Federal Supervised Release Conditions – Restrictions on Court Discretion

Federal Supervised Release Conditions

Federal supervision is oftentimes misunderstood. What conditions can a court impose and what conditions are too much? This post is intended to clear the fog a bit using a case from Kentucky. This interesting case was decided by the Sixth Circuit Court of Appeals earlier this year. In part, the appeals court threw out a lifetime ban on smart phones.

No iPhone for life? Not unless you have a really good reason!

When it comes to federal supervised release and probation, District Courts have broad discretion in the limitations they can place on defendants.

However, this discretion is not unlimited and sentencing judges must have a valid explanation for why each limitation is imposed. Legally speaking, conditions of supervised release are reviewed by appellate panels for abuse of discretion.1 A sentencing court’s discretion is limited by three standards. Each special condition must:

  1. “[be] reasonably related to the sentencing factors set forth in 18 U.S.C. §3553(a)”;
  2. “involves no greater deprivation of liberty than is reasonably necessary for the purposed set forth in § 3553(a)”; and
  3. “is consistent with any pertinent policy statements issued by the Sentencing Commission.”2

The 6th Circuit Sets Limits on District Courts

In United States v. Inman, the Sixth Circuit held that, even though Inman was a really bad guy, the district court judge went too far with special conditions and imposing a lifetime term of supervision. In plain English, each condition was a lifetime ban on something.

The district court judge set a number of conditions that no one asked for, or talked about at Mr. Inman’s sentencing hearing: he had to submit to mandatory drug testing; to notify the probation office if he is prescribed any medicine; to provide the probation office with all of his financial information; and he can never drink alcohol again, possess or use a device capable of creating pictures or video, or rent a storage facility or post office box.

On review, the appellate court reviewed for plain error. It had to determine if: the district court adequately stated in open court at the time of sentencing its rationale for mandating special conditions of supervised release and whether each condition of supervised release was reasonably related to the dual goals of probation, the rehabilitation of the defendant and the protection of the public.

The Kicker

Next comes the big test. Special supervised release conditions must:

“[I]nvolve[] no greater deprivation of liberty than is reasonably necessary to serve the goals of deterrence, protecting the public, and rehabilitating the defendant”3

What This All Means

In basic terms, these limitations mean that a district court judge cannot just impose whatever they please at a sentencing hearing in terms of special supervised release conditions. For a financial crime, requiring the defendant to turn over monthly financials may be imposed legally. However, imposing an alcohol ban on a defendant with no history of substance abuse usually cannot.

If you’d like PCR Consultants to take a look at your terms of supervision and help get rid of supervised release conditions that don’t meet these standards, please give us a call for a free consultation.

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  1. United States v. Heidebur, 417 F.3d 1002, 1007 (8th Cir. 2005) []
  2. United States v. Mark, 425 F.3d 505, 507 (8th Cir. 2005), citing 18 U.S.C. §3583; United States v. Boston, 494 F.3d 660, 667 (8th Cir. 2007). []
  3. 18 U.S.C. §3583(d)(1)-(2); United States v. Brogdon, 503 F.3d 555, 563 (6th Cir. 2007). Although this is a 6th Circuit case, most circuits have precedent that mirrors this standard. []

Supervised Release Termination Testimonials

Client Satisfaction at its Best

Supervised release termination, or early termination of federal probation, as a major part of what we do here at PCR Consultants. It is important for present and future clients to hear from the ones that came before them. Here is what one client had to say:

“I am extremely happy to tell you that the court has granted [my] motion for termination of supervised release!!! I can’t tell you how happy and grateful I am to you and your team! You did a brilliant job and I am happy to refer you to anyone I know that might need your services.”
– Ben

Ben’s supervised release termination ended 18-months before its natural expiration. His last name and case number have been withheld per his request.

Handling Supervised Release Termination

There is a big landscape of federal law and court decisions that guide judges when making decisions on whether or not to grant a defendant’s request to gain early release from federal supervision. Policy set forth by the US Sentencing Commission adds flavor to Title 18 of the United States Code, which tells judges what they must consider when a request like this comes to their desk.

Then there are studies, papers, data, and re-offense concerns that factor in. Using all these factors, plus a few items from our proprietary “Trick Bag”, PCR Consultants enjoys a very high success rate with clients seeking early termination of their supervised release or probation.

Our Services Work!

Follow the links below for judicial orders in favor of some our successful supervised release termination clients.

Supervision terminated within a week of request! (May 2014)

Supervised Release ended before two full years were served.

Supervised Release cut immediately.

Supervised Release ended over two years early, before half of the term was served!
(Client names redacted to protect privacy)

9th Circuit Restricts Computer Fraud Prosecutions

As reported by The Recorder, the 9th Circuit Court of Appeals has done much to narrow the scope of the Computer Fraud and Abuse Act. In their article about this circuit decision, the Recorder reports that you cannot be criminally prosecuted for checking out Facebook or football scores at work.

“We shouldn’t have to live at the mercy of our local prosecutor”

Below is an excerpt from the original article at law.com:

Don’t worry: it’s not illegal to read this article at work.

In a highly anticipated test of the Computer Fraud and Abuse Act, the U.S. Court of Appeals for the Ninth Circuit construed the law narrowly Tuesday, saying prosecutors can’t use it to go after someone who checks sports scores from a work computer or fibs on Facebook. The 1984 law is an anti-hacking statute, not a tool to make federal criminals of anyone who violates employer computer policies or a website’s terms of service, the en banc panel said in a 9-2 opinion in U.S. v. Nosal, 10-10038.

“The government’s construction of the statute would expand its scope far beyond computer hacking to criminalize any unauthorized use of information obtained from a computer,” Chief Judge Alex Kozinski wrote for the majority. “This would make criminals of large groups of people who would have little reason to suspect they are committing a federal crime.”

In splitting from other circuits and reversing the panel decision, the court said the plain language of the statute prohibiting someone from “exceeding authorized access” to a computer does not extend to violations of use restrictions. The majority said there are other laws the government can use to prosecute someone who steals confidential information, and that a narrow interpretation of the CFAA is necessary because “we shouldn’t have to live at the mercy of our local prosecutor.”

The ruling affirms San Francisco U.S. District Judge Marilyn Hall Patel, who junked five counts in the government’s case against David Nosal. He is the former employee of an executive search firm accused of having colleagues access a confidential database to get information for his new competing business. “Because Nosal’s accomplices had permission to access the company database and obtain the information contained within, the government’s charges fail to meet the element of ‘without authorization, or exceeds authorized access,'” Kozinski wrote.

The court illustrated its point with a series of alarmist scenarios: Under the government’s view of the law, the “short and homely” person’s claim on Craigslist to be tall, dark and handsome could earn the poster a “handsome orange jumpsuit.” Vast numbers of teens who used Google could have been deemed “juvenile delinquents” since until last month the company’s use agreement technically barred minors from using its services.

For the government, the case was not about white lies and people goofing off at work. . Nosal, they argue, was up to no good, and the statute requires an “intent to defraud.” The dissenting judges make that point.

“This case has nothing to do with playing sudoku, checking email, fibbing on dating sites, or any of the other activities that the majority rightly values,” Judge Barry Silverman wrote, with Judge Richard Tallman joining. “It has everything to do with stealing an employer’s valuable information to set up a competing business with the purloined data, siphoned away from the victim, knowing such access and use were prohibited in the defendants’ employment contracts.”

Prosecutors have taken an aggressive posture in this case, appealing even when many criminal counts remained intact at the trial level and bringing in a lawyer from Main Justice, Jennifer Ellickson, to argue. Nosal’s appellate counsel Dennis Riordan said in light of that, he expects there to be a push inside the department to file cert. However, he said, the Solicitor General’s office, which makes the call, may think twice about pursuing this particular CFAA case, considering Kozinski’s “very, very powerful and well reasoned opinion.”

It is difficult to imagine why the dissenting opinion here did not see the ‘slippery slope’ of unintended consequences if the en banc decision of the Ninth Circuit were to have gone the other way.

It reminds me of the Supreme Court’s decision in Gonzales v. Raich which didn’t go as well as this case. In Raich, the Supreme Court decided that marijuana grown for legal, personal use inside a California residence could be federally prosecuted as interstate commerce. This may be confusing to the non-lawyer because the represented facts of the case were neither interstate nor commerce.

I am encouraged when I see appellate decisions that actually curtail federal prosecuting authority, rather than expanding them. Kudos to the 9th!