Tenth Restricts Conditions That Can Be Placed On Supervised Release Conditions

U.S. v. Mike, 2011 WL 538867 (2/17/11) (Published) - Some important restrictions placed on supervised release conditions in sex offender and other cases. First, the 10th shoots down a ripeness argument. Supervised release terms are directly appealable even though they are subject to later modification. A d. ct. may not delegate to the probation officer the decision whether to require a defendant to do anything that affects a significant liberty interest, such as in this case inpatient treatment or undergoing penile plethysmographic testing or taking psychotropic drugs. And any such imposition by the d. ct. must be supported by particularized findings. Also, the d. ct. erred when it failed to make the required occupational-restriction findings to justify prohibiting the defendant from having a job with access to children, requiring him to notify potential employers or educational programs of his criminal convictions and possibly restricting the defendant's use of the computers of the defendant's employer. The condition requiring avoiding direct and indirect contact with minors should be read to exclude chance or incidental encounters with children. On the other hand, it was okay for the d. ct. to impose computer monitoring conditions based on a general sex-offender rationale, even though the defendant was not convicted of a sex offense and had no history of using computers abusively. The results of previous psychological evaluations were problematic, The defendant had committed a particularly gruesome sex offense in 1997. He had not complied with sex offender registration requirements and there is "a prevalence of content on the internet that appeals to individuals prone to committing sexual offenses." The 10th did not have to vacate a condition the defendant challenged just because the government did not address the challenge in its answer brief. Given a split in the circuits, any error in prohibiting the possession of sexually explicit material was not plain. The 10th interpreted the prohibition not to include his PSR and any writings that are part of his treatment.