United States v. Taylor, 14–3790.

• Decision Date: 06 August 2015
• Docket Number: No. 14–3790.,14–3790.
• Citation: 796 F.3d 788
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Jeffrey P. TAYLOR, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

796 F.3d 788

UNITED STATES of America, Plaintiff–Appellee

v.Jeffrey P. TAYLOR, Defendant–Appellant.

No. 14–3790.

United States Court of Appeals, Seventh Circuit.

Argued May 22, 2015.

Decided Aug. 6, 2015.

Daniel L. Bella, Attorney, Office of the United States Attorney, Hammond, IN, for Plaintiff–Appellee.

Viniyanka Prasad, Attorney, Indiana Federal Community Defenders, Inc., Hammond, IN, for Defendant–Appellant.

Before EASTERBROOK, WILLIAMS, and HAMILTON, circuit Judges.

Opinion

WILLIAMS, Circuit Judge.

Jeffrey Taylor appeals several special conditions of the probation he received after his sexually explicit displays on a web camera and conversations in an internet chatroom with what he thought to be a thirteen-year-old girl. We agree with him that the record does not support a ban on viewing legal adult pornography. Adult pornography did not facilitate or lead to Taylor's offense here, and there is no evidence or finding that viewing otherwise legal pornography would increase the likelihood he would recidivate. In light of his use of his computer to attempt to contact a young teenage girl, however, we affirm the imposition of a condition that requires Taylor to make his internet-capable devices available for inspection, even without any reasonable suspicion that he has committed a new crime. Finally, we agree with Taylor that the special conditions as currently worded contain an overly broad complete ban on knowing contact with minors.

I. BACKGROUND

Taylor's case has been before our court twice. During his most recent appeal, we summarized Taylor's offense conduct as follows:

On August 2, 2006, Taylor entered an online chat room and began a conversation with “elliegirl1234.” “Ellie” identified herself as a 13–year–old girl from Lafayette, Indiana. Taylor responded that he was 37 and from Logansport. The conversation quickly became graphic as Taylor described his physique and asked whether Ellie had engaged in sexual acts with her boyfriend. Taylor wanted to see Ellie [ ] masturbate in front of a webcam; he asked her whether she had a webcam, but she indicated that she did not. Taylor then turned on his webcam and masturbated in front of it so that Ellie could see.

Taylor and Ellie conversed online on multiple occasions over the next two weeks. The conversations were always sexual in nature. On August 14 the conversation turned to arranging a meeting in person, and Taylor asked Ellie to fantasize about what would happen if the two met. Taylor expressed some concern about meeting in person because he “could go to jail.” (In an earlier conversation, he had referred to Ellie as “jailbait.”) During this online chat, Taylor masturbated a second time in front of his webcam so that Ellie could see.

Ellie was not a 13–year–old girl but an online identity assumed by law-enforcement personnel working on a joint federal-state sting operation targeting child sex offenders. One of the investigators used a picture of herself from when she was 15 or 16 to help create the chat-room profile.

United States v. Taylor, 777 F.3d 434, 437 (7th Cir.2015).

A jury convicted Taylor of violating 18 U.S.C. § 2422(b), although we overturned that conviction on appeal because his conduct did not constitute “sexual activity” under that statute. United States v. Taylor, 640 F.3d 255, 259–60 (7th Cir.2011). The government then charged Taylor for the same conduct under a different statute, this time 18 U.S.C. § 1470, which punishes the transfer or attempted transfer of obscene material to a person under the age of sixteen years through a means of interstate commerce. A jury found Taylor guilty, and he received a sentence of three years of probation. (The judge recognized that Taylor had already served more than four years in custody on the overturned conviction, which exceeded the United States Sentencing Guidelines' recommendation for the new conviction.) The district court entered final judgment on August 15, 2012.

Taylor filed his notice of appeal the next day. On September 25, 2014, while his appeal was pending, he filed a motion asking the district court to modify the conditions of his probation. The district court granted in part and denied in part this request in an order dated December 22, 2014. That same day, Taylor filed a notice of appeal of the district court's order modifying the probation conditions. About a month later, we upheld Taylor's conviction on appeal. United States v. Taylor, 777 F.3d 434 (7th Cir.2015). Taylor contests in this appeal certain special conditions imposed in the December 22, 2014 order that modified the conditions of his probation.

II. ANALYSIS

A. Jurisdiction to Modify Special Conditions

An initial question is whether the district court had jurisdiction to enter the December 22, 2014 order modifying Taylor's conditions of probation. Because the district court's order came after Taylor filed his notice of appeal of his criminal conviction, one might wonder whether the district court had the authority to modify the conditions of Taylor's probation as it did. See Griggs v. Provident Consumer Disc., Co., 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) (per curiam) (“The filing of a notice of appeal is an event of jurisdictional significance—it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.”). The government and Taylor both took the position during briefing that the district court had the authority, by virtue of 18 U.S.C. § 3563(c), to modify Taylor's conditions of probation even though the appeal of his conviction was pending in our court. Nonetheless, we must fulfill our independent obligation to ensure that federal courts have subject-matter jurisdiction throughout the proceedings. See United States v. Beard, 745 F.3d 288, 291 (7th Cir.2014).

The statute at issue, 18 U.S.C. § 3563(c), provides that “[t]he court may modify, reduce, or enlarge the conditions of a sentence of probation at any time prior to the expiration or termination of the term of probation....” The question is whether the words “at any time” in the statute give the district court the authority to enter the order modifying the conditions of probation when it did.

After the oral argument in this case, we considered an analogous situation in United States v. Ramer, 787 F.3d 837 (7th Cir.2015) (per curiam). There, a defendant was convicted of conspiracy to commit wire fraud and sentenced to forty-two months' imprisonment and three years of supervised release. Id. at 838. One special condition of supervised release ordered the payment of restitution “at a rate of not less than $100 per month.” The defendant filed an appeal, arguing that the restitution order should have been premised on his ability to pay. While briefing was taking place in our court, the district court amended its judgment to condition the defendant's restitution payment obligation on the defendant's ability to pay. Id.

Our first question was whether the district court had jurisdiction to revise the judgment since the defendant had already filed his notice of appeal. We recognized that ordinarily, filing a notice of appeal means the district court no longer has jurisdiction. Id. (citing United States v. Brown, 732 F.3d 781, 787 (7th Cir.2013) and United States v. McHugh, 528 F.3d 538, 540 (7th Cir.2008) ). But we recognized there are exceptions. Id. (collecting cases). We assessed whether another exception to the general rule existed in 18 U.S.C. § 3583(e)(2), which provides that district courts may “modify, reduce, or enlarge the conditions of supervised release, at any time prior to the expiration or termination of the term of supervised release.” Id. Consistent with the First Circuit's decision in United States v. D'Amario, 412 F.3d 253 (1st Cir.2005), we held that Congress's use of “at any time” in 18 U.S.C. § 3583(e)(2) meant that the district court retained jurisdiction to modify the defendant's conditions of supervised release even while his appeal was pending. Ramer, 787 F.3d at 838–39.

Ramer resolves the jurisdictional issue for us and means that the district court had jurisdiction to modify Taylor's conditions of probation. The statute at issue for Taylor, 18 U.S.C. § 3563(c), contains the exact same language allowing for modification “at any time” as does 18 U.S.C. § 3583(e)(2), the supervised release provision at issue in Ramer; the only difference is that one applies to conditions of probation and the other to conditions of supervised release. That difference is not material here, so the district court had jurisdiction to modify Taylor's conditions of probation as it did.

That is certainly not to say that the district court can make any change it wishes after a notice of appeal has been filed. See, e.g., Brown, 732 F.3d at 787 (district court lacked jurisdiction to recalculate guidelines range after notice of appeal filed); McHugh, 528 F.3d at 540 (district court lacked authority to make non-clerical change to sentence after notice of appeal filed); see also In re Teknek, LLC, 563 F.3d 639, 650 (7th Cir.2009). Griggs remains the law, and we remind litigants to keep in mind Federal Rule of Criminal Procedure 37, which governs timely motions for relief that the district court lacks authority to grant because of a pending appeal (in the civil context, the rule is Federal Rule of Civil Procedure 62.1 ), as well as our Circuit Rule 57.¹ In light of our decision in Ramer that the district court had the authority to make the modification it did, no Circuit Rule 57 request was needed here.

B. Challenges to Special Conditions of Probation

Satisfied that there is no jurisdictional impediment to proceeding, we turn to the three special conditions of probation that Taylor challenges. Special conditions of probation must be reasonably related to (1) the defendant's offense, history, and characteristics; (2) the need to reflect the seriousness of the offense, promote respect for the law, and...