Tenth Circuit Strikes Down Special Probation Condition as Too Broad

Court reads condition as totally banning internet access by man convicted of child porn possession

The 10th Circuit Court of Appeals published a decision August 13 examining a special probation condition given to a defendant to decide whether its deprivation of his liberty goes too far. The appeal asked whether the special condition, which restricts the defendant’s use of computers and internet-connected devices to those the defendant specifically requested and authorized by his probation officer, result in greater deprivation of his liberties than reasonably necessary to protect public safety, deter criminal activity and encourage the defendant’s rehabilitation.

The 10th Circuit said yes. The court reasoned the condition is too broad because it allows a total ban on Blair’s internet access by not putting any boundaries around the restrictions imposed by the probation officer. The 10th Circuit ordered the district court to revise the special condition to fit its opinion.

“It is clear from our published cases that a special condition of release that gives the probation office discretion to ban completely a defendant’s use of the Internet, as this condition does, violates that section,” wrote Senior Judge David Ebel for the 10th Circuit panel.

The Office of the Federal Public Defender for Colorado and Wyoming has a stated policy of not commenting on its cases. A spokesperson for the Colorado U.S. Attorney’s office did not respond to a request for comment by press time.

Michael Blair pled guilty to child pornography possession after law enforcement found more than 700,000 images on a hard drive in his home. The federal district court ultimately sentenced him to 10 years in prison plus seven years of supervised release.

Blair appealed the length of his prison sentence and the probation condition restricting his use of internet-connected devices.

The 10th Circuit upheld the 10-year sentence. The court rejected Blair’s arguments that the district court didn’t adequately weigh particular details of his personal history, including Blair’s difficult childhood, poor mental and physical health and his military service.

Looking at Blair’s appeal of the special probation condition, the court analyzed whether it is related to the details of the offense, as well as the defendant’s characteristics and history. 

Special probation conditions also can’t result in deprivation of freedom beyond what’s necessary to deter criminal activity, protect public safety and rehabilitate the defendant. The 10th Circuit decided Blair’s special probation condition restricting his internet access violates this requirement but didn’t reach the issue of whether it is reasonably related to the goals of supervised release.

The court looked at three previous cases: United States v. White, United States v. Walser and United States v. Ullmann.

In White, the 10th Circuit overturned a special probation condition barring the defendant from having an internet-connected computer during his probation period. The court said the condition was both too narrow and too broad. It didn’t keep the defendant from looking at sexually explicit material on something other than a personal computer, such as one in a library. But it was also too broad, said the court, because it didn’t allow the defendant to use the internet for harmless purposes such as checking the weather.

The court said in Walser that a special condition disallowing internet access without permission from the defendant’s probation officer did not amount to a plain error. But the court also said it may have gone the other way under a different standard of review.

And in In Ullmann, the 10th Circuit upheld a special probation condition that allowed internet and computer access by the defendant with the understanding that the probation officer would monitor the use. The condition stated it included “restrictions and/or prohibitions” of computer and internet use. But the district court clarified the condition would only limit the defendant’s internet access, so the 10th Circuit decided it was lawful.

But in Blair’s case, the court decided that both on its face and considering the district court’s sentencing statements, the special condition totally bans Blair’s use of internet devices and other computers. 

It would be up to the probation officer to make exceptions, the court said, but the officer wouldn’t have an obligation to consider any.

“Blair argues that, on its face, the special condition would prohibit his use of a computer for benign activities, such as writing a novel or checking the weather, without first obtaining permission from his probation officer,” wrote Ebel. “We agree.”

Senior Judge Bobby Baldock wrote a dissent to the panel’s overturning of Blair’s special probation condition. He said he believes the majority incorrectly applied the Ullmann precedent by interpreting it to mean that if a special probation condition can be read as totally banning internet use, the court is obligated to read it that way. 

“To the contrary, [in Ullmann] we acknowledged we must ‘constru[e] [the] condition so as to render it legally sound,’” Baldock wrote. 

Baldock also disagreed that the context around the condition makes it a total ban on internet use. He pointed to the language of Blair’s probation condition requiring his “use of computers and Internet access devices must be limited to those the defendant requests to use, and which the probation officer authorizes.” 

“Imposing limitations on the defendant’s use of computers and Internet access devices is no different than imposing restrictions on a defendant’s computer and Internet use,” Baldock wrote. “Yet, even though we held the latter was permissible in Ullman, the Court today holds the former is impermissible.”

He said he believes clarification from the district court also shows the condition doesn’t totally ban Blair from accessing the internet, because it told the probation office to allow access “if deemed safe and appropriate given the particular circumstances presented by the defendant.”

“This clarification is far more specific and meaningful than the district court’s clarification in Ullman that the condition was not a prohibition,” Baldock said. “I do not see how a more specific clarification than the one in Ullman that rendered the condition permissible there fails to do the same here.”

—Julia Cardi

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