*1 byprod- to be the supposed are Opinions But do disputes.
ucts of real defendants lines. argument along these
not make open, remain so a court
Nor did their offer true) (as may be say
could not well A currently dispute.
there is no sum reasonably equ- be
fleeting offer could not days long compensation. to full Is
ated How
enough for an offer’s consideration? these situations
a court should deal with day, when the
can be left for another addressed them.
parties have All denying court’s order
The district to intervene is af-
American’s motion court’s
firmed. certify it declines to
affirmed to the extent respect Chap-
a class but vacated claim, and the case is re- personal
man’s the merits of that
manded for decision on
claim. America,
UNITED STATES
Plaintiff-Appellee,
Jeffrey TAYLOR, P. Defendant-
Appellant.
No. 14-3790. Appeals,
United States Court of
Seventh Circuit.
Argued May 2015. Aug.
Decided *2 Bella,
Daniel L. Attorney, Office Hammond, United States Attorney, IN, for Plaintiff-Appellee. Prasad,
Viniyanka Attorney, Indiana Defenders, Inc., Federal Community Ham- mond, IN, Defendant-Appellant. EASTERBROOK, WILLIAMS, Before HAMILTON, Judges. circuit WILLIAMS, Judge. Circuit Jeffrey Taylor appeals several conditions of the he received sexually after his explicit displays on a web camera and conversations in an internet chatroom thought with what he to be a thirteen-year-old girl. agree him with that the record support does not a ban on viewing legal adult pornography. Adult pornography did not facilitate or lead to Taylor’s here, offense and there is no evi- dence or finding viewing otherwise legal pornography would increase the like- lihood he would recidivate. In of his computer attempt use to contact a however, young teenage girl, we affirm the imposition of a condition requires Taylor to make his internet-capable de- inspection, vices available for even without suspicion reasonable that he has com- mitted a Finally, agree new crime. we that the conditions as currently overly worded contain an broad complete ban on knowing contact with mi- nors.
I. BACKGROUND Taylor’s ease been before our court During appeal, twice. his most recent Tay- under that statute. United Taylor’s conduct as offense summarized lor, 259-60 follows: charged Taylor for government then 2, 2006, Taylor entered August On statute, a different same conduct under began a conversa- online chat room punishes this time 18 U.S.C. identi- “elliegirll234.” “Ellie” tion with *3 transfer of ob- attempted transfer or from the 13-year-old girl a fied herself as age under the person material to a Taylor responded scene Lafayette, Indiana. a means of inter- Logansport. years through and from that he was 37 of sixteen graph- Taylor quickly jury became A found The conversation commerce. state physique his and Taylor ic as described of three and he received a sentence guilty, in sex- engaged (The Ellie had asked whether judge recognized years probation. Taylor boyfriend. ual acts with her already more than Taylor served masturbate in to see Ellie [] wanted custody overturned years in on the four webcam; her wheth- front of a he asked conviction, the United which exceeded webcam, a but she indicated er she had Sentencing Guidelines’ recommen- Taylor then turned on that she did not. conviction.) The dis- dation for the new in front of and masturbated his webcam final on Au- trict court entered that Ellie could see. it so 15, gust on and Ellie conversed online Taylor Taylor appeal filed his notice of the next next two multiple occasions over the 25, 2014, day. September while On always were
weeks. The conversations appeal pending, was he filed motion ask- August 14 the sexual in nature. On court to the condi- ing the district arranging turned to conversation probation. of his The district tions Taylor meeting person, asked part part and denied granted hap- what would Ellie to fantasize about in an order dated December request Taylor expressed if the two met. pen day, Taylor filed a notice 2014. That same meeting person some concern about court’s order modi- appeal of the district (In jail.” go he “could because fying conditions. About conversation, he had referred earlier later, upheld Taylor’s conviction month “jailbait.”) During Ellie as this online Taylor, appeal. United States chat, Taylor masturbated second time (7th Cir.2015). Taylor contests F.3d 434 that Ellie in front of his webcam so appeal in this certain could see. in the December 2014 order imposed 13-year-old girl but an Ellie was not proba- the conditions of his that modified identity by law-enforce- online assumed tion. working joint on a fed- personnel ment child sting operation targeting eral-state II. ANALYSIS investigators sex offenders. One Modify Special A. Jurisdiction picture used a of herself from when she ' Conditions chat- help 15 or 16 to create the profile. room question An initial is whether the 434, United States jurisdiction to enter the district court had (7th Cir.2015). Tay modifying 2014 order December Because the conditions of lor’s Taylor violating
juryA convicted order came after district court’s 2422(b), although we overturned criminal appeal of his filed his notice his con- appeal that conviction on because conviction, might one wonder whether activity” “sexual duct did not constitute authority modify court had the amended its judgment to condition Taylor’s probation the conditions of as it payment defendant’s restitution obli- Griggs did. See v. Provident Consumer gation on the ability defendant’s pay. Disc., Co., 56, 58, 459 U.S. 103 S.Ct. Id. (1982) curiam) (“The (per L.Ed.2d question Our first was whether the of a filing appeal notice of is an event of jurisdiction district court had to revise the
jurisdictional significance
juris-
confers
—it
judgment since the
already
defendant had
appeals
diction on the court of
and divests
filed his notice of appeal.
recognized
district court
of its control over those
that ordinarily, filing a
notice of
aspects of the
ap-
case involved in the
means the district
longer
court no
peal.”).
government
both
jurisdiction.
(citing
Id.
United States v.
position during
took the
briefing that the
Brown,
Cir.2013)
*4
732 F.3d
787
authority, by
district court had the
virtue
and United States v. McHugh, 528 F.3d
3563(c),
§
modify Taylor’s
18 U.S.C.
to
(7th
538,
Cir.2008)).
540
But
recog
we
probation
conditions of
though
even
exceptions.
nized there are
(collecting
Id.
appeal of his conviction
pending
was
our
cases). We assessed whether another ex
Nonetheless,
court.
we must fulfill our
ception
general
to the
rule existed in 18
independent obligation to ensure that fed-
3583(e)(2),
§
U.S.C.
provides
which
subject-matter
eral courts
jurisdic-
have
reduce,
district courts
“modify,
or
throughout
tion
the proceedings.
See
enlarge the
supervised
conditions of
re
Beard,
288,
United States v.
745 F.3d
291
lease,
any
at
prior
expiration
time
to the
(7th Cir.2014).
termination of the term of supervised re
issue,
3563(c),
§
statute at
18 U.S.C.
lease.” Id. Consistent with the First Cir
provides that
may modify,
court
re-
“[t]he
cuit’s decision in United States v. D’Amar
duce, or enlarge the
of a
sen-
io,
(1st Cir.2005),
Procedure
lacks
that the district court
for relief
tions
proba
condition of
The first
pending
of a
authority
grant
because
challenges bars him from
tion that
(in
context, the rule is
the civil
and from know
viewing
pornography
adult
62.1), as
Rule of Civil Procedure
Federal
por
adult
visiting any place where
ingly
In
as our Circuit Rule 57.1
well
viewing.
or available
nography is sold
*5
in Ramer
the district
our decision
reads:
The condition
the modi-
authority
the
to make
court had
view
knowingly
shall not
The defendant
did,
request
Rule 57
fication it
no Circuit
any
pornography
to
form of
or listen
was needed here.
engaging
adults
sexual
which contains
intercourse,
sex,
objects
sex with
or
oral
Challenges
Special
B.
Conditions
masturbation,
animals,
or the
acts of
of Probation
genitalia. Addi-
exhibition of
lascivious
jurisdic
that there is no
Satisfied
shall not know-
tionally, the defendant
we turn
impediment
proceeding,
tional
any
or visit
such estab-
ingly patronize
of
three
to the
internet
where
lishment or
site/location
challenges. Special conditions
sold,
materials are
or available
the above
reasonably related to
must be
viewing.
for
(1)
offense, history, and
the defendant’s
por-
not limited to child
This condition is
(2)
characteristics;
the
the need to reflect
In-
illegal
possess.
nography, which is
offense,
respect
the
promote
seriousness of
stead,
accessing
it
from
adult
bars
law,
just
provide
punishment
the
and
legal.
that is otherwise
pornography
(3)
offense;
adequate
the need for
for the
Cf.
775 F.3d
Cary,
United States
(4)
deterrence;
the
protect
the need to
(7th Cir.2015)
im-
(discussing condition
of the defen
from further crimes
public
defendant,
regis-
failed to
upon
who
(5)
posed
dant;
provide
need to
and
offender,
viewing “illegal
from
ter as a sex
treatment.
18 U.S.C.
defendant with
prohib-
it
noting
did
3563(b);
pornography”
Angle,
States v.
see United
grant motion.
whether it is inclined
of the United States Court
1. Circuit Rule 57
indicates,
provides:
Appeals
Circuit
for the Seventh
the district court so
If
purpose
for the
will remand the case
during
pendency of an
party
A
who
judgment.
party
Fed. R. Civ.
A
dissatis-
modifying
has filed a motion under
60(a)
60(b),
per-
any
rule that
or
or
other
must file
as modified
fied with the
judgment,
of a final
mits the modification
appeal.
a fresh notice of
request
to indicate
the district court
should
here,
viewing legal
pornogra-
it him from
adult
commit the crime
or has led him to
phy).
crime,
any
commit
other
nor
any
is there
evidence in the record that viewing or
pornography,
“Adult
unlike child
listening to adult pornography would make
pornography,
enjoys First Amendment
repeat
Taylor’s
crime or similar
protection,
especially
so we must be
any
crimes
likely.
more
The district court
considering
cautious when
a ban on pos
also did not
any
find
there was
rela
sessing
pornography.”
adult
United
tionship
Taylor’s
between
viewing of adult
(7th
Shannon,
States
743 F.3d
pornography and the likelihood of
Cir.2014).
recidi
occasions,
On several
we have
vism. When the Third Circuit confronted
banning
vacated conditions
a defendant
a condition that banned adult pornogra
viewing sexually explicit
from
in
materials
phy, and found that “nothing on this rec
only
volving
they
adults because
were too
suggests
sexually
ord
explicit material
See,
vague
e.g.,
or overbroad.
United
involving only adults
Adkins,
(7th
contributed in
Taylor maintains that the condition is vagueness in concerns and because overbroad. It is true Taylor’s that both “sentencing the court point any- crime and adult did not pornography have to do activity. thing suggesting viewing with sexual the record that But there is no evi- that viewing listening sexually explicit involving only dence material adult pornography any way Taylor reoffend”); led adults would cause Shannon to (7th Cir.2001). Perazza-Mercado, 274 F.3d state, Cir.2009) (“[T]he (1st that the condition imposi- proposed also possession of adult officer has reasonable probation ban on the “If the
tion the as a condition of pornography to believe that defendant suspicion and with- release, chatroom, explanation without probation a social accessed record, con- in the basis apparent out to the defendant’s may have access officer plain”). an error that is stitutes verify compliance computer personal court The district with this Condition.” a court could never saying are not We Taylor renews language, and rejected this prohibiting condition impose special a a argument probation that his pornogra- legal adult of even possession to access only be allowed officer should times when a sentenc- there be phy; computer upon a reason- imposing Taylor’s personal such justified in ing court is Shannon, at 502 had violated suspicion See condition. able cases). however, Here, the rec- a crime. (collecting or committed condition result, As justify not ban. ord does Taylor argues While disagree. its discre- the district abused we find that he has used as is no evidence there and, condition, imposed it tion when material, illegal he to access computer Circuit did with like the Third commit the computer his offense used Voelker, we vacate this condition com- while on question. Specifically, Taylor’s probation. condition chat room and an online puter, he accessed material to some- then obscene transferred Inspection of Internet- age of six- thought was under the one he Capable Devices stated, “Tay- teen. As the district Taylor chal next condition entirely from his stems lor’s conviction abili concerns the office’s lenges computer.” conduct on internet use. The condi ty to monitor his means Taylor’s offense The nature provides: tion not its court did abuse the district may not use the internet The defendant imposed it condition discretion when in which chat-rooms to access social to check probation department allows with other conduct conversations users internet-capable devices even Taylor’s does chatroom users. This third-party suspicion. Kappes, See without reasonable used include informational chats impose (allowing court to service or provide websites to customer *7 allowing periodic, unannounced condition questions. frequently to asked answers internet-capa computer and inspection of capable an accessing internet Prior had thou device, no- where defendant provide the defendant shall ble devices on department of the child probation images pornography to the sands of of tice To of such device. was Taylor’s and location That crime type computer). condition, verify compliance with this on com activity of his a solely the result make the shall upon request, defendant materially different his case puter makes by probation inspection for the available Goodwin, from our decision capable any such internet department, There we struck points. he device. monitoring computer down internet there was no evi condition where search the first sentences proposed two Taylor any role computer played dence that modification, any chal- so request in his and no indi convictions in the defendant’s special condition lenge part Mantas, computer he had used cation that is See United waived. means) oppo- commit crime. Id. at 523. The other and the defendant must site is true here. reasonably avoid and remove himself from situations in which he would have cautioned, however, against We have the form other of contact with a minor. imposition overly broad search condi- The defendant shall not in any be area as supervised tions conditions of release or in which under persons age the of 18 are Farmer, See United States v. likely to congregate, Cir.2014); such as Goodwin, school grounds, Farmer, centers, child F.3d at 523. In care recognized sport cen- 3583(d)(3) youth sports, that 18 ters for provides that a or playgrounds. order as a per- condition for a We disagree with the suggestion that no required son register under the Sex ban is necessary because the conduct took Registration Offender and Notification Act place and, according person that the person, proper- submit his there is no evidence of any present risk to ty, and other computer, by items to search minors. The record reflects that in addi- a probation officer “with suspi- reasonable tion to the conduct for which he was con- cion concerning a violation of victed, Taylor contemplated what meeting ” person.... unlawful conduct Tay- he thought to be a thirteen-year-old girl in lor’s that, condition is even broader than person. arrest, Fear transportation lo- as no suspicion reasonable is required. gistics, and uncertainty of whether the importance, reiterate sen- when girl would have sexual with intercourse tencing courts consider special imposing him meant that did not up set one, like condition this that such “broad case, meeting in this but his statements in search authority” and seizure be “connect- chatroom suggest internet that he offense, ed to [the history, defendant’s] would have open been to meeting if trans- personal Goodwin, characteristics.” portation arranged. could be Some re- In light of the nature of striction on contact with Tay- minors while offense, Taylor’s we find the authority was lor was on for this offense sufficiently here, connected uphold and we justified. special condition. said, That imposed condition 3. Direct Contact with Minors and, here quite indeed, broad broader upon than also modification at its initial challenges spe imposi- a third condition, cial tion. initially imposed this one As concerning August contact persons with age under the of 18. It condition of reads: concerning contact with minors had includ- sentence, ed the provision “This defendant shall does not have knowing no encompass persons
direct contact with under person age under the age no indirect whom the defendant contact with a must deal person age under the order to through ordinary an- obtain and usual com- (in- person other or through a mercial device services.”2 The modified condi- *8 cluding a telephone, radio, computer, issue, however, or tion at does not. complete special 2. The initially condition any person as with age under the of with- imposed read: permission out the of the officer. provision frequent encompass The defendant This places persons shall not does not age age where children congre- under the of 18 under the of 18 with whom the defen- gate, verbal, written, nor associate or ordinary have dant deal must in order to obtain telephonic, or electronic communication and usual commercial services. 796 (2d MacMillen, 76 Cir. 544 written, special condi- the currently
As 2008); Loy, 237 F.3d the States v. to United any exceptions not contain tion does (3d Cir.2001); Arciniega v. contact also “knowing see having any direct on bar 4, 4, age Freeman, of 18.” While under the S.Ct. person a 404 U.S. with curiam). final (1971) the suggests Depend that government (per the L.Ed.2d 126 (the in areas where being circumstances, on might sentence bar rule we ing on the limits the congregate) likely to minors are his Taylor said to violate way if that plain sentence, not how the that is first we things of the doing one probation for reads. condition language true, It is also Thompson. in discussed sentence, Rather, its abso- first with the deliber defendant] “should though, [a that mi- with any knowing contact lute bar on contacts, they would ately seek out such nors, stands alone. ‘unavoidable’ and to ‘casual’ or cease be scope.” the modi- the condition’s court issued fall within the district would After case, expressed excep in explicit order at 269. An Loy, 237 F.3d fication broad no- another similar inci about and concerns of unintentional tion for instances said in condition. We contact-with-minors things make clearer. contact would dental Thompson, F.3d at 859. On remand Kappes, 782 Cf. “ ‘contact,’ Cir.2015), being that in mind our court can also bear the district undefined, mean to could be understood on concerning bans Kappes discussion waitress, by paying cash- being served minor as contact with males non-incidental (a stranger) at a ier, girl next to a sitting females, there was no evi where well as girl asking game, replying baseball the defendants was that either of dence directions,.or baby being shown friend’s bisexual, concerns raised as baby, for matter.” his own girl—or at overbroad. Id. 859- they whether were situations, Taylor he in of these Were “knowing having to be would seem to us or Taylor suggested not has 18” that person contact with a under direct family members specific barred his conditions is of friends with whom he wishes or children that,- that a suggested later condition light In of the soon- have contact. here, included ex- bar the absolute unlike Taylor’s probation and coming end mi- for contact with non-related ceptions if already ordering, are remand we commercial in the course of normal nors family minor members specific business, ap- in the of an adult presence contact, he ask whom he seeks and in other cases by probation, proved condition, modify this and court to contact, could or incidental unintentional request. Kap- See court can his consider at Kappes, 782 F.3d 859-60. upheld. be (stating pes, written, condition is too broad As right to familial association violation of We are is an abuse of discretion. and twenty-year light sen- yet ripe not remanding Taylor’s already case petition could stating defendant tence and condition, the dis- remand another family if he or mem- court modification the normal court should reinstitute trict children); minor ber had exception, the remov- business commercial 3583(e)(2). oversight. to be appears al of which did Finally, we note circuits have ruled associational Other vagueness or opening brief raise re- challenge to condition’s casual, chance, specific other apply do not lease *9 persons “in area in which being on States bar meetings. See United inadvertent
797
age
likely
congre-
under the
of 18 are
control over
aspects
those
of the case in-
gate,
as
grounds,
such
school
child care
volved in
appeal”);
United States v.
centers, sport
youth sports,
centers for
(7th
McHugh,
798 take entry. Or after its years modified 3583(e)(2) juris 3563(c) speaks §or
§
12(b)(2)
Fed.R.Civ.P.
and
that
diction,
Court insists
Fed.R.Crim.P.
Supreme
and the
say that a district
jurisdic
12(h),
in
out
be set
both
jurisdictional rules
any
for action
“at
time”
time
a case
about
dismiss
tional terms. Rules
court
v.
juris-
Eberhart
jurisdiction.
subject-matter
See
concluding
not affect
do
after
403,
12,
States,
126 S.Ct.
546 U.S.
and criminal
missing. The civil
United
is
diction
(2005) (holding this about
L.Ed.2d 14
“any
163
time” refer-
many more
rules contain
also,
see
particular);
in33
Fed.R.Crim.P.
(The
any
appears
time”
“at
phrase
ences.
—Wong,
Fun
v. Kwai
e.g.,
States
United
19 times
and
in the criminal rules
14 times
1625,
533
U.S.-,
191 L.Ed.2d
135 S.Ct.
rules.)
civil
in the
562 U.S.
(2015);
v.
Henderson
Shinseki
Ramer, that such
until
supposed,
I had
1197,
159
179 L.Ed.2d
428, 131 S.Ct.
juris-
the allocation
not affect
rules do
States, 560 U.S.
(2011);
v. United
Dolan
courts.
appellate
trial and
diction between
2533,
108
177 L.Ed.2d
605, 130 S.Ct.
refer-
Indeed,
“at
time”
one
(The
this norm
(2010).
exceptions to
rare
36, which
in Fed.R.Crim.P.
appears
ences
R.
practice. See John
on historical
rest
permit
not
McHugh
in
held
does
States, 552
v. United
& Gravel Co.
Sand
appeal
an
on the
to act while
district
750,
591
169 L.Ed.2d
U.S.
S.Ct.
upsets
Ramer
subject
pending.
is
same
Russell,
(2008);
v.
U.S.
Bowles
acci-
understanding,
perhaps
though
this
(2007). A
168 L.Ed.2d
127 S.Ct.
these
It does not discuss
dentally.
modify terms
authority to
court’s
district
and,
McHugh, does
though it cites
rules
does
pending
is
appeal
an
of release while
an
McHugh concerns
recognize
not
prac
support of established
not have the
I am
although
time” clause. So
“at
tice.)
I
not
today,
Ramer
do
to follow
content
in Ramer did
discuss
panel
The
appear
as closed. We
view the issue
juris-
timing rules and
between
difference
that needs
intra-circuit conflict
have an
rules,
under-
that omission is
and
dictional
of briefs.
with the benefit
fresh look
had not
parties
discussed
standable. The
briefs;
did
panel
in their
jurisdiction
HAMILTON,
concurring
Judge,
Circuit
own,
calling for submis-
without
so on its
dissenting
part.
part
and
have
parties
The
parties.
from the
sions
(a) that the
my colleagues:
agree
I
with
ei-
jurisdiction
this
not briefed
to decide
jurisdiction
district
D’Amario, 412
And
ther.
conditions of
modify Taylor’s
whether
(1st Cir.2005),
fol-
which Ramer
F.3d 253
18 U.S.C.
least under
probation,
lowed,
cases
Eberhart
other
preceded
Ramer,
3563(c)
and United States
timing
distinguish
the last decade
(b)
(7th Cir.2015);
that the condi-
F.3d 837
(DAmaño
jurisdictional rules.
rules from
of internet-
inspection
tion of
about
pre-2005 decisions
also did not cite
(c)
appropriate;
capable devices
begins
modern doctrine
topic.
with minors
on contact
that the condition
Airlines, Inc.,
World
Zipes v. Trans
dissent,
I respectfully
needs correction.
71 L.Ed.2d
U.S.
102 S.Ct.
majority
however,
II-B-1 of the
from Part
(1982).)
restricting
vacating the condition
opinion
its
discuss
effect
Nor did Ramer
legal adult
to otherwise
Taylor’s access
rules and statutes
holding on other
pornography.
judg-
court to
a district
allow
proba-
setting
first
60(b),
When
some
Take Fed.R.Civ.P.
ment.
offender, a
court exer-
tion for
to be
allow
parts of which
*11
sentencing
its
cises
discretion. When the
lor. See United
Siegel,
States v.
753 F.3d
imposed
district
here first
(7th
conditions 705,
Cir.2014).
The district court
Taylor,
he
did not even recognized this uncertainty and discussed
to appeal
bother
them. See United States Siegel.
end,
In the
the court decided to
(7th Cir.2015)
(10th Cir.2014), the same standard we ap-
ply more often to decisions on whether to
modify conditions release.
E.g., Neal, United States v. 662 F.3d (7th Cir.2011); United States v. Ev- America, UNITED STATES of ans, Plaintiff-Appellee, I see no abuse of First, discretion here. I persuaded am not had a WITZLIB, Bodie B. Defendant-
right to have the start over Appellant. from scratch on whether the condition imposed should be at all. When it was No. 15-1115. imposed objection there nowas appeal. United States Court of Appeals, While the district court had the power to revisit question, I Seventh Circuit. do not see so, duty except do to the extent the July Submitted 2015. terms of the condition sharpened were Aug. Decided comply with our intervening case law.
As for whether the adult pornography
condition should have imposed in been place,
first empirical there is evidence both
weighing against for and imposing
such a condition on an Tay- offender like