United States v. Zielinski , 511 F. App'x 112 ( 2013 )

12-595-cr
United States v. Zielinski
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or
after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and
this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a
party must cite either the Federal Appendix or an electronic database (with the notation “summary
order”). A party citing a summary order must serve a copy of it on any party not represented by
counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 14th
day of February, two thousand thirteen.
PRESENT:
JOHN M. WALKER, JR.,
JOSÉ A. CABRANES,
RICHARD C. WESLEY,
Circuit Judges.
_____________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 12-595-cr
JEREMY ZIELINSKI,
Defendant-Appellant.
_____________________________________
FOR DEFENDANT-APPELLANT: JAMES ANTHONY RESILA, Carter, Conboy,
Case, Blackmore, Maloney & Laird, P.C.,
Albany, NY.
FOR APPELLEE: ROSS GOLDMAN, Appellate Section, Criminal
Division, United States Department of Justice
(Lanny A. Breuer, Assistant Attorney General,
John D. Buretta, Deputy Assistant Attorney
General, Thomas E. Booth, Richard S.
Hartunian, United States Attorney for the
Northern District of New York, Brenda K.
Sannes, Robert A. Sharpe, Assistant United
States Attorneys, on the brief), Washington, DC.
Appeal from a judgment of the United States District Court for the Northern District of
New York (Thomas J. McAvoy, Judge).
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court entered on February 8,
2012 is AFFIRMED.
Jeremy Zielinski appeals from a final judgment of the District Court revoking his supervised
release and imposing certain sex offender conditions. On appeal, Zielinski argues that (1) the
District Court erred by imposing sex offender conditions of supervised release on him because his
relevant sex offenses are temporally remote, (2) four of the special conditions are unconstitutional,
and (3) the District Court improperly considered certain items of evidence at sentencing. We
assume the parties’ familiarity with the background of the case, which we reference only as necessary
to explain our decision to affirm.
BACKGROUND
In 2001-2002, Zielinski had occasional inappropriate online conversations with an
undercover police officer he believed was a 13-year-old girl. He transmitted images of child
pornography to the undercover officer in January 2002, which caused law enforcement officials to
search his New York residence. Images of child pornography were seized from Zielinski’s computer
during the search, and he was arrested in April 2002. While out on bail, Zielinski fled to Florida to
avoid prosecution.
Zielinski became involved with a group that promoted online fraud schemes in Florida. In
February 2004, law enforcement officials intercepted a package with counterfeit credit cards sent by
Zielinski to a confidential informant. Zielinski’s home in Florida was searched, and the search
revealed movies and images that appeared to be child pornography as well as online chat records, in
which Zielinski discussed manufacturing and selling child pornography. Zielinski was arrested on
October 29, 2004.
Zielinski then was transferred to New Jersey, where he pleaded guilty to conspiracy to
commit access device fraud, in violation of 18 U.S.C. § 1028(a)(7), before the United States District
Court for the District of New Jersey. On June 28, 2006, he was sentenced to 21 months’
imprisonment and two years of supervised release.
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After serving his federal sentence, Zielinski was transferred to New York state custody on
account of his aforementioned actions during 2001-2002. On August 30, 2006, he pleaded guilty, in
Warren County Court, to one count of promoting sexual performance by a child, one count of
attempted dissemination of indecent material to a minor, and one count of bail jumping; he was
sentenced to two-to-six years’ imprisonment. While incarcerated in New York, Zielinski was
enrolled in a Sex Offender Counseling and Treatment Program, but he was removed from the
program for various instances of non-compliance, including possessing pornography on the first day
of the program and possessing a book on rape that prison officials seized. On January 14, 2011, the
Warren County Court classified Zielinski as a Level 2 Sex Offender; he was released from custody
two weeks later and began his term of supervised release.
On November 16, 2011―after Zielinski’s case was transferred to the Northern District of
New York,1 and after the United States Probation Office (“Probation Office”) learned of Zielinski’s
state sex offense and bail jumping convictions―the Probation Office petitioned the District Court to
add certain sex offender conditions to Zielinski’s term of supervised release. It also petitioned the
District Court to revoke Zielinski’s supervised release because he (1) failed to respond to a letter
from the state sex offender registration office, and (2) traveled to New York City without proper
authorization.
The District Court held a supervised release violation and modification hearing on February
2, 2012. At the hearing, Zielinski conceded the unlawful travel violation, and the District Court
heard evidence regarding the Probation Office’s modification petition. The District Court
sentenced Zielinski to home confinement for a period of six months. It also imposed sex offender
conditions of supervised release on Zielinski, noting that “prophylactic” measures were justified
until it could be demonstrated that Zielinski “no longer ha[s] a propensity” to commit sex crimes.
This appeal followed.
DISCUSSION
District courts possess “broad authority . . . to impose any condition of supervised release
that [they] consider[ ] to be appropriate, provided such condition . . . is ‘reasonably related’ to certain
statutory sentencing factors listed in section 3553(a)(1) and (a)(2) of [Title 18], ‘involves no greater
deprivation of liberty than is reasonably necessary’ to implement the statutory purposes of
sentencing, and is consistent with pertinent Sentencing Commission policy statements.” United States
v. Dupes, 513 F.3d 338, 343 (2d Cir.), cert. denied, 552 U.S. 1272 (2008) (quoting 18 U.S.C. § 3583(d)).
We generally review conditions of supervised release imposed by a district court for abuse of
1 The case was transferred to the Northern District of New York because Zielinski lived in that district after being
released from New York state custody.
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discretion, but a challenge to conditions of supervised release that presents an issue of law is
generally reviewed de novo. Id.; see United States v. Brown, 402 F.3d 133, 136 (2d Cir. 2005).
A. The District Court Properly Imposed Sex Offender Conditions of Supervised Release
We have held that sex offender conditions of supervised release may be reasonably related to
a defendant’s history and characteristics even though the instant offense was not a sex offense. See
Dupes, 513 F.3d at 343-44. Although we are aware that some circuits have held that imposing sex-
offender conditions can be an abuse of discretion where the past sex offense is temporally remote
and minimal intervening circumstances exist, see, e.g., United States v. Dougan, 684 F.3d 1030, 1034-37
(10th Cir. 2012) (17 year-old sex offense); United States v. Carter, 463 F.3d 526, 527 (6th Cir. 2006) (17
year-old sex offense); United States v. T.M., 330 F.3d 1235, 1237-40 (9th Cir. 2003) (20 year-old sex
offense); United States v. Kent, 209 F.3d 1073, 1077 (8th Cir. 2000) (13 year-old sex offense), we
conclude that the District Court did not abuse its discretion in this case for multiple reasons.
First, the amount of time between Zielinski’s relevant sex offense and the District Court’s
imposition of sex offender conditions of supervised release is shorter than the cases described above
and shorter than several cases in which circuits have affirmed the imposition of sex offender
conditions of supervised release.2 See, e.g., United States v. Smith, 655 F.3d 839, 847 (8th Cir. 2011)
(affirming the imposition of sex offender conditions of supervised release based on a 12 year-old sex
offense); United States v. Genovese, 311 F. App’x 465 (2d Cir. 2009) (affirming the imposition of sex
offender conditions of supervised release 12 years after defendant received his first probationary
sentence); United States v. Brogdon, 503 F.3d 555, 563-65 (6th Cir. 2007) (affirming the imposition of
sex offender conditions of supervised release based on approximately a 12-year-old sex offense).
Second, Zielinski’s intervening conduct counsels in favor of affirming the District Court. As
noted, a 2004 search of Zielinski’s home in Florida revealed movies and images that appeared to be
child pornography as well as online chat records, in which Zielinski discussed manufacturing and
selling child pornography. Moreover, during his incarceration between 2006 and 2011, Zielinski was
removed from the prison’s Sex Offender Counseling and Treatment Program for non-compliance,
including possessing pornography and a book on rape.
On the facts presented in this appeal, we conclude that Zielinski’s relevant sex offense is not
too remote so as to justify the imposition of sex offender conditions of supervised release.
2 Specifically, the District Court imposed sex offender conditions on Zielinski less than ten years after a search of
Zielinski’s home revealed child pornography and less than six years after he pleaded guilty to and was sentenced on
account of his relevant sex offenses.
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B. The Special Conditions Imposed Were Appropriate
Zielinski also takes issue with four of the special conditions of his supervised release: (1) a
ban on direct and indirect contact with minors without supervision (Special Condition 2); (2) the
requirement that he participate in a mental health program approved by the Probation Office
(Special Condition 5); (3) the requirement that he submit to various searches on reasonable
suspicion (Special Condition 9); and (4) the requirement that he contribute to the cost of any
evaluation, treatment, or monitoring to be determined by the Probation Office (Special Condition
11). His arguments are without merit.
The District Court properly imposed these four challenged special conditions because each
of them “is reasonably related to [Zielinski’s] history and characteristics . . . , his need for treatment,
and the public’s need for protection from him.” Dupes, 513 F.3d at 344. These conditions are not
overly broad or vague, and similar conditions previously have been upheld by this Court or our
sister circuits pursuant to § 3583(d). In United States v. Johnson, 446 F.3d 272 (2d Cir. 2006), we
approved a ban on direct and indirect contact with minors virtually identical to Special Condition 2.
Id. at 280-81. In Dupes, we held that a district court had the authority to require that a defendant
undergo sex offender treatment (as ordered by Special Condition 5) based on a prior conviction for
a sex offense. 513 F.3d at 344. We approved a special condition relating to searches in United States
v. Jennings, 652 F.3d 290, 294 (2d Cir. 2011), quite similar to Special Condition 9. And we have no
difficulty affirming the District Court’s imposition of Special Condition 11, which requires Zielinski
to contribute to the cost of his treatment and monitoring as determined by the Probation Office.
See, e.g., United States v. Soltero, 510 F.3d 858, 864 & n.5 (9th Cir. 2007); United States v. Warden, 291
F.3d 363, 365-66 (5th Cir. 2002).
C. The Contested Evidentiary Rulings Were Correct
Finally, Zielinski argues that the District Court improperly admitted 11 documents, which
described his sex offenses, his subsequent conviction, and his classification as a sex offender. As
district courts maintain “broad discretion over the admission of evidence,” United States v. McDermott,
245 F.3d 133, 140 (2d Cir. 2001), we review their evidentiary rulings for abuse of discretion only,
United States v. Carthen, 681 F.3d 94, 100 (2d Cir. 2012).
Despite Zielinski’s argument that this evidence should have been precluded under Federal
Rule of Evidence 403, “the Federal Rules of Evidence do not apply with their normal force in
supervised release revocation [or modification] hearings,” United States v. Bari, 599 F.3d 176, 179 (2d
Cir. 2010), and a district court need only base its findings “on ‘verified facts’ and ‘accurate
knowledge,’” id. (quoting Morrissey v. Brewer, 408 U.S. 471, 489 (1972)). In light of these principles,
and after reviewing the record, we conclude that the District Court did not abuse its discretion by
considering these documents.
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CONCLUSION
We have considered all of Zielinski’s arguments on appeal and find them to be without
merit. For the reasons stated above, we AFFIRM the February 8, 2012 judgment of the District
Court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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