All defense lawyers have experienced a client wresting victory from the jaws of defeat with their heartfelt words at sentencing (and vice versa).  Now, in United States v. Gonzalez, 07-4824-cr, 2008 WL 2357234 (2d Cir. June 11, 2008), the Second Circuit has held, overruling prior precedent, that the defendant's right under Rule 32 to address the sentencing court and save his butt or shoot himself in the foot prior to the imposition of sentence is absolute, and cannot be given effect after the sentence has been imposed.

As Judge Newman, writing for the Court, sensibly points out:  "Whatever the value of sentencing allocution, neither a defendant nor observers in the courtroom are likely to believe that an opportunity to try to talk a judge out of a sentence already imposed is as effective as an opportunity to speak before a sentence has been imposed."

Thus, the sentence of Gonzalez - and any defendant going forward who is similarly denied an opportunity at presentence allocution - is vacated and a new sentencing proceeding must be held in accordance with Rule 32. 

The Court also vacated the sentence for the judge's failure to explain his reasons for departing above the applicable guideline range.  Here, the district court had sentenced a defendant on supervised release to two years, more than double the ten-month high end of the applicable range for the supervised release violation.  The Court criticized the brevity of the reasons given for the departure, noting that it was unclear if the sentencing court considered the  Sentencing Commission's policy statement concerning violation of supervised release that "the court should sanction primarily the defendant's breach of trust, while taking into account, to a limited degree, the seriousness of the underlying violation and the criminal history of the violator.”

Illustrating the complexity of striking a balance between liberty interests and public protection in sex offender cases, an EDNY judge imposed a series of restrictive supervised release conditions on a defendant convicted of possession of child pornography in United States v. Porter, 03 CR 129 (CPS), 2008 WL 117839 (E.D.N.Y. January 3, 2008).  They included mental health treatment with polygraph testing, a limit of one personal Internet-capable device, a ban on associating with children under the age of 18, and monitoring through a GPS device and undercover surveillance.

The controversial condition of polygraph testing as a component of sex offender mental health treatment had been approved by the Second Circuit in United States v. Johnson, 446 F.3d 272 (2d Cir. 2006), a case involving someone convicted of sexual predation of minors.  The Johnson court concluded that polygraph testing would help "penetrate deception and encourage an offender to confront his own motivations and behaviors," an observation quoted with approval in Porter.  Neither the Johnson nor Porter courts found a Fifth Amendment problem with the condition, "because [the defendant] can challenge the use of any incriminating statements made during the course of the polygraph examination in any court proceeding."  But having the option to challenge the use of the statements does not mean the challenge will automatically be successful, and neither court addresses the potential success of a challenge to derivative use of such statements or their use in the context of a civil commitment proceeding, where the standard of admission would be lower than in a criminal one.  Moreover, many psychologists would condemn as counter-productive an effort to police the therapeutic process in such an intrusive, minute and unreliable fashion.  While both the Johnson and Porter courts purport to view the polygraph testing as an aid to mental health treatment, in reality, it is less about promoting therapy than keeping tabs.
 
Also of interest in this decision is the court's handling of the Internet access issue.  The defendant would be limited to accessing the Internet through one Internet capable device, loaded with filtering software.  Until Porter acquired such a device, however, the court permitted him to access the Internet at the public library, upon 24 hours notice to his probation officer, and subject to undercover surveillance and a prohibition on disabling the filtering software on the library terminal.  Noting that "the software results in a degree of 'underblocking,'" the court nonetheless held that "accessing the Internet at a public library still provides a controlled environment in which Porter will be least likely to access pornography."

It bears noting that this case involved a violation of supervised release, and a particularly non-compliant supervisee.  The restrictions in the case, therefore, represent a painstaking effort to avoid punishing the defendant with additional incarceration (he was given a four-month prison sentence on the violation out of a maximum two years, and a recommended guideline range of three to nine months), but at the same time diminishing the inclination and opportunities for recidivism.  Porter's (and indeed, Johnson's) non-compliance are strong grounds to oppose the imposition of polygraph testing and GPS monitoring as a matter of routine in sex offender cases.

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. 

A facet of modern life as integral as the telephone, the Internet also provides unique and anonymous avenues of opportunity for sex offenders. Not surprisingly, in sex offense cases, sentencing courts have used the supervised release statute to craft Internet-usage restrictions in an effort to prevent future wrongdoing by the offender upon release. Circuit courts, in turn, have adopted varyingly permissive and restrictive approaches when reviewing the validity of these restrictions. The Second Circuit has charted an intermediate course – set forth in United States v. Lifshitz, 369 F.3d 173 (2d Cir. 2004), and United States v. Balon, 384 F.3d 38 (2d Cir. 2004) – of embracing technological solutions, such as monitoring and filtering software, to strike a balance between access and control. The Second Circuit’s approach to the issue is the subject of an upcoming note in the William & Mary Law Review, “You Fall into Scylla in Seeking to Avoid Charybdis”: The Second Circuit’s Pragmatic Approach to Supervised Release of Sex Offenders. Analyzing the history and goals of the supervised release statute and reviewing the differing approaches of other circuits, the author concludes that the Second Circuit’s pragmatic approach most effectively advances the purposes of supervised release, namely, the rehabilitation of the offender and his transition back into the everyday life of the community. As the author notes, “the value of a release program as a rehabilitative tool mirrors the extent to which the conditions of supervised release simulate life after the end of the program.” Accordingly, the Second Circuit’s approach maximizes the offender’s capacity for rehabilitation, by allowing him to “take part in all activities that law-abiding citizens would use the Internet for, while having his access monitored or filtered to minimize the chances of recidivism.”

The note will be of specific interest to those with defendants in sex offense cases. But its analysis of the legislative history of supervised release is of wider interest, particularly to those with cases where judges may seek to fashion unusual liberty restrictions. To the extent these restrictions are unnecessarily punitive and impede the goal of the offender’s smooth re-entry to society, they may run afoul of the primary rehabilitative purpose of supervised release.

The defendant in United States v. Hargrove, 2007 WL 2324008 (2d Cir., August 16, 2007), entered the courtroom thinking he was facing a sentence in the range of 3 to 9 months, only to learn unexpectedly that the judge intended to upwardly depart to 12 months, which she promptly did. Were it not for the fact that Hargrove was before the court on a violation of supervised release, as opposed to an initial sentencing upon conviction, his appeal would have been successful. Instead, the Second Circuit held to its pre-Booker precedent that a district court, acting on its own motion, is not required to give the defendant pre-hearing notice before imposing a sentence above the range recommended by the policy statements in the U.S. Sentencing Guidelines for revocation of supervised release. Pre-hearing notice continues to be required for sua sponte sentences above the Sentencing Guidelines in the context of the initial sentencing. See United States v. Cole, 2007 >WL 2263934 (2d Cir., August 9, 2007). Although acknowledging that since Booker, a harmonization has occurred between the respective sentencing schemes governing the initial sentencing and revocations of supervised release (i.e., both are advisory and subject to a "reasonableness" review on appeal), the Hargrove Court held that qualitative differences between the two proceedings still exist such that the protections and safeguards applicable at the initial sentencing do not apply in the revocation context. The only solace in the decision occurs in the final footnote, where the Court states "[t]hough notice is not mandatory, it is prudent to give such notice, especially in situations in which the court is relying on information that is either new or not obvious when determining the sentence."