UNITED STATES of America, Plaintiff-Appellee, v. Francisco L. MATTESON, Defendant-Appellant.
No. 08-2176.
United States Court of Appeals, Tenth Circuit.
May 19, 2009.
791
NEIL M. GORSUCH, Circuit Judge.
Laura Fashing, Fred Joseph Federici, III, Office of the United States Attorney, Albuquerque, NM, for Plaintiff-Appellee. Michael A. Keefe, Office of the Federal Public Defender, Albuquerque, NM, for Defendant-Appellant. Before BRISCOE, EBEL, and GORSUCH, Circuit Judges.
NEIL M. GORSUCH, Circuit Judge.
In May 2005, New Mеxico authorities arrested Francisco Matteson for defrauding various banks. Mr. Matteson admits that he stole mail in order to obtain personal information and bank account numbers belonging to at least eighty-nine people. Using this stolen information along with his personal computer and other equipment рerhaps belonging to another individual, Mr. Matteson produced counterfeit checks that he sold for cash. Under an agreement with the government, Mr. Matteson pled guilty to one count of possession of stolen mail,
This appeal concerns one of the special conditions of supervised release imposed by the district cоurt. The district court is invested with broad discretion to prescribe such conditions, subject to the limitations imposed by law, including
In our case, the challenged condition provides that
[t]he defendant shall consent, at the direction of the United States Probation Officer, to having installed on his/her computer(s), any hardware or software systems to monitor his/her computer use. The defendant understands that the software may record any and all activity on his/her computer, including the capture of keystrokes, application information, Internet use history, e-mail correspondence, and chаt conversations. Monitoring will occur on a random and/or regular basis. The defendant further understands that he/she will warn others of the existence of the monitоring software placed on his/her computer or any such computer [to which] the defendant may have access.
D. Ct. Judgment at 4 (emphasis added).
Before us, Mr. Matteson argues that this condition is problematic in two respects. First, he claims that the condition (in particular, the italicized language) is impermissibly vague. Second, he cоntends that the level of monitoring authorized (down to the last keystroke) is too intrusive to comply with
In this case, however, the government has commendably conceded Mr. Matteson‘s first, vаgueness argument. In light of this concession, “the question of whether we apply plain error review” with respect to that argument is not “trigger[ed].” United States v. White, 244 F.3d 1199, 1207 n. 11 (10th Cir. 2001). As counsel for the government rightly pointed out in a letter to us, it is unclear from the terms of the district court‘s condition whether that court intended to authorize the government to mоnitor not just Mr. Matteson‘s computer, but also any other computer to which he might have access. The first part of the district court‘s condition authorizes monitoring only on “his[ ] computer(s).” By contrast, the last sentence of the court‘s condition imposes an obligation on Mr. Matteson to “warn others” that the monitoring software has been placed on his computer “or any such computer [to which] the defendant may have access.” As the government acknоwledges, it is possible that the district court did not mean to require monitoring of any computers beyond those owned by Mr. Matteson. See United States’ Letter of Mаrch 19, 2009, at 2. But it is also possible that the district court intended in the final words of the condition to expand the number of monitored computers. Indeed, the government submits this is the more plausible reading of the district court‘s intentions for two reasons: first, the alternative renders the last eleven words of the special conditiоn superfluous; second, the evidence in this case suggested a need to encompass more than just computers belonging to Mr. Matteson because he “committed the offense using both his own computer and a borrowed computer.” Id. In any event, both sides before us agree a remand is necessary to clear this up.
While conceding Mr. Matteson‘s first argument about the vagueness of the district court‘s condition, the government nonetheless urges us to reject Mr. Matteson‘s second argument, at least in part. Specifically, the government asks us to affirm keystroke monitoring of those computers owned by Mr. Matteson, arguing that such a requirement would not offend
We think the better course in this partiсular case is to defer resolution of this question until after remand. It may be that the district court wishes keystroke monitoring to apply only to computers owned by Mr. Matteson, while other computers Mr. Matteson uses (such as those owned by an employer) are subject either to no monitoring at all or to some оther, less intrusive and as yet unspecified form of monitoring. But, again, it could be the intent of the condition to require keystroke monitoring of all computers Mr. Mattesоn uses, not just those he owns. And it is difficult to evaluate the propriety of the district court‘s keystroke monitoring requirement as a whole without first knowing to which computеrs it pertains; what might be sustainable in isolation might become unsustainable when the condition is viewed as a whole. Underscoring this is the fact that the government itself hаs suggested not only that the district court most likely wished its condition to apply to any computer Mr. Matteson might access, but also that, if the keystroke monitoring rеquirement does pertain so broadly, it is “too broad” for us to sustain. United States’ Letter of March 19, 2009, at 2. Rather than evaluating this case piecemeal, аnd doing so based on hunches about the district court‘s intentions and what might ultimately prove sustainable, we believe the district court should have a chance in the first instance to think comprehensively about which conditions it wishes to impose, if any, on which computers. After the district court‘s evaluation, the case may look very different than our assumptions now suggest.
Our decision to wait for the district court‘s evaluation in the first instance is also influenced by the fact that determining thе boundaries of permissible computer monitoring has vexed several of our sister circuits, and our circuit has not yet issued comparable guidance. Cоmpare United States v. Sales, 476 F.3d 732, 737-38 (9th Cir. 2007) (vacating computer monitoring as not narrowly tailored); United States v. Lifshitz, 369 F.3d 173, 192-93 (2d Cir. 2004) (vacating and remanding computer monitoring condition to permit district court to evaluate potential overbreadth in the first instance), with United States v. Goddard, 537 F.3d 1087, 1090-91 (9th Cir. 2008) (monitoring condition valid if narrowly construed); United States v. Holm, 326 F.3d 872, 879 (7th Cir. 2003) (random searches of probationer‘s computer “entirely reasonable“). Before weighing in on this weighty subject for the first time, we would no doubt benefit not just from а clearer understanding of what we are being asked to review, but also from the district court‘s considered views on how its conditions mesh with and are tailored tо both
The challenged condition of supervised release requiring computer monitoring is vacated in its entirety, and the case is remanded for further proceedings consistent with this order.
NEIL M. GORSUCH
CIRCUIT JUDGE