Case Information
*1 Before: KEITH and SUTTON, Circuit Judges; BLACK, District Judge. [*] _________________
COUNSEL ARGUED: Laura E. Davis, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee, for Appellant. Luke A. McLaurin, UNITED STATES ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee. ON BRIEF: Laura E. Davis, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee, for Appellant. Luke A. McLaurin, Matthew T. Morris, UNITED STATES ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee. _________________
OPINION
_________________
SUTTON, Circuit Judge. Robert Shultz, who stands convicted of receiving and possessing child pornography, appeals from the district court’s imposition of two special conditions of supervised release. We affirm.
I.
Over a span of three or four years, Shultz downloaded hundreds of images and dozens of videos of child pornography. Some files depicted children as young as six; many showed sadistic, masochistic or violent behavior. Shultz used file-sharing software to make some of his pornography available for others to download.
In 2010, Shultz pled guilty to receiving child pornography, 18 U.S.C.
§ 2252A(a)(2)(A), and to possessing child pornography, 18 U.S.C. § 2252A(a)(5)(B).
The district court sentenced Shultz to 171 months in prison followed by lifetime
supervised release subject to a series of special conditions. Shultz appealed, claiming
that the district court improperly lengthened his prison term in order to promote his
rehabilitation. We agreed,
see Tapia v. United States
,
Shultz appeals once more. He now challenges two of the district court’s twelve conditions of supervised release: condition four, which restricts his contact with children, and condition six, which restricts his possession of sexually arousing material.
II.
The government says that Shultz forfeited his challenge to the supervised release
conditions because he did not argue the point in his first appeal. But when Shultz
objected to these conditions during his re-sentencing, the government said nothing about
forfeiture in response. Shultz may have forfeited his challenge, but if so the government
forfeited the forfeiture.
See United States v. Turner
,
III.
Condition four reads: “[Shultz] shall not associate and/or be alone with children under 18 years of age, nor shall he be at any residence where children under the age of 18 are residing, without the prior written approval of the probation officer. In addition, [Shultz] shall not visit, frequent, or remain about any place where children under the age of 18 normally congregate (public parks, playgrounds, etc.) or any business that caters to and/or targets child customers.” R. 39 at 5. Shultz says the condition violates (1) the sentencing statute, (2) the Article III non-delegation doctrine, (3) his First Amendment rights of association and assembly, (4) the Fifth Amendment prohibition against vague laws and (5) his right to interact with his own family. All five arguments fail.
18 U.S.C. § 3583(d). Shultz complains that condition four oversteps two limits established by the sentencing statute. One, a condition of supervised release must be “reasonably related” to various sentencing factors, including the nature of the offense and the characteristics of the defendant. 18 U.S.C. § 3583(d)(1). And two, a condition must involve “no greater deprivation of liberty than is reasonably necessary” to deter crime, protect the public and rehabilitate the defendant. Id. § 3583(d)(2).
In view of the district court’s front-row seat at the proceedings and its sentencing
experience, we generally respect its imposition of supervised-release conditions in the
absence of an abuse of discretion.
United States v. Alexander
,
We also must respect the policy choices Congress made when it adopted the supervised release statute. In the main, Congress authorized only short terms of supervised release. For class A felonies, the most serious category of federal offenses, a supervised release term ordinarily may not exceed five years. 18 U.S.C. § 3583(b)(1). Child pornography crimes fall into a discrete group of offenses in which Congress went further, mandating a minimum supervised release term of five years and authorizing a maximum term of life. Id. § 3583(k). This does not mean anything goes when a defendant is convicted of a child pornography offense, but it does suggest that Congress saw a grave danger to public safety from known users of child pornography, beyond the danger posed by a run-of-the-mine felon.
In view of Congress’s general judgment that child pornography offenses deserve
strict conditions of supervised release and the district court’s particular judgment that
rigor was warranted in the case at hand, Shultz cannot prevail.
Cf. United States v.
Buchanan
,
Nor was the possibility of assault remote. Many of his files depicted sadistic, masochistic or otherwise violent abuse of children. And Shultz had a propensity for violence. He has one conviction for domestic assault and one for aggravated assault. In the latter case, he “pinned [his wife] down in the bathroom, where he repeatedly banged her head on the floor while holding her down. [She] then attempted to flee the residence, only to be grabbed and slung into a wall, causing further bodily injury . . . .” PSR 12.
Condition four reasonably responds to these reasonable concerns and complies with § 3583(d) in doing so. The district court, to begin, did not go astray in requiring Shultz to receive his probation officer’s written approval before associating with, being alone with or being in the same residence as a child. The probation officer is well placed to assess whether Shultz poses a danger to a particular child, making it reasonable to entrust him with responsibility for deciding whether the child would be safe when left in Shultz’s company. See, e.g. , United States v. Mickelson , 433 F.3d 1050, 1057 (8th Cir. 2006) (upholding similar condition).
Nor did the district court commit reversible error in prohibiting Shultz from
going near “any place where children . . . normally congregate . . . or any business that
caters to [or] targets child customers.” The prohibition is strict but for good reason. A
sexual predator near a park or a playground puts at risk not just one or two children but
a lot of them. Beyond that, children at such locations are often unattended, exposing
them to heightened risks of assault. The numerosity and heightened vulnerability of
potential victims at these places made it proper for the district court to bar Shultz from
frequenting them. It was also proper for the district court to adopt a categorical
restriction upon Shultz’s movement, as opposed to one that leaves matters to the
discretion of the probation officer. An officer can make an individualized assessment
of the risk Shultz poses to a potential victim when Shultz interacts with one child or even
with a small group of children; not so, or at least less so, when the potential victims are
the juvenile general public. No abuse of discretion occurred.
See, e.g.
,
United States v.
Lewis
,
In response to all this, Shultz says that severe restrictions upon a convict’s
movement or association with children are never reasonable when the convict “only”
received or possessed child pornography. Something more, he says, is required, such
as physical abuse of children. But in this case, there
is
something more: Shultz’s multi-
year history of collecting pornography; the size of his collection; his files’ depiction of
adults having sexual intercourse with children; their depiction of sadism, masochism and
violence; and Shultz’s prior assault convictions. Shultz may not yet have attacked a
minor, but a sex offender does not get one free pass at child molestation before
prophylactic
rules of supervised release designed to protect children become appropriate.
See, e.g.
,
United States v. Zobel
,
Article III non-delegation doctrine.
The Constitution vests the “judicial power
of the United States” in the federal courts, and they may not hand that power over to
executive officials. U.S. Const. art. III, § 1;
see United States v. Logins
, 503 F. App’x
345, 349 (6th Cir. 2012);
Whitehead v. United States
,
Some federal appellate courts might well conclude that condition four violates
Article III.
See United States v. Voelker
,
First Amendment right to associate with children. Shultz next argues that condition four violates his constitutional right to associate and assemble with children. First things first, however: “[I]t is impossible to determine whether a [condition] reaches too far without first knowing what the [condition] covers.” United States v. Williams 553 U.S. 285, 293 (2008). Noting that condition four says that Shultz “shall not associate” with a child unless he gets his probation officer’s approval, Shultz argues that the ban extends to “telephonic or written” communication with minors.
True, “associate” is a word of many meanings, and some of them would cover
merely talking to or even joining the same political party as a child. But in the context
of condition four, to “associate” with a child means only to keep company with him.
First
, this interpretation gives “associate” a natural, though not its only, definition.
See
Webster’s Second New International Dictionary
167 (1953) (defining “associate” to
mean “to accompany; keep company with”).
Second
, words draw meaning from their
neighbors. Every other type of conduct prohibited by condition four—to “be alone” with
children, to “be at any residence” where children reside and to “visit, frequent, or remain
about” any place children congregate—involves physical proximity with children.
Context suggests that this common thread runs through the ban on association as well.
Third
, our interpretation is consistent with
Arciniega v. Freeman
,
Interpreted this way, the prohibition upon “associat[ing]” with minors does not
violate Shultz’s First Amendment rights. “[W]e have approved supervised release
conditions affecting constitutional rights so long as they were directly related to the
defendant’s rehabilitation and the protection of the public.”
United States v. Nixon
Fifth Amendment void for vagueness.
Judges imposing supervised release
conditions, no less than legislatures passing statutes, must obey the prohibition against
vague laws embedded in the Fifth Amendment’s Due Process Clause. Shultz thinks
condition four’s restriction upon “associat[ing]” with minors transgresses this principle.
But a condition, no less than a statute, need not spell out every one of its applications.
It need only fix “an ascertainable standard of guilt.”
United States v. L. Cohen Grocery
Co.
,
Shultz also perceives unconstitutional vagueness in condition four’s failure to list
all of the places from which Shultz is forbidden, noting that it refers to “any place where
children . . . normally congregate (public parks, playgrounds, etc.).” This argument
collides with
United States v. Zobel
, which upheld a comparable condition banning
“loitering where minors congregate, such as playgrounds, arcades, amusement parks,
recreation parks, sporting events, shopping malls, swimming pools, etc.”
Right to associate with family.
The Constitution protects a parent’s right to raise
his children.
See Troxel v. Granville
,
No less significantly, the conditions of supervised release kick in only when
Shultz’s 14-year term of imprisonment ends—and by that time all of Shultz’s children
will be adults, beyond condition four’s reach. Shultz’s objection thus concerns only
hypothetical children and grandchildren not yet in being. Potential future descendants
may suffice to invalidate a contingent remainder under the rule against perpetuities, but
they do not suffice to invalidate a condition of supervised release under § 3583(d).
See Lewis
,
IV.
Condition six reads: “[Shultz] shall not possess any material, such as printed photographs, paintings, recorded material, or electronically produced material that he may use for the purpose of deviant sexual arousal. Nor shall he visit, frequent, or remain about any place where such material is available to him for the purpose of deviant sexual arousal.” R. 39 at 5. Shultz says this condition violates (1) the sentencing statute, (2) his First Amendment right to receive speech and (3) the Fifth Amendment prohibition against vague laws.
Before turning to the specifics of Shultz’s arguments, a few observations are in
order. Few things tax legal drafting so much—or so well vindicate Madison’s
observation that “no language is so copious as to supply words and phrases for every
complex idea, or so correct as not to include many equivocally denoting different ideas,”
The Federalist
, No. 37, at 236 (Jacob Cooke ed. 1961)—as writing rules about sexual
speech. The legislative branch is well acquainted with the problem. Overbreadth or
vagueness in Congress’s attempts to regulate speech about sex has often compelled a
return to the drawing board.
See, e.g.
,
United States v. Stevens
,
It is well to keep these difficulties in mind when reviewing supervised release
conditions, which, when done wisely, benefit criminal defendants and the public alike
by facilitating sooner rather than later re-entry into society. The conditions as a result
should “be written—and must be read—in a commonsense way.”
United States v.
Phipps
,
At the same time, we cannot hide from insisting on narrower supervised release
conditions when necessary or construing such conditions narrowly when appropriate.
In this last respect, supervised release conditions differ from statutes. Some caution is
required when offering a limiting construction to an act of Congress, lest we “substitute
the judicial for the legislative department of government.”
United States v. Reese
That leads to a third observation. Courts would do well to show restraint in
entertaining facial challenges to conditions of supervised release. In this setting, the
usual justifications for allowing facial challenges lose much of their force. The
defendant’s own freedom of speech will rarely justify invalidating a condition on its
face; a convict out on supervised release enjoys weaker First Amendment rights than the
ordinary citizen.
See Nixon
,
By contrast, the costs of entertaining facial challenges remain high; indeed, they get worse. Facial challenges encourage courts to adjudicate cases on the basis of hypothetical applications of the condition’s language that may or may not come to pass. Making matters worse, most supervised release conditions will not become relevant for many years, in this case 14 years. Much can happen during a prison term, and much of it may support a modification to the conditions of supervised release when the sentence ends. See 18 U.S.C. § 3583(e)(2) (allowing courts to “modify, reduce, or enlarge the conditions of supervised release” if appropriate). Far better, it seems to us, to deal with borderline or uncertain supervised release conditions by urging the defendant to seek a modification as the date for release approaches, as opposing to sparring about close calls a decade before they become relevant.
With these observations in mind, we turn to Shultz’s objections to condition six. 18 U.S.C. § 3583(d) and First Amendment. Shultz argues that condition six
abridges the freedom of speech and involves a “greater deprivation of liberty than is
reasonably necessary” to achieve the purposes of supervised release. 18 U.S.C.
§ 3583(d)(2). As Shultz reads the condition, it has no limits, as he might use almost
anything—say a description of sex in a science textbook or a photograph of a clothed
child—for titillation. That broad reading of the provision might indeed create problems,
both under the sentencing statute and the First Amendment.
See Zobel
,
Yet a fairer, more common sense reading of condition six exists—that it covers
only material
designed
(in a reasonably objective sense) to produce deviant sexual
arousal. So interpreted, the condition may stand. It is reasonable to prevent Shultz from
possessing material whose purpose is the provocation of his sexual interest in children.
By stimulating the sexual impulses that led Shultz to download child pornography in the
first place, this material both threatens public safety and hinders Shultz’s rehabilitation.
The restriction at hand thus takes away only as much liberty as “is reasonably necessary”
under the circumstances. 18 U.S.C. § 3583(d)(2). For similar reasons, condition six
complies on its face with the First Amendment. As we have explained, supervised
release conditions pass constitutional inspection “so long as they [are] directly related
to the defendant’s rehabilitation and the protection of the public.”
Nixon
,
Fifth Amendment void for vagueness.
Shultz argues that condition six’s use of
the word “deviant” makes it impermissibly vague. That is not an inconsequential
argument.
Cf. Brown v. Entm’t Merchs. Ass’n
,
V.
For these reasons, we affirm.
Notes
[*] The Honorable Timothy S. Black, United States District Judge for the Southern District of Ohio, sitting by designation. 1