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Court Finds Condition of Supervised Release Invalid

In United States v. Browder, the Second Circuit (Cabranes, Lohier, Forrest, sitting by designation) has vacated in part an order finding that the defendant violated two conditions of supervised release. The Court’s decision sheds light on the respective roles of the district court and the Probation Office in entering and executing an order of supervised release, and it suggests that the Court may look with increased scrutiny at generalized conditions that defer to the Probation Office without sufficient judicial scrutiny, and may reject violation specifications based on those infirm conditions.

Browder was convicted in 2010 of possessing several hundred images of child pornography and sentenced to a term of incarceration followed by ten years’ supervised release. As special conditions of his release, Browder was required to participate in a mental health program for sexual offenders and refrain from deliberate contact with minors—excluding his children—absent approval from the Probation Office. Browder was also required to participate in the Probation Office’s computer monitoring program, but the court deferred determination of the specific terms in light of the changing nature of computer monitoring technology.

Following his release, Browder requested permission from the Probation Office to use a laptop. Because the court never specified the terms of the condition, the Probation Office simply applied its existing computer monitoring policy. Browder refused to sign the policy, however, because it permitted monitoring of all of his computer activity and he was concerned that the government would view files related to his motion for habeas relief. Browder did not allow the Probation Office to keep his laptop and would not reveal what he did with it afterward. Browder also refused to sign the terms of his sexual offender treatment program because the agreement required him to refrain from willful contact with any minor, without exception, absent approval by the Probation Office and the third-party treatment team. The Probation Office petitioned for a finding that Browder had violated the terms of his supervised release, and the district court agreed.

On appeal, Browder challenged the validity of both conditions. As to the monitoring condition, he argued that the policy was overbroad because it swept in all material on his computer, regardless of its relation to his offense or the need to protect the public. The Court observed at the outset that the district court’s failure to set the specific terms of the condition could constitute an impermissible delegation of judicial authority, as the court had deferred to whatever policy the Probation Office had in effect at the time of Browder’s release. However, Browder had waived such an argument by failing to raise it. The Court proceeded to find that the condition as implemented—monitoring of all computer activity—was permissible under the Fourth Amendment. It was reasonably related to Browder’s offense, as he had possessed several hundred child pornography images. And it was reasonably related to specific deterrence, given that Browder had previously used software to erase and hide his images. Moreover, the Probation Office did not have access to all of the information on Browder’s computer; it used a third party monitoring service that would notify the Probation Office only if it detected “contraband.”

With respect to the second condition, the Court held that the proposed treatment agreement was invalid because it conflicted with the actual condition as ordered by the district court. Whereas the court ordered that Browder refrain from deliberate contact with minors other than his children, the treatment agreement did not contain the same carve-out. The fact that the Probation Office had indicated that it would (and did) grant an exception for his children made no difference: “the District Court misapprehended the relationship between a defendant’s sentence (by a judge) and its execution (by a probation officer).” Because the treatment program requirement contradicted the order, the Probation Office was without power to impose it and the district court lacked the power to enforce it through a violation of supervised release proceeding. Notably, while the Court did not find error with respect to the first condition, it nonetheless directed the district court to review the condition on remand and restate the terms of the condition with greater specificity. In other words, although Browder had waived a delegation argument, the Court continued to express concern.

The bottom line here is that there cannot be daylight between the Court’s stated conditions and the manner in which the Probation Office enforces those conditions. Otherwise, the Probation Office may fail in its effort to prevail on a violation specification. In addition, if a proposed condition is not sufficiently specific, it may also not be enforceable. Counsel should monitor closely the conditions proposed and compare them to the conditions that the Probation Office seeks to enforce.