New York Federal Criminal Practice Blog
January 9, 2008

Second Circuit Affirms Imposition of Sex Offender-Type Supervised Release Conditions, Including Waiver of Therapeutic Confidentiality, in Securities Fraud Case

Dupes may have thought his game was up when he was arrested and prosecuted for possession of child pornography.  But following his conviction and sentence of 27 months, he found himself facing charges of securities fraud arising out a scheme that predated his prison sentence on the sex offense.  Convicted of that too, he apparently gratefully accepted without objection the supervised release conditions the court imposed on the securities fraud conviction, to be spared additional jail-time.  After receiving a below-Guidelines sentence of 38 months, however, reality kicked in, and he realized that some of those conditions – arising mainly out of his sex offense conviction not the securities fraud conviction – were in some ways worse than additional but finite days in a low or minimum security federal facility.  They included an obligation to register as a sex offender if his residence state had such a registry, participate in sex offender treatment, steer 100 feet clear of areas where children congregate, agree to restrictions on his Internet access, and agree to waive his right to privacy in the context of his psychotherapist communications (a waiver that obviously facilitates civil commitment of sex offenders).

On appeal, and applying a plain error analysis, in United States v. Dupes, 05-5522-cr (2d Cir. January 9, 2008), the Second Circuit rejected Dupes’s claim that the imposition of supervised release conditions in connection with his securities fraud conviction but related to his sex offense violated the Double Jeopardy Clause.  Noting caustically and not very realistically in a footnote that “no good deed goes unpunished,” the Court found that the challenged supervised release conditions were an authorized punishment for Dupes’s securities fraud conviction, not a successive punishment for his sex offense conviction: “Each of the conditions . . . is reasonably related to Dupes’s history and characteristics as a sex offender, his need for treatment, and the public’s need for protection from him” and thus were reasonably related to the sentencing factors of 18 U.S.C. § 3553(a), as required for any supervised release condition.

Critically, the Court also rejected the defendant’s claim that the requirement he waive therapeutic confidentiality in connection with court-ordered sex offender treatment exceeds the sentencing court’s authority under 18 U.S.C. § 3583(d) and § 5D1.3(b) of the Sentencing Guidelines.  Dupes pointed out that undermining the confidentiality of his treatment undermined its effectiveness and therefore his rehabilitation.  The Court was not persuaded: “While it could be argued that the waiver condition may retard Dupes’ treatment, it very well may advance his treatment by allowing the probation officer to monitor Dupes’s progress and, if necessary make adjustments to his court-ordered therapy program . . . Moreover, allowing the probation officer access to information about Dupes’s treatment could reasonably further public safety regardless of whether the treatment is effective or not.”  This was perhaps the Court’s delicate way of saying that it allows the probation officer access to information justifying a civil commitment.

Moral of the story – read the small print of the presentence report carefully (Dupes's supervised release conditions were recommended in his PSR), challenge supervised release conditions where appropriate and, in particular in this hysterical era of war on “sexual predators,” take into account, and take appropriate action regarding, potentially devastating conditions related to prior sex offenses. 

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