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New or Changed Circumstances Not Necessary for Modifying Conditions of Supervised Release

In United States v. Parisi, 15-963 (May 3, 2016) (RAK, RDS, RJL), the Court issued a per curiam order affirming changes to the Defendant’s conditions of supervised release ordered by the United States District Court for the Northern District of New York (Lawrence E. Kahn, J.). Rejecting Defendant’s principal challenge, the Court held that a district court may modify conditions of supervised release even in the absence of new or changed circumstances specific to the defendant. The Court also rejected Defendant’s claims that the new conditions did not satisfy relevant statutory requirements and were imposed without adequate process. This short decision is a reminder of the broad discretion of the district court, guided by probation officers, to modify and expand conditions of supervised release or probation, so long as the conditions are “reasonably related” to the offense, the offender, or the goals of post-release supervision (protection of the public, deterrence and rehabilitation).

In February 2004, Defendant John Parisi was sentenced to 150 months’ imprisonment and 3 years of supervised release after pleading guilty to four counts of sexual exploitation of a minor under 18 U.S.C. §§ 2251(a) and (d), and to one count of witness tampering under 18 U.S.C. §§ 1512(b) and 2. Parisi’s conduct included videotaping multiple minors in sexually explicit positions and posting those images on a pornographic website that he operated. Parisi continued to operate this website even after two separate searches of his residence by police, and at one point persuaded two of the minors he videotaped to sign false affidavits attesting that they were 18 years old at the time.

In January 2015, the month after Parisi’s release from prison, the United States Probation and Pretrial Services petitioned for modifications to Parisi’s conditions of supervised release. The modifications included (1) permitting searches of property, including electronic devices, with or without a warrant, based on “reasonable suspicion” of a violation of probation of other unlawful conduct, and (2) requiring Parisi to submit to polygraph or computerized voice stress analyzer (“CVSA”) examination at any point during his supervision period. According to Probation Services, these two conditions are now standard for individuals convicted of sex offenses. The requested modifications were not triggered by any new or changed circumstances specific to Parisi. The first additional condition seems designed to address the ubiquity of smart phones, tablets and other electronic devices which were less common in 2004, when Parisi was sentenced. After a hearing and briefing, the district court ordered the requested modifications.

The Court held that while new or changed circumstances specific to the defendant may support a district court’s decision to modify the conditions for supervised release pursuant to 18 U.S.C. § 3583(e), they are not required for any such modification. The Court observed that this holding is in accord with decisions by several other circuits.

The Court referenced its earlier decision in United States v. Vargas, 564 F.3d 618, 623-24 (2d Cir. 2009), where it held that a district could extend a term of supervised release to “correct an inadvertent omission that runs against the policies of section 3553(a),” even in the absence “new circumstances.” This decision makes clear that neither “new circumstances” nor an earlier “inadvertent omission” is prerequisite to a district court’s authority to modify the conditions of release. Rather, as both decisions emphasize, the critical requirement is that a district court consider the § 3553(a) sentencing factors when imposing any such modification.

The Court also rejected Parisi’s claim that the new conditions violated the substantive requirements for supervised release set out in 18 U.S.C. § 3583(d) and (e). The Court found the new search conditions appropriate to keep pace with new technologies that Parisi could use to commit similar crimes, and noted that the current U.S. Sentencing Guidelines included a similar condition except without the “reasonable suspicion” constraint. The Court likewise found the polygraph/CVSA condition appropriate, citing an earlier holding that a polygraph condition could be reasonable and advance sentencing goals. See United States v. Johnson, 446 F.3d 272, 278 (2d Cir. 2006). The district court did not abuse its discretion by imposing this polygraph/CVSA condition here, especially given Parisi’s “deceptive behavior during the course of the investigation.”

Finally, addressing an issue not raised by the Defendant in proceedings below, the Court held that the district court afforded the Defendant adequate process before deciding the requested modification. The district court heard arguments from Parisi’s counsel and the government, and even ordered supplemental briefing in response to certain objections raised by Parisi during that argument. The district court did not need to hold a second hearing to resolve those objections and render its final order. Last, the proceeding did not run afoul of Rule 32.1(c)(1) of the Federal Rules of Criminal Procedure, which requires that the subject of a modification proceeding be afforded “an opportunity to make a statement and present any information in mitigation.” The Court concluded that this rule does not require a district court to “specifically invite” such a statement.

-By Jason Vitullo and Harry Sandick