5 F.4th 535
4th Cir.2021Background
- Marysa Comer pleaded guilty in the W.D. Wash. to conspiracy to engage in sex trafficking (18 U.S.C. §§ 1591, 1594) after recruiting women via social-networking sites and using Facebook to coerce and expose a victim.
- While on supervised release, Comer used Facebook to communicate with a felon and facilitate drug activity, and she maintained an undisclosed, unmonitored phone in violation of supervision terms.
- At a revocation hearing the district court found five violations, revoked supervision, sentenced Comer to time served, and reimposed five years of supervised release (extending supervision to June 2024).
- The court added a special condition: Comer may not have any "social networking accounts" without approval of her U.S. Probation Officer; Probation explained it would bar sites used to meet/recruit people (e.g., Facebook, dating apps) but allow news or LinkedIn.
- Comer appealed, arguing the social-networking condition was unconstitutionally vague, overbroad/greater-than-necessary (including infringement of finding romantic partners online), and an improper Article III delegation; she also challenged the probation officer sitting at the Government’s table during the hearing.
Issues
| Issue | Comer’s Argument | Government’s Argument | Held |
|---|---|---|---|
| Vagueness of "social networking account" | Term does not give fair notice which sites/accounts are restricted | Term has commonsense meaning (accounts used to meet/communicate) and Probation’s instructions clarify scope; inadvertent violations not punished | Not unconstitutionally vague — has core meaning, Probation guidance, implied scienter, and as-applied review available |
| Overbreadth / greater-than-necessary deprivation of liberty (including online romantic associations) | Condition is broader than necessary and infringes liberty to find partners online | Condition is reasonably related to deterrence, protection, rehabilitation under 18 U.S.C. § 3583(d) given Comer’s history of using social networks to recruit/coerce and evade monitoring | No abuse of discretion — condition satisfies § 3583(d) and is narrowly tailored to risks posed by Comer |
| Article III nondelegation (authority to define which sites constitute social networks) | Delegating to Probation to decide what sites qualify violates Article III | Court retained the core judicial function (set principle and retains revocation authority); Probation’s role is administrative/supportive | No impermissible delegation — permissible to let Probation implement details so long as court retains ultimate authority |
| Probation officer sitting at Government’s table / whispering to prosecutors | Seating and communications created separation-of-powers and due-process concerns; requested new hearing | No preserved objection; at most a practice concern; Turner is persuasive but not controlling; plain-error standard not met | No plain error requiring new hearing, but court advises Probation should sit separately to avoid appearance issues |
Key Cases Cited
- United States v. Van Donk, 961 F.3d 314 (4th Cir. 2020) (vagueness and application of supervised-release conditions; inadvertent-violation protection)
- United States v. Hamilton, 986 F.3d 413 (4th Cir. 2021) (commonsense interpretation of supervised-release conditions and internet-restriction factors)
- Johnson v. United States, 576 U.S. 591 (2015) (void-for-vagueness principles)
- United States v. Ullmann, 788 F.3d 1260 (10th Cir. 2015) (standard for reviewing nondelegation challenges to supervised-release conditions)
- United States v. Miller, 77 F.3d 71 (4th Cir. 1996) (permitting use of nonjudicial officers to support judicial functions when court retains responsibility)
- United States v. Turner, 203 F.3d 1010 (7th Cir. 2000) (probation officer perceived as surrogate prosecutor; advisory guidance to avoid appearance problems)
- United States v. Halverson, 897 F.3d 645 (5th Cir. 2018) (upholding internet-access-with-probation-approval conditions against nondelegation challenge)
- Packingham v. North Carolina, 137 S. Ct. 1730 (2017) (Supreme Court discussion of broad categories like "social networking" in First Amendment context)