Lead Opinion
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 ease has been before our court twice. During his most recent appeal, we
On August 2, 2006, Taylor entered an online chat room and began a conversation with “elliegirll234.” “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,
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,
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,
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
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,
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,
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.
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 provide just punishment for the offense; (3) the need for adequate deterrence; (4) the need to protect the public from further crimes of the defendant; and (5) the need to provide the defendant with treatment. 18 U.S.C. § 3563(b); see United States v. Angle,
1. Viewing or Accessing Adult Pornography
The first special condition of probation that Taylor challenges bars him from viewing adult pornography and from knowingly visiting any place where adult pornography is sold or available for viewing. The condition reads:
The defendant shall not knowingly view or listen to any form of pornography which contains adults engaging in sexual intercourse, oral sex, sex with objects or animals, acts of masturbation, or the lascivious exhibition of genitalia. Additionally, the defendant shall not knowingly patronize or visit any such establishment or internet site/location where the above materials are sold, or available for viewing.
This condition is not limited to child pornography, which is illegal to possess. Instead, it bars Taylor from accessing adult pornography that is otherwise legal. Cf. United States v. Cary,
“Adult pornography, unlike child pornography, enjoys First Amendment protection, and so we must be especially cautious when considering a ban on possessing adult pornography.” United States v. Shannon,
Taylor does not contend that the modified condition is vague. Indeed, the district court had modified the condition to alleviate vagueness concerns. As initially imposed, it had read: “The defendant shall not view or listen to any form of pornography, sexually stimulating material, or sexually oriented material or patronize locations where such material is available.” We also note here that while Taylor did not explicitly challenge that condition in his previous appeal, the government asserts to us that our review of Taylor’s appeal of the current condition is for abuse of discretion. So even were there an argument that our standard of review should be different because Taylor did not explicitly appeal the previous condition, the government has not made any such argument. Cf., e.g., United States v. Webster,
Taylor maintains that the condition is overbroad. It is true that both Taylor’s crime and adult pornography have to do with sexual activity. But there is no evidence that viewing or listening to adult pornography in any way led Taylor to commit the crime here, or has led him to commit any other crime, nor is there any evidence in the record that viewing or listening to adult pornography would make the repeat of Taylor’s crime or similar crimes any more likely. The district court also did not find that there was any relationship between Taylor’s viewing of adult pornography and the likelihood of recidivism. When the Third Circuit confronted a condition that banned adult pornography, and found that “nothing on this record suggests that sexually explicit material involving only adults contributed in any way to [the defendant’s] offense, nor is there any reason to believe that viewing such material would cause [the defendant] to reoffend,” that court vacated the condition. United States v. Voelker,
Here, the district court and government justify the ban on the basis that Taylor created adult pornography by masturbating in front of the web camera. In instituting the ban, the court said, “Taylor created pornography by sending videos of himself masturbating to a person he believed was a 13 year old girl, and requested that she engage in the same activity.” But the sexual images in this case, which were of Taylor himself, were not facilitated by or motivated by his access to adult pornography. And there is no suggestion that his offense had anything to do with his viewing of adult pornography. Again, there is no finding or suggestion in the record that Taylor would engage in similar conduct or reoffend if he simply viewed legal adult pornography, which is what the condition bars him from doing. See Shannon,
We are not saying a court could never impose a special condition prohibiting the possession of even legal adult pornography; there may be times when a sentencing court is justified in imposing such a condition. See Shannon,
2. Inspection of Internet-Capable Devices
The next condition Taylor challenges concerns the probation office’s ability to monitor his internet use. The condition provides:
The defendant may not use the internet to access social chat-rooms in which users conduct conversations with other third-party chatroom users. This does not include informational chats used by websites to provide customer service or answers to frequently asked questions. Prior to accessing an internet capable device, the defendant shall provide notice to the probation department of the type and location of such device. To verify compliance with this condition, upon request, the defendant shall make available for inspection by the probation department, any such internet capable device.
Taylor proposed the first two sentences in his request for modification, so any challenge to that part of the special condition is waived. See United States v. Mantas,
We disagree. While Taylor argues that there is no evidence that he has used as a computer to access illegal material, he used his computer to commit the offense in question. Specifically, while on his computer, he accessed an online chat room and then transferred obscene material to someone he thought was under the age of sixteen. As the district court stated, “Taylor’s conviction stems entirely from his conduct on a computer.”
The nature of Taylor’s offense means that the district court did not abuse its discretion when it imposed a condition that allows the probation department to check Taylor’s internet-capable devices even without reasonable suspicion. See Kappes, 782 F.3d at 863 (allowing court to impose condition allowing periodic, unannounced inspection of computer and internet-capable devices where defendant had thousands of images of child pornography on his computer). That Taylor’s crime was solely the result of his activity on a computer makes his case materially different from our decision in Goodwin,
We have cautioned, however, against the imposition of overly broad search conditions as conditions of supervised release or probation. See United States v. Farmer,
3. Direct Contact with Minors
Taylor also challenges a third special condition, this one concerning contact with persons under the age of 18. It reads:
The defendant shall have no knowing direct contact with a person under the age of 18, no indirect contact with a person under the age of 18 through another person or through a device (including a telephone, computer, radio, or other means) and the defendant must reasonably avoid and remove himself from situations in which he would have any other form of contact with a minor. The defendant shall not be in any area in which persons under the age of 18 are likely to congregate, such as school grounds, child care centers, sport centers for youth sports, or playgrounds.
We disagree with the suggestion that no ban is necessary because the conduct took place in 2006, and, according to Taylor, there is no evidence of any present risk to minors. The record reflects that in addition to the conduct for which he was convicted, Taylor contemplated meeting what he thought to be a thirteen-year-old girl in person. Fear of arrest, transportation logistics, and the uncertainty of whether the girl would have sexual intercourse with him meant that Taylor did not set up a meeting in this case, but his statements in the internet chatroom suggest that he would have been open to meeting if transportation could be arranged. Some restriction on contact with minors while Taylor was on probation for this offense was justified.
That said, the special condition imposed here is quite broad and, indeed, broader upon modification than at its initial imposition. As initially imposed on August 15, 2012, the special condition of probation concerning contact with minors had included the sentence, “This provision does not encompass persons under the age of 18 with whom the defendant must deal in order to obtain ordinary and usual commercial services.”
After the district court issued the modification order in this case, we expressed concerns about another similar broad no-contact-with-minors condition. We said in United States v.
As written, the condition is too broad and is an abuse of discretion. We are already remanding Taylor’s case in light of another condition, and on remand the district court should reinstitute the normal commercial business exception, the removal of which appears to be an oversight. Other circuits have ruled that associational conditions of probation and supervised release do not apply to casual, chance, or inadvertent meetings. See United States v. MacMillen,
Taylor has not suggested to us or to the district court any specific family members or children of friends with whom he wishes to have contact. In light of the soon-coming end to Taylor’s probation and the remand we are already ordering, if Taylor has specific minor family members with whom he seeks contact, he may ask the court to modify this condition, and the court can consider his request. See Kap-pes,
Finally, we note that Taylor did not raise in his opening brief a vagueness or other specific challenge to the condition’s bar on being “in any area in which persons
III. CONCLUSION
Taylor’s sentence is VaCated and his case is Remanded for further proceedings consistent with this opinion.
Notes
. Circuit Rule 57 of the United States Court of Appeals for the Seventh Circuit provides: A party who during the pendency of an appeal has filed a motion under Fed. R. Civ. 60(a) or 60(b), or any other rule that permits the modification of a final judgment, should request the district court to indicate whether it is inclined to grant the motion. If the district court so indicates, this court will remand the case for the purpose of modifying the judgment. A party dissatisfied with the judgment as modified must file a fresh notice of appeal.
. The complete special condition as initially imposed read:
The defendant shall not frequent places where children under the age of 18 congregate, nor associate or have verbal, written, telephonic, or electronic communication with any person under the age of 18, without the permission of the probation officer. This provision does not encompass persons under the age of 18 with whom the defendant must deal in order to obtain ordinary and usual commercial services.
Concurrence Opinion
concurring.
I join my colleagues’ opinion but add a' few words about jurisdiction.
The district court modified the terms of Taylor’s probation while his direct appeal was pending in this court. Apart from any questions about jurisdiction, that was imprudent. Taylor was challenging both his conviction and his sentence, and one aspect of this court’s decision concerned a term of probation. United States v. Taylor, 777 F.3d 434, 442-44 (7th Cir.2015). Only one court at a time should address a subject; parallel litigation adds needless complications. Altering a judgment that is on appeal creates the prospect of wasting the district judge’s time, the appellate judges’ time, or both.
I agree with my colleagues that, under United States v. Ramer,
The statute governing probation, 18 U.S.C. § 3563(c), says the same thing as § 3583(e)(2), so Ramer logically covers probation as well as supervised release. But I do not find Ramer persuasive. It does not consider the possibility that “at any time” refers to how long after a judgment a court may act, rather than which court has authority to act.
Before the Sentencing Reform Act of 1984, district courts could modify sentences long after they had been imposed. See, e.g., United States v. Addonizio,
To say that the 14-day limit does not apply to probation and supervised release is not at all to say that a district court may act while the same judgment is being contested on appeal. Nothing in the text of
The panel in Ramer did not discuss the difference between timing rules and jurisdictional rules, and that omission is understandable. The parties had not discussed jurisdiction in their briefs; the panel did so on its own, without calling for submissions from the parties. The parties have not briefed jurisdiction in this appeal either. And United States v. D’Amario,
Nor did Ramer discuss the effect of its holding on other rules and statutes that allow a district court to modify a judgment. Take Fed.R.Civ.P. 60(b), some parts of which allow a judgment to be modified years after its entry. Or take Fed.R.Crim.P. 12(b)(2) and Fed.R.Civ.P. 12(h), both of which say that a district court may dismiss a case “at any time” after concluding that subject-matter jurisdiction is missing. The civil and criminal rules contain many more “any time” references. (The phrase “at any time” appears 14 times in the criminal rules and 19 times in the civil rules.)
I had supposed, until Ramer, that such rules do not affect the allocation of jurisdiction between trial and appellate courts. Indeed, one of the “at any time” references appears in Fed.R.Crim.P. 36, which we held in McHugh does not permit a district court to act while an appeal on the same subject is pending. Ramer upsets this understanding, though perhaps accidentally. It does not discuss any of these rules and, though it cites McHugh, does not recognize that McHugh concerns an “at any time” clause. So although I am content to follow Ramer today, I do not view the issue as closed. We appear to have an intra-circuit conflict that needs a fresh look with the benefit of briefs.
Concurrence Opinion
concurring in part and dissenting in part.
I agree with my colleagues: (a) that the district court had jurisdiction to decide whether to modify Taylor’s conditions of probation, at least under 18 U.S.C. § 3563(c) and United States v. Ramer,
When first setting conditions of probation for an offender, a district court exer
Taylor argues now, and my colleagues agree, that the adult pornography prohibition must be removed entirely. As all acknowledge, our review of the district court’s actions is only for abuse of discretion, e.g., United States v. Serrapio,
I see no abuse of discretion here. First, I am not persuaded that Taylor had a right to have the district court start over from scratch on whether the condition should be imposed at all. When it was imposed in 2012, there was no objection or appeal. While the district court had the power to revisit the question, I do not see a duty to do so, except to the extent the terms of the condition were sharpened to comply with our intervening case law.
As for whether the adult pornography condition should have been imposed in the first place, there is empirical evidence weighing both for and against imposing such a condition on an offender like Taylor. See United States v. Siegel,
Surely the district court’s discretion is especially broad when addressing an offender’s motion to remove entirely an existing condition of probation he had not previously challenged. Neither Adkins nor this offender’s motion required the district judge to revisit on the offender’s demand the question whether to impose any restriction at all on his access to adult pornography. I would affirm the decision to deny the removal of the modified condition as well within the court’s discretion.