UNITED STATES of America, Plaintiff-Appellee, v. Ephesian Johnny FRANKLIN, Defendant-Appellant.
No. 15-20622
United States Court of Appeals, Fifth Circuit.
FILED September 28, 2016
838 F.3d 564
Before HIGGINBOTHAM, ELROD, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge
In sum, allowing discovery of U visa information may have a chilling effect extending well beyond this case, imperiling important public purposes. The district court, while thoughtful, confined its focus to the interests of the individuals before it. We agree with most of the district court‘s careful consideration of the sensitive issues presented. But having weighed all of the problems U visa discovery may cause against Koch‘s admittedly significant interest in obtaining the discovery, we are compelled to conclude that the discovery the district court approved would impose an undue burden and must be redefined.
VII
Rather than impose an order of our own, we remand to the district court to devise an approach to U visa discovery that adequately protects the diverse and competing interests at stake. Our discussion indicates the basics of that approach. Because claimants’ U visa applications would be novel and significant impeachment evidence, we do not forbid U visa discovery outright. At a minimum, however, any U visa discovery must not reveal to Koch the identities of any visa applicants and their families, at least in the liability phase. In the liability phase, the probative value of the U visa evidence is maintained even though it is anonymized because the trier of fact is charged with determining liability to the complainants as a whole, and therefore the proportion of complainants who have applied for U visas in connection with this matter is informative regardless of the identity of specific applicants. However, if the trier of fact determines that Koch is liable to the complainants, then it will likely be necessary to de-anonymize the U visa application discovery for the purpose of proceeding with individual damages determinations, as proof in that regard necessarily must be individualized.
Beyond these broad contours, we leave the management of U visa discovery to the district court.
In light of the above, we VACATE the district court‘s certified discovery orders and REMAND for further proceedings not inconsistent with this opinion.
Marjorie A. Meyers, Scott Andrew Martin, Federal Public Defender‘s Office, Houston, TX, for Defendant-Appellant.
Before HIGGINBOTHAM, ELROD, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
Defendant-Appellant Ephesian Johnny Franklin pleaded guilty to being a felon in possession of a firearm. Franklin appeals the mental health program special condition of his supervised release. We VACATE the mental health program special condition and REMAND to the district court for resentencing.
I.
On October 8, 2014, a grand jury returned a one-count indictment charging Franklin with being a felon in possession of a firearm, in violation of
II.
“A defendant has a constitutional right to be present at sentencing.” United States v. Bigelow, 462 F.3d 378, 380-81 (5th Cir. 2006) (alteration omitted) (quoting United States v. Vega, 332 F.3d 849, 852 (5th Cir. 2003)). Accordingly, when a district court‘s written judgment conflicts with its oral pronouncement of the sentence, the oral pronouncement controls. See United States v. Torres-Aguilar, 352 F.3d 934, 935 (5th Cir. 2003). We normally review for abuse of discretion the imposition of a special condition of supervised release. United States v. Rodriguez, 558 F.3d 408, 412 (5th Cir. 2009). However, if a defendant fails to object to the special conditions when they are announced at sentencing, we review for plain error. See, e.g., United States v. Bishop, 603 F.3d 279, 280 (5th Cir. 2010);
Franklin asks us to apply the abuse of discretion standard of review, while the Government argues for plain error review.1 During sentencing, the district court provided the following oral pronouncement on mental health treatment: “And I‘m recommending mental health treatment if needed while in custody and after during supervised release.” The court‘s written judgment read, in relevant part: “The defendant is required to participate in a mental health program as deemed necessary and approved by the probation officer.” Here, as was the case in United States v. Lomas, 643 Fed.Appx. 319 (5th Cir. 2016) (unpublished), it is a close question whether the district court‘s oral pronouncement provided Franklin with the requisite “opportunity at sentencing to consider, comment on, or object to’ the version of the mental-health condition that the district court ultimately imposed.” Id. at 324 (quoting Bigelow, 462 F.3d at 381).
The district court stated that it was only “recommending mental health treatment if needed.” A recommendation is not a mandate, as the Government points out, and it is possible that this statement should have alerted Franklin to the possibility that the district court was leaving the decision of his mental-health treatment to the Probation Office. Yet, nowhere in the district court‘s oral pronouncement did it ever mention the Probation Office or a probation officer, much less define the probation officer‘s role as it did in its written judgment. As we said in Lomas, “it is hard to see how [Franklin] could have objected at sentencing to the wording of the condition—the basis of his challenge on appeal—when he did not encounter that wording until he received his written judgment.” Id.; see also Calhoun, 471 Fed. Appx. at 322-23. Further complicating our analysis, the phrase “if needed” in the district court‘s oral pronouncement could either modify “while in custody” only, or both “while in custody” and “after during supervised release.” In an abundance of caution, we will review Franklin‘s mental health special condition for abuse of discretion.
While probation officers have broad power “to manage aspects of sentences and to supervise probationers and persons on supervised release with respect to all conditions imposed by the court,” those powers are limited by Article III of
Without reaching Franklin‘s constitutional claim, we conclude—as we have in several similar cases—that the district court‘s “written judgment creates an ambiguity regarding whether the district court intended to delegate authority not only to implement treatment but to decide whether treatment was needed.” Calhoun, 471 Fed.Appx. at 323; see also, e.g., Lomas, 643 Fed.Appx. at 324-25; United States v. Turpin, 393 Fed.Appx. 172, 174 (5th Cir. 2010) (unpublished); United States v. Vasquez, 371 Fed.Appx. 541, 542-43 (5th Cir. 2010) (unpublished); United States v. Lopez-Muxtay, 344 Fed.Appx. 964, 965-66 (5th Cir. 2009) (unpublished).
For the aforementioned reasons, we VACATE the mental health program special condition and REMAND to the district court for resentencing,2 with the same clarifying instruction we offered in Lomas, 643 Fed.Appx. at 325 (quoting United States v. Peterson, 248 F.3d 79, 85 (2d Cir. 2001)):
If the district court intends that the therapy be mandatory but leaves a variety of details, including the selection of a therapy provider and schedule to the probation officer, such a condition of probation may be imposed. If, on the other hand, the court intends to leave the issue of the defendant‘s participation in therapy to the discretion of the probation officer, such a condition would constitute an impermissible delegation of judicial authority and should not be included.