Second Circuit Criminal Law Blog

Second Circuit Affirms Sentencing Court’s Delegation of Verification Testing Decision to Probation

In United States v. Villafane-Lozada, No. 19-2098 (2d Cir. Sept. 3, 2020) (Livingston, Sullivan, Park), the Second Circuit rejected a defendant’s challenge to the district court’s delegation to probation the decision of which type of technology to use in order to verify the defendant’s compliance with the conditions of his supervised release. 

The defendant, Daniel Villafane-Lozada, who was convicted of certain sex offenses, was sentenced to a term of 120 months’ imprisonment followed by ten years of supervised release.  Due to the nature of the crime of which he was convicted, the defendant was required to submit to “verification testing” during his supervised release to verify that he had not committed any further unlawful acts.  The defendant challenged the sentencing court’s decision to impose as a special condition on his supervised release a requirement that defendant submit to verification testing that could “include examination using a polygraph, computerized voice stress analyzer[,] or similar device to obtain information necessary for supervision of the case monitoring and treatment,” at the direction of a probation officer, up to two times per year to determine whether defendant was in compliance with the terms of his supervised release.  The defendant objected at sentencing to the prospect of being subjected to a computerized voice stress analysis tool on the grounds that the technology is not sufficiently reliable, and to the district court’s delegation to a probation offer the choice of which among several potential verification technologies constituted should be used to verify the defendant’s compliance with the terms of his supervised release.

Writing for a unanimous panel, Judge Sullivan concluded that the defendant’s first challenge was not ripe for the Court’s review because “resolution of [the reliability of computerized voice stress analysis testing] hinges on what the state of computerized voice stress analysis technology will be when Villafane Lozada begins his term of supervision in six years,” and that the Court could “only speculate about that fact” in the present day.  Conversely, the defendant’s delegation argument was ripe for the Court’s review because it “challenged the already realized delegation of judicial power to a probation officer” and because the defendant could not have raised such a challenge through other avenues. 

The Court then rejected the delegation challenge.  It reasoned that district courts have exclusive authority to impose special conditions of supervised release, may delegate certain decision-making authority to a probation officer, and that they need not “micromanage every facet of a defendant’s supervision.”  The Court then focused in on the decision that Villafane-Lozada challenged as an improper delegation:  not the decision to undergo verification testing, which the district court had made, but rather “the type of testing that would be employed to assess Villafane-Lozada’s veracity.”  The Court then likened this determination to certain decisions that are “routinely delegated to probation officers,” including “the choice between various outpatient therapy options,” and concluded that the delegation below was proper.

Villafane-Lozada clarifies the distinction between the types of challenges to a condition of supervised release that can be challenged right away—such as a delegation of a decision to a probation officer by the sentencing court—and those that can only be made once the condition at issue goes into effect—such as the reliability of a given verification test employed by probation during a defendant’s term of supervised release.  It also reinforces the significant role that probation officers play in carrying out sentences imposed by courts and suggests that future delegations of additional duties and decisions will be upheld so long as they are substantially similar or analogous to other duties and decisions that have long been delegated to probation officers in the past. 

As in United States v. Birkedahl, the Circuit is again refraining from deciding disputes over supervised release conditions involving verification testing until a later date.  It is true that we will know more about the reliability of different verification testing methods when the defendant is on supervised release—several years in the future—than we know today.  At the same time, it is unfortunate for the defendant that when his term of supervised release begins he will no longer have court-appointed counsel (absent a violation).  Thus far, the reliability of voice stress testing has been subject to question; as has been the case since the dawn of humanity, there is no magic way to know when someone is lying.[1]  Whether this will change in the next six years remains to be seen.

By Clint Morrison and Harry Sandick

[1] The National Institute of Justice, the research, development and evaluation agency of the Department of Justice, has discussed this technique in its NIJ Journal.  See Kelly R. Damphouse, Ph.D., “Voice Stress Analysis:  Only 15 Percent of Lies About Drug Use Detected in Field Test,” Issue No. 259 (March 2008) (“According to a recent study funded by the National Institute of Justice[], two of the most popular VSA programs in use by police departments across the country are no better than flipping a coin when it comes to detecting deception regarding recent drug use.”).