UNITED STATES OF AMERICA v. ROBERT DALE ELLIS
No. 19-4159
United States Court of Appeals for the Fourth Circuit
January 8, 2021
PUBLISHED
Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Martin K. Reidinger, Chief District Judge. (1:15-cr-00016-MR-WCM-1)
Argued: October 30, 2020
Decided: January 8, 2021
Before GREGORY, Chief Judge, FLOYD, and QUATTLEBAUM, Circuit Judges.
Reversed and vacated and remanded with instructions by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Floyd and Judge Quattlebaum joined. Judge Quattlebaum wrote a concurring opinion.
ARGUED: Melissa Susanne Baldwin, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: Anthony Martinez, Federal Public Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. R. Andrew Murray, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
Robert Ellis has been in and out of federal prison since 2013. Mr. Ellis initially served fifteen months in prison for failing to register as a sex offender. Afterwards, he struggled to comply with the conditions of his supervised release. As a result of his violations, Mr. Ellis served additional prison terms of ten months, nine months, and eleven months. In the intervening periods, Mr. Ellis struggled with homelessness and mental health challenges.
Mr. Ellis‘s underlying sex offense convictions related to the possession of child pornography. He also admitted to watching adult pornography on the internet. On that basis, the government argued for special conditions of release banning Mr. Ellis from possessing pornography or accessing the internet. The district court ultimately imposed those conditions. We find, on this record, the conditions banning legal pornography and internet access cannot be sustained as “reasonably related” under
I.
In 2013, Mr. Ellis pled guilty to a single federal charge of failing to register as a sex offender. Federal law required Mr. Ellis to register based on child pornography convictions under North Carolina law from 2005 and 2006. Thе district court sentenced Mr. Ellis to fifteen months of imprisonment and a five-year term of supervised release with the standard sex offense conditions. He was released from prison in June 2014. Before long, Mr. Ellis began to run into difficulties complying with the conditions of his release.
First, in March 2015, Mr. Ellis‘s probation officer petitioned for two months of home detention, granted by the district court, because Mr. Ellis travelled outside the district without permission. Then, before that term could be completed, the probation officer petitioned to terminate home detention because Mr. Ellis had become homeless. He was granted permission
In August 2015, Mr. Ellis began residing at a reentry center, which was intended to assist with housing and employment opportunities. But, according to the probation officer, upon arrival Mr. Ellis “was not willing to comply with the rules and directives of thе [center] and was discharged.” J.A. 40. So-called “second chance funds” were obtained to provide Mr. Ellis with emergency housing in a hotel. He moved from hotel to hotel through November, exhausting the funds available to him. At that point, Mr. Ellis was admitted to a hospital for a mental health evaluation.
Upon his release in December 2015, Mr. Ellis began residing at the reentry center again and initially participated in outpatient mental health treatment. After a few weeks, however, Mr. Ellis called a crisis hotline and stated that he was thinking of harming himself. This resulted in overnight observation at an in-patient facility. The next day, the director of the reentry center discharged Mr. Ellis because the facility “was inadequate to meet [his] mental health needs.” J.A. 43. Mr. Ellis was evaluated for treatment at a mental health residential center but was not admitted beyond the day. It is unclear where Mr. Ellis resided for the next several months. The final petition to modify his release stated only that he did “not have a stable residence” and that GPS location monitoring was necessary “to ensure his whereabouts [were] known” to the probation officer. Id.
In August 2016, the probation officer filed a petition for revocation of supervised release, alleging ten violations. The violations were largely based on the conduct that gave rise to previous modification petitions, including Mr. Ellis‘s unauthorized travel and lack of cooperation with his treatment programs. Based on an agreement with the government, Mr. Ellis admitted six of the violations and the remaining four were dismissed.1 The district court granted the petition and sentenced Mr. Ellis to ten months of imprisonment followed by a new five-year term of supervised release.
Mr. Ellis served the new prison sentence and then attempted to comply with the conditions of his release, including his mental health and sex offender treatment. But in April 2018, his probation officer again moved for revocation of supervised release, alleging three violations. Mr. Ellis reached another agreement with the government, admitting to two violations while the third charge was dismissed.2 This time, the violations flowed from a polygraph exam during Mr. Ellis‘s sex offender treatment evaluation. Mr. Ellis initially lied when asked about his pornography use and then admitted to the lie after the exam. The
district court granted the petition and sentenced Mr. Ellis to nine
The district court also considered several special conditions of release requested by Mr. Ellis‘s probation officer and argued for by the government. Two of the special conditions, relevant here, were “[t]hat he have no Internet access” and “that he shall not possess any legal or illegal pornographic material, nor shall he enter any location where such materials can be accessed, obtained, or viewed, including pictures, photographs, books, writings, drawings, videos, or video games.” J.A. 77. The government argued that the pornography restriction “would be what some would call witting ‘mere occasions of sin,‘” and that Mr. Ellis “should not do anything where he could be put in the position to be tempted to violate the conditions of his release.” J.A. 77-78. Similarly, regarding the internet ban, the government argued that “[i]t is extremely easy, even if you‘re just Googling or checking baseball scores, if you have a predilection for that . . . it‘s very easy to, thеn, lapse into improper things. So, again, I think that would be important to keep him from relapsing.” Id.
Mr. Ellis‘s attorney, who learned of the special conditions request during the proceeding, challenged the conditions as overbroad. The pornography restriction “would prohibit him from going into libraries, bookstores, and convenience stores.” J.A. 78-79. And the internet ban would create unnecessary difficulty “in accessing information as well as accessing potential job opportunities.” J.A. 79. Mr. Ellis also spoke of his concerns regarding the internet ban, stating, “I have money issues right now. . . . I have to have the ability to get a way to check my e-mails” and to use a ride-share application to search for
employment. J.A. 82-83. The district court ultimately imposed the pornography ban, without the locational component, but not the internet ban.
Onсe again, Mr. Ellis served the new term of incarceration and then began serving the new term of supervised release. And, once again, his probation officer petitioned to revoke release several months later. The petition charged seven violations, including a failure to comply with GPS monitoring and required treatment programs and dishonesty with the probation officer. Mr. Ellis reached another agreement with the government, admitting five of the charges in exchange for dismissal of the remainder.3 The district court sentenced Mr. Ellis to eleven months of imprisonment followed by yet another five-year term of supervised release.
The government requested the same special conditions banning internet and pornography access. Mr. Ellis objected to both conditions. He argued that an internet ban would make it “virtually impossiblе” to reenter society and that no evidence was presented by the government linking the internet or pornography to the violative conduct. J.A. 116-18. The government responded that the restrictions were appropriate “just based on the underlying charges and . . . the violations.” J.A. 118.
This time, the court overruled Mr. Ellis‘s objections entirely. It found the conditions
Mr. Ellis filed a timely appeal, challenging the special conditions.
II.
We review the imposition of special conditions of supervised release for abuse of discretion. United States v. Van Donk, 961 F.3d 314, 321 (4th Cir. 2020). The district court abuses its discretion “by definition” when it makes an error of law. Id. (quoting In re Grand Jury Subpoena, 870 F.3d 312, 316 (4th Cir. 2017)).
A sentencing court must craft conditions of supervised release that comply with the requirements listed in
[a] deprivation of liberty than is reasonably necessary” to achieve those statutory goals; and (3) consistent with any relevant policy statements issued by the Sentencing Commission. See
Mr. Ellis argues that the pornography and internet bans violate
A.
We recently addressed the rules for restricting access to pornography during supervised release in Van Donk. 961 F.3d at 322-23. On the one hand, courts have “upheld bans on adult pornography where a treatment provider testified that sexually stimulating images could cause the defendant to revert to accessing child pornography.” Id. at 322. On the other hand, courts have “struck down such conditions when they were
unaccompanied by individualized
Applying that rule, Van Donk upheld the pornography restriction at issue. Id. at 323. The district court relied on testimony from a treatment provider explaining the ban‘s individualized connection to the defendant‘s treatment and recidivation risk. Id. Based on “her nearly thirty years of experience as a sex-offender treatment provider and her extensive dealings with [the defendant],” the treatment provider explained that “her pornography ban [was] meant to keep [the defendant] from recidivating and to treat his pornography addiction.” Id. Therefore, the district court made a reasonable finding, supported by the evidence, that the “restriction on sexually stimulating material was necessary to treat [the defendant‘s] addiction and to deter him from future crimes.” Id. And, the district court adequately “explained its finding at length in a written order and at multiple hearings.” Id.
Here, by contrast, the pornography restriction was inadequately supported and explained. The district court found that the ban was justified because Mr. Ellis had resisted his treatment programs and lied about viewing legal pornography. But the district court heard no evidence about how that pornography use may or may not influence Mr. Ellis‘s behavior. The government put forward no individualized evidence linking pornography to Mr. Ellis‘s criminal conduct or rehabilitation and recidivation risk.5 There was no testimony from a witness responsible for Mr. Ellis‘s treatment, as in Van Donk.6 The
some, it must be supported by individualized evidence to meet
The government‘s primary response on appeal is that the district court adequately justified the pornography restriction as an incentive for Mr. Ellis‘s compliance with treatment. But a court cannot impose a special condition of supervised release on that basis; rather, doing so amounts to an abuse of discretion. See United States v. Crandon, 173 F.3d 122, 128 (3d Cir. 1999) (explaining that conditions that restrict fundamental rights are permissible when “directly related to deterring [the defendant] and protecting the public“)7 (emphasis added); cf. Van Donk, 361 F.3d at 322 (“Treatment providers shouldn‘t be able to compel patients to do things wholly unrelated to the purposes of supervised release—e.g., learn to ride a unicycle—under threat of the court revoking the patient‘s release.“). Nothing in
acceptable basis for release conditions. See
Here, Mr. Ellis violated his release by travelling outside the judicial district without permission, skipping therapy appointments, and lying to his probation officer, among other similar violative conduct. Pornography use was not the basis of any violation. Mr. Ellis did lie about watching pornography during a polygraph exam at the outset of his sex offender treatment. But there the violative conduct was dishonesty, not pornography consumption. And the government did not otherwise establish that pornography use was, in fact, a barrier to Mr. Ellis‘s rehabilitation. Thus—however obvious the government believes the connection to be—the district court‘s restriction of that activity solely to incentivize compliance with other release conditions was as arbitrary as restricting a defendant‘s television-viewing or video game-playing for the same reason. Cf. United States v. Taylor, 796 F.3d 788, 793 (7th Cir. 2015) (“It is true that [the defendant‘s] crime and adult pornography have to do with sexual activity. But there is no evidence that . . . adult pornography in any way led [the defendant] to commit the crime here, or . . . would make the repeat of [his] crime . . . more likely.“).
possessing adult pornography.“). But in that case, we held that the restriction of some protected materials, alone, did not render the pornography restriction at issue overbroad. Van Donk, 961 F.3d at 326-27.
Here, however, the restrictiveness of the condition goes beyond the extent of the materials covered. The district court also imposed a locational restriction, forbidding Mr. Ellis from “enter[ing] any location where such [pornographic] materials“—including “pictures, photographs, books, writings, drawings, videos, or video games“—could “be accessed, obtained, or viewed.” Under the parties’ stipulated construction of “pornography,” the term covers any “visual depiction involv[ing] . . . a [person] engaging in sexually explicit conduct,” which includes “actual or simulated sexual intercourse,” “masturbation,” or “exhibition of the anus, genitals, or pubic area.” See
From its plain text, the restriction covers many bookstores, gas stations, museums, and art galleries. See United States v. Gnirke, 775 F.3d 1155, 1162 (9th Cir. 2015) (“[M]ost places selling or renting DVDs—including local libraries—will stock materials containing depictions of adult sexual acts or lascivious displays of nudity.“). While the possession component restricts Mr. Ellis from viewing many movies and shows, as in Van Donk, the locational component restricts Mr. Ellis from even entering the movie theater. See id. at 1164-65 (“This part of [the defendant‘s] condition vastly expands its scope. . . . [The defendant] is also severely restricted in where he may shop, acquire information, and view art or entertainment.“). Indeed, the prohibition could be read to cover any location that
allows access to a device that can browse the web, extending its reach to universities and schools, hotels and electronics stores, and presumably the homes of Ellis‘s friends and family. See United States v. Adkins, 743 F.3d 176, 194 (7th Cir. 2014) (“Read literally, this provision might preclude [the defendant] from using a computer or entering a library . . . because both are ‘locations’ where [pornography] is available.“). Such a severe deprivation of freedom is unnecessary to prevent any purported temptation towards viewing child pornography or to otherwise further rehabilitation.
The government does not dispute that the condition has this effect. Rather, it argues the narrowing construction of the term “pornography” is a sufficient constraint and that the restriction is otherwise justified: “Although the condition would prohibit Ellis from entering a location where ‘books’ or ‘writings’ are found that contain pornographic visual depictions, the limitation to ‘pornographic material’ ensures that it does not extend broadly to all written literature.” But the locational component ensures that this distinction makes little difference. While Mr. Ellis is not banned from possessing the entire literary canon, the government overlooks that he cannot enter the libraries аnd bookstores where such materials are available alongside, say, certain R-Rated DVDs. See Gnirke, 775 F.3d at 1164-65; Adkins, 743 F.3d at 194. Surely the district court could have tailored a restraint that more specifically targets the places where, and methods by which, “pornographic materials” can be accessed. Therefore, even by the government‘s understanding, the locational restriction deprives Mr. Ellis of more liberty than is reasonably necessary to prevent him from accessing the materials that are intended to be restricted.
Ultimately, on this record, the district court‘s ban on legal pornography cannot be sustained as “reasonably related” under
B.
The parties raise many of the same arguments regarding the condition prohibiting Mr. Ellis from accessing the internet. Mr. Ellis argues that there is no evidence linking the offense of conviction, his past crimеs, or his rehabilitation to internet use. And, he contends that a total ban on internet access deprives him of more liberty than is reasonably necessary, given the vital importance of the internet to everyday life. The government provides the same arguments as those made regarding the pornography restriction; an internet ban meets
We first conclude that an outright ban on Mr. Ellis‘s internet access cannot be sustained under
United States v. Ramos, 763 F.3d 45, 61-62 (1st Cir. 2014); United States v. Baker, 755 F.3d 515, 525-26 (7th Cir. 2014); United States v. Burroughs, 613 F.3d 233, 242-43 (D.C. Cir. 2010).9
In this case, there is nо evidence connecting the internet to any criminal conduct.
for every defendant convicted of a sex оffense against a minor, we think the Sentencing Guidelines would say so.“).
To rebut this conclusion, the government points to Mr. Ellis‘s prior child pornography convictions. But there is no evidence in the record linking the internet to the criminal conduct underlying those convictions. In 2005 and 2006, Mr. Ellis was convicted of second-degree and third-degree sexual exploitation of a minor under North Carolina law. Those offenses penalized the possession of child pornography,
Presumably, those crimes often involve the internet, but could just as well be carried out on a computer without using the internet, via text message on a cell phone, or with a Xerox machine—not to mention the analog possibilities. Therefore, even though Mr. Ellis was convicted of crimes that are often carried out online, those convictions alone do not justify an internet ban under
The government‘s remaining arguments fail for the same reasons discussed above as to the pornography restriction. Mr. Ellis did violate his supervised release by initially lying about watching pornograрhy online on an unauthorized device. But the violative conduct was Mr. Ellis‘s dishonesty, not his internet use. Indeed, the conduct Mr. Ellis admitted to was not illegal. See, e.g., Ramos, 763 F.3d at 63 (finding that the government‘s effort to “fill the void of justification” for an internet ban by “not[ing] that [the defendant] admitted to looking at adult pornography” still “ignore[s] the absence of evidence of [the defendant] using a computer or the internet ... for illegal purposes“). The government did not establish that legal pornography is an obstacle to Mr. Ellis‘s rehabilitation or poses a risk of recidivism, let alone that banning access to the internet entirely was necessary to prevent its consumption. And incentivizing cooperation with treatment is an unacceptable basis for the restriction absent some direct relation to the
Furthermore, the internet restriction is overbroad. The “reasonably necessary” requirement of
liberty. Cf. Packingham v. North Carolina, --- U.S. ---, 137 S. Ct. 1730, 1737-38 (2017) (finding a First Amendment interest in access to social media websites—only a subset of the internet‘s offerings—as “the principal sources for knowing current events, checking ads fоr employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge“); United States v. LaCoste, 821 F.3d 1187, 1191 (9th Cir. 2016) (explaining that the internet is “vital for a wide range of routine activities in today‘s world,” including “finding and applying for work, obtaining government services, engaging in commerce, communicating with friends and family, and gathering information on just about anything, to take but a few examples,” such that “[c]utting off all access to the Internet constrains a defendant‘s freedom in ways that make it difficult to participate fully in society and the economy“); see also United States v. Voelker, 489 F.3d 139, 145 (3d Cir. 2007) (“The ubiquitous presence of the internet and the all-encompassing nature of the information it contains are too obvious to require extensive citation or discussion.“).
Given the breadth of such a condition, and the vast liberty it deprives, it will rarely be the “least restrictive аlternative.” See United States v. Holm, 326 F.3d 872, 878 (7th Cir. 2003) (finding other restrictions available that “might provide a middle ground between the need to ensure that [the defendant] never again uses the Worldwide Web for illegal purposes and the need to allow him to function in the modern world“). For example—if supported by the evidence—a sentencing court could restrict a defendant from using the internet to access “chat rooms, peer-to-peer file-sharing services, and any site where [they] could interact with a child.” United States v. Holena, 906, F.3d 288, 293 (3d Cir. 2018).
Similarly, if justified, a court could bar a defendant from accessing websites with pornographic content, enforcing the rule with monitoring software and computer inspections. See, e.g., Holm, 326 F.3d at 879 (finding that the district court could “fashion precise restrictions that protect the child-victims used in Internet pornography and at the same time reflect the realities of [the defendant‘s] rehabilitation prospects” given that the court “already imposed ... random searches of his computer and residence” and “a variety of filtering software is now available” that “is becoming ever more effective“); United States v. Sofsky, 287 F.3d 122, 126-27 (2d Cir. 2002) (“[A] more focused restriction, limited to pornography sites and images, can be enforced by unannounced examinations of material stored on [the defendant‘s] hard drive or removable disks.“).
For these reasons, the majority of circuits have held that a complete ban on
on their face, without any evidence that the underlying conduct—or any other illegal conduct by Mr. Ellis—involved the internet. Applying the above principles, it is unclear whether any internet restriction could be established as “reasonably necessary” on such a record, let alone a complete ban. Therefore, the internet ban imposed by the district court is overbroad under
While the district court acknowledged that an internet ban would be “a great inconvenience,” it nevertheless imposed the condition to induce Mr. Ellis‘s compliance with treatment. J.A. 119. But an internet ban implicates fundamental rights, which is more than merely inconvenient. See, e.g., Eaglin, 913 F.3d at 96 (citing Packingham, 137 S. Ct. at 1737-38) (“[The defendant] has a First Amendment right to be able to email, blog, and discuss the issues of the day on the Internet while he is on supervised release.“). Such a vast deprivation demands adequate justification. See id. Encouraging Mr. Ellis‘s cоoperation does not authorize the district court to impose a punitive restriction.
Moreover, as a practical matter, the internet is likely to be vital to Mr. Ellis‘s reentry to society, including for securing housing and employment. See id. (“[O]ne of the conditions of supervised release is that [the defendant] remain employed: to search for a job in 2019, the Internet is nearly essential[.]“). Indeed, Mr. Ellis told the district court that he relies on internet-based apps on his smartphone to look for jobs and commute to work. In Perazza-Mercado, the Third Circuit found that a total ban on the defendant‘s internet “any access whatsoever to the internet” would “overreach[]” because it would “bar [the defendant] from using a computer at a library to do any research, get a weather forecast, or read a newspaper online“).
access at home was “inconsistent with the voсational and educational goals of supervised release” because it would “prevent[] him from engaging in the kind of educational and vocational training required for the transition from his prior employment as a teacher into a new and appropriate career.” 553 F.3d at 72. The same inconsistency is present here, as to an even more sweeping restriction. See id. Thus, while the district court was concerned with ensuring Mr. Ellis‘s treatment, an internet ban may be as likely to hinder Mr. Ellis‘s progress as to help it.
Because the internet restriction is not “reasonably related” and “reasonably necessary” under
For the foregoing reasons, we conclude that the district court abused its discretion in imposing an outright ban on internet access and on possessing legal pornography or entering any location where it may be accessed. We vacate the judgment and remand for the entry of a modified judgment striking those conditions of supervised release.
REVERSED AND VACATED AND REMANDED WITH INSTRUCTIONS
QUATTLEBAUM, Circuit Judge, concurring in the judgment:
I concur in most of the majority opinion. For the reasons ably set forth by Chief Judge Gregory, I agree that the pornography and internet bans here involve a greater liberty deprivation than is reasonably necessary to deter Ellis from committing crimes, to protect the public or to effectively treat Ellis. On that basis alone, we must vacate the judgment and remand for the entry of a modified judgment striking those conditions of supervised release.
However, the majority also concludes the bans were not reasonably related to Ellis’ history and treatment under
To explain, I review the procedural background. From the beginning, Ellis admitted “a sеrious pornography and sex addiction.” J.A. 133. At his first revocation hearing, Ellis admitted to resisting compliance with his sex offender and mental health treatment. Part of that resistance stemmed from Ellis’ addiction. Ellis refused to give up his smartphone for residential treatment because it was an essential means to further his addiction.* The government found large amounts of pornography in his possession on multiple occasions, and at one point it discovered that Ellis had been communicating with a young boy through a social media application. The district court imposed a tailored prohibition of internet-
connected devices and social media without approval from the Probation Office. But Ellis also violated these conditions, using an unauthorized device to view pornography daily and lying about it during a polygraph examinаtion.
At his second revocation hearing, the government requested a comprehensive internet and pornography ban during Ellis’ next supervised release. The district court declined to impose an internet ban, this time prohibiting Ellis from “access[ing], view[ing] or possess[ing] any legal or illegal pornographic materials.” J.A. 95. Thus, after Ellis’ second violation, the court broadened the restriction but did not impose an internet ban as the government requested. But once again, Ellis failed to comply with these conditions. Among his five violations justifying the third revocation of his supervised release was, yet again, failure to comply with his sex offender treatment requirements.
Thus, the district court at each revocation hearing utilized more restrictive conditions, after first rejecting the government‘s request to impose the restrictions we now must address. Unfortunately, over and over, Ellis violated those conditions. In the end, the district court, seeking to impose special conditions to ensure Ellis received
in the most effective manner.”
Last, while I agree that United States v. Van Donk, 961 F.3d 314 (4th Cir. 2020) provides helpful guidance аbout restricting access to pornography through supervised release conditions, I am leery about placing too much emphasis on one fact in that case. As the majority notes, supportive of our affirmance was a treatment provider‘s testimony connecting the pornography ban to the addiction treatment and risk of repeat criminal offenses. Id. at 323. But Van Donk does not categorically require such testimony. That holding does not preclude a pornography ban without testimony from a treatment provider so long as “the record supports such a finding.” Id. at 322. Here, the record amply supports a relationship between the ban and Ellis’ history and treatment.