United States v. Mike, 2011 U.S. App. LEXIS 3163

Background

Mike pled guilty to assault resulting in serious bodily injury; sentenced to 24 months in prison and 3 years supervised release.
Because of a 1997 sex offense, the court imposed standard sex-offender conditions plus several special conditions.
Special conditions include substance-abuse treatment, no contact with minors, employment restrictions with access to children, mental-health treatment, loitering restrictions near places used by children, restrictions on volunteering with vulnerable populations, and computer-use restrictions subject to monitoring.
The court imposed computer-monitoring and monitoring-within-computer-usage conditions, including software installation, tamper-resistance measures, inventory of computer access, and prohibitions on changing user IDs/passwords.
Mike objected to several conditions; the district court overruled most objections, sustaining some and denying others.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether computer monitoring conditions are properly justified and scope-clear.	Mike argues conditions lack clear scope and may apply to non-owned computers.	The government contends conditions relate to protection and treatment goals.	Remanded for scope clarification; the conditions may apply beyond Mike-owned computers.
Whether delegation to probation officer for inpatient treatment or plethysmographic testing is permissible.	Mike contends delegation violates constitutional limits on punishment.	Government argues delegation is permissible for ministerial-like decisions.	Delegation cannot decide significant liberty interests; court must provide particularized findings; however, ruling on specific delegation is remanded.
Whether the no-contact-with-children condition is vague/overbroad and implicates the Fifth Amendment.	Mike asserts ambiguity and potential coercive effect on self-incrimination.	Condition interpreted to prohibit associational contact with minors; not constitutionally infirm as applied.	Vagueness/overbreadth rejected; Fifth Amendment argument rejected because no incriminating statements yet made.
Whether the no-occupation-with-access-to-children condition is supported by findings and narrowly tailored.	Mike contends lack of necessary statutory findings renders the restriction improper.	Court did impose restrictions considering public safety and rehabilitation.	Remanded for necessary findings and narrowing to satisfy occupancy restriction standards.
Whether the third-party-notification condition constitutes an impermissible occupational restriction requiring findings.	Mike argues it functions as an occupational restriction needing § 5F1.5 findings.	Government agrees; seeks remand with proper findings.	Vacated to extent of notification; remand for findings if retained.

Key Cases Cited

United States v. Hahn, 551 F.3d 977 (10th Cir. 2008) (requires generalized reasoning for special conditions)
United States v. Esparza, 552 F.3d 1088 (9th Cir. 2009) (limits on delegation for significant liberty interests)
United States v. Matteson, 327 F. App’x 791 (10th Cir. 2009) (unpublished; interpretation of scope of computer-monitoring condition remanded for clarification)
United States v. Souser, 405 F.3d 1162 (10th Cir. 2005) (occupational restrictions must be narrowly tailored with required findings)
United States v. Loy, 237 F.3d 251 (3d Cir. 2001) (associational restrictions not extend to casual contact; requires proper scope)
United States v. Paul, 274 F.3d 155 (5th Cir. 2001) (interprets indirect/ direct contact restrictions in context)
United States v. BeE, 162 F.3d 1232 (9th Cir. 1998) (pornography prohibition upheld in some circumstances)
United States v. Brigham, 569 F.3d 220 (5th Cir. 2009) (commonsense reading of pornography prohibition)
United States v. Weber, 451 F.3d 552 (9th Cir. 2006) (plethysmographic testing related to liberty interests)
United States v. Zinn, 321 F.3d 1084 (11th Cir. 2003) (polygraph-related condition as non-infringing when not yet compelled)