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Tenth Circuit Vacates Special Condition of Supervised Release That Gave Probation Officers Discretion to Ban Computer and Internet Usage

by Douglas Ankney

The U.S. Court of Appeals for the Tenth Circuit vacated a special condition of supervised release that gave discretion to probation officers to completely ban the defendant’s use of a computer and of the Internet.

Michael Lyle Blair was convicted of possession of child pornography after police discovered a hard drive containing more than 700,000 images of child pornography. Blair pleaded guilty to one count of possession of child pornography, and he was sentenced to 10 years’ imprisonment followed by seven years of supervised release.

One of the many special conditions of release stated: “The defendant’s use of computers and Internet access devices must be limited to those the defendant requests to use, and which the probation officer authorizes.” Blair appealed, arguing, inter alia, that the special condition was more restrictive than is reasonably necessary, in violation of 18 U.S.C. § 3583(d)(2).

The Tenth Circuit observed “district courts have broad discretion to prescribe conditions on supervised release.” United States v. Hanrahan, 508 F.3d 962 (10th Cir. 2007). But that discretion is limited by 18 U.S.C. §§ 3583(d) and 3553(a), the relevant provisions of which, when read in conjunction with one another, permit the trial court to impose special conditions as long as: (1) the conditions are reasonably related to “the nature and circumstances of the offense and the history and characteristics of the defendant,” the need “to afford adequate deterrence to criminal conduct,” the need “to protect the public from further crimes of the defendant,” and the need “to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner” and (2) the conditions involve “no greater deprivation of liberty than is reasonably necessary for” deterring criminal activity, protecting the public, and promoting a defendant’s rehabilitation.

Relying on United States v. White, 244 F.3d 1199 (10th Cir. 2001); United States v. Walser, 275 F.3d 981 (10th Cir. 2001); and United States v. Ullmann, 788 F.3d 1260 (10th Cir. 2015), the Court determined the special condition imposed on Blair was overbroad and unreasonable. In White, a special condition prohibited the defendant from “possess[ing] a computer with Internet access ....”

In White, the court found the condition too broad because it prohibited White from using the Internet for benign tasks, such as checking the weather or reading the news. In Walser, the court reviewed for plain error a special condition barring the defendant’s use of the Internet without prior permission of the probation officer. The court held that Walser did not meet the high hurdle of plain error but cautioned that had the issue been preserved for review then the court may have reversed because “the special condition le[ft] open the possibility that the probation office might unreasonably prevent Mr. Walser from accessing one of the central means of information-gathering and communication in our culture today.”

In Ullmann, the Tenth Circuit reviewed a challenged condition that permitted the defendant to use computers and the Internet as long as he “abide[d] the policies of the United States Probation Officer’s Computer and Internet Monitoring Program which include[d] restrictions and/or prohibitions related to: computer and Internet usage.” The court opined that the phrase “restrictions and/or prohibitions,” standing alone would be impermissible because it suggested the Probation Office may completely ban a means of communication that had become a necessary component of modern life. However, the court upheld the condition because the district court had orally modified it to specifically permit Ullmann to access the Internet with the awareness that he was being monitored for any activity that violated the terms of the probation office’s standard sex offender supervision condition.

In the instant case, the Court determined that the district court made no such oral modifications. Blair was banned from computers and access to the Internet unless and until the probation officer granted his request. Nothing in the district court’s order limited the discretion of the probation officer or obliged the officer to grant a request. The condition would prevent Blair from using a computer for benign activities, such as writing a novel or checking the weather without first obtaining permission from his probation officer, and his request could be denied. As a result, the condition imposed a “greater deprivation of liberty than is reasonably necessary” in contravention of 18 U.S.C. § 3583(d)(2).

Accordingly, the Court vacated the challenged special condition of supervised release and remanded to the district court to reformulate it to accord with the Court’s opinion. See: United States v. Blair, 2019 U.S. App. LEXIS 24030 (10th Cir. 2019). 

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