit sexual conduct with a minor, in violation of 18 U.S.C. § 2423(b). The District Court for the District of New Jersey sentenced him to a term of 83 months' imprisonment for each count, to be served concurrently, followed by a three-year term of supervised release. Along with the standard conditions of supervised release, the District Court imposed some additional conditions.¹

In July 2003, during the course of their investigation of the New Jersey case, federal officers executed a search warrant at Murray's Pennsylvania residence. The officers seized computer equipment, and found approximately 184 images of child pornography. Thus, on November 5, 2004 in the Eastern District of Pennsylvania, Murray pleaded guilty to one count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). The District Court sentenced Murray to 40 months' imprisonment, with 28 months to run concurrently to his New Jersey sentence and 12 months to run consecutively. In addition, it imposed a three-year term of supervised release, to run concurrently with the term of supervision imposed by the District of New Jersey. The Pennsylvania District Court also imposed some special conditions of supervised release.²

B.

On July 2, 2010, Murray was released from prison and began his term of supervised release.³ Murray relocated to a small city near Pittsburgh, Pennsylvania, and in August and September 2010, jurisdiction over him for the remainder of his supervised release terms was transferred to the Western District of Pennsylvania. Though Murray had not violated or otherwise failed to comply with any of his existing supervised release conditions, the Probation Office for the Western District of Pennsylvania sought to modify those conditions “to reflect the language approved by the Court in the Western District of Pennsylvania relative to individuals convicted of similar offenses.” App. 58. Some of the requested conditions were duplicative of those already mandated by the Eastern District of Pennsylvania and the District of New Jersey, but others were new. Among the Probation Office's proposed conditions were requirements that Murray:

1) participate in a mental health and/or sex offender treatment program and submit to polygraph testing to determine if he is in compliance with the conditions of his release;

2) register as a sex offender;

3) not possess any material depicting or describing sexually explicit conduct;

4) not possess any material depicting or describing child pornography;

5) consent to the installation of computer monitoring hardware/software to monitor any computer or electronic device he may use, and pay for the cost of this monitoring;

6) consent to the seizure and removal of any hardware or data storage media he might possess for further analysis by the Probation Officer upon reasonable suspicion that he committed an unlawful act or violated his conditions of supervised release; 7) notify his employer of the nature of his conviction if he is going to use a computer at work;

8) provide the Probation Officer with information, including passwords, about any and all computers and other electronic devices to which he has access; and

9) submit his person, property, house, residence, vehicle, papers, and business or place of employment to a search upon reasonable suspicion of contraband or a violation of a condition of supervision.

On March 29, 2011, the Probation Office submitted a Supplemental Petition requesting leave to incorporate additional language, which it had inadvertently omitted, into one of the proposed conditions. Specifically, the Probation Office expanded upon Proposed Condition Five to add a requirement that Murray submit any of his computers, cell phones, or other electronic devices to periodic, unannounced examinations by his Probation Officer.

Murray filed a brief in opposition to these modifications. He argued, among other things, that his conditions of supervised release should not be changed because he had not violated his existing release conditions, and he emphasized that the Probation Office had not explained why the existing conditions were insufficient to serve the purposes of sentencing. The Probation Office then filed Second Supplemental Petitions in both cases, in which it stated that it had “inadvertently included [in the previous petitions] conditions of supervision that would not be appropriate in this case.” App. 104. The Probation Office thus retracted proposed Conditions One (mental health treatment and polygraph testing), Two (sex offender registration), Three (possession of sexually explicit material), and Four (possession of material depicting child pornography) without describing why they were inappropriate.

A hearing was held before the District Court on May 25, 2011. The District Court ultimately issued an Opinion and Order that granted the Petition on Supervised Release and the Supplemental Petition and directed that Murray's conditions of supervised release be modified to impose all nine proposed conditions. The Court did not explain why it was mandating the imposition of those conditions that the Probation Office had since retracted, and it found that it could modify Murray's conditions of supervised release regardless of whether “new or unforeseen” circumstances had arisen. The Court also held, in the alternative, that if changed circumstances were required, the transfer of jurisdiction over Murray's case to the Western District of Pennsylvania was sufficient. The District Court noted that it had considered the relevant § 3553(a) factors and concluded that the requested conditions involved no greater deprivation of liberty than was reasonably necessary to achieve the goals of sentencing.

Murray filed a Motion for Reconsideration, in which he emphasized that the Probation Office had since retracted the first four proposed conditions. The District Court denied this motion, but also stated that it was amending its prior Order “to include the granting of the Second Supplemental Petitions on Supervised Release.” App. 12. Unfortunately, the import of this statement is unclear. Arguably, by granting the Second Supplemental Petitions, the Court could be said to have vacated the first four proposed conditions. As a practical matter, however, Murray's counsel represented to this Court at oral argument that Murray has been subject to at least Condition One, relating to polygraph testing. Thus, we will assume for the purposes of this opinion that the District Court never retracted the first four conditions.

Murray timely appealed from both District Court Orders.

II.

Murray's case was transferred to the Western District of Pennsylvania for oversight of his supervised release. Thus, the District Court had jurisdiction pursuant to 18 U.S.C. § 3605 (transfer of jurisdiction over a releasee) and 18 U.S.C. § 3583(e) (modification of supervised release conditions). We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.

III.

Generally, we “review challenges to the imposition of a special condition of supervised release, as well as a district court's decision to modify the terms of release, for abuse of discretion.” United States v. Smith, 445 F.3d 713, 716 (3d Cir.2006); see also United States v. Miller, 594 F.3d 172, 183 n. 6 (3d Cir.2010).

A.

18 U.S.C. § 3583(e)(2) provides that a court may, after...