United States v. Loy ( 2001 )

Opinions of the United
2001 Decisions States Court of Appeals
for the Third Circuit
1-4-2001
United States v. Loy
Precedential or Non-Precedential:
Docket 99-3827
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Filed January 4, 2001
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 99-3827
UNITED STATES OF AMERICA
v.
RAY DONALD LOY,
Appellant
APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(D.C. No. 98-cr-00089)
District Judge: Alan N. Bloch
Argued: March 9, 2000
BEFORE: BECKER, Chief Judge, NYGAARD and
GARWOOD,* Circuit Judges
(Filed January 4, 2001)
Marketa Sims, Esq. (Argued)
Office of Federal Public Defender
960 Penn Avenue
415 Convention Tower
Pittsburgh, PA 15222
Attorney for Appellant
_________________________________________________________________
*Honorable Will L. Garwood, United States Cir cuit Judge for the Fifth
Circuit, sitting by designation.
Bonnie R. Schlueter, Esq.
Mary Beth Buchanan, Esq. (Argued)
Office of United States Attorney
633 United States Post Office &
Courthouse
Pittsburgh, PA 15219
Attorneys for Appellee
OPINION OF THE COURT
BECKER, Chief Judge.
Ray Donald Loy is currently serving a 33-month term of
imprisonment following his conviction for receiving and
possessing child pornography. After being r eleased from
prison, he will be required to serve thr ee years of
supervised release, subject to several special conditions,
two of which are at issue in this appeal. Thefirst condition
prohibits Loy from possessing "all for ms of pornography,
including legal adult pornography." The second condition
bars Loy from having unsupervised contact with minor
children, and further specifies that the r equisite
supervision must come from someone other than his wife.
Loy challenges these conditions, arguing that the
pornography condition is vague and overbr oad, and that
the condition restricting contact with minors is not only
vague and unsupported by the record, but could also
potentially inhibit Loy's ability to have and raise his own
children, in violation of his rights of pr ocreation and
familial integrity.
At the threshold, we must address the government's
contention that Loy's challenge to the pornography
condition should not be addressed befor e an attempt has
been made to enforce its terms. W e disagree, holding that
the challenge is properly made at this time. W e therefore
turn to the merits of Loy's arguments, and conclude that
the prohibition on pornography is unconstitutionally vague
because it fails to provide any method for Loy or his
probation officer to distinguish between those items that
are merely titillating and those items that are
2
"pornographic"; nor, in fact, does the prohibition even
provide any guidance as to whether the r estriction extends
only to visual materials, or whether purely textual works
and sound recordings fall within its scope. Therefore, we
vacate this condition and remand to the District Court so
that it may, if it so chooses, impose a new condition in
accordance with the standards we set forth.
As for the restriction on contact with minors, we
conclude that, although the condition might ar guably
extend to Loy's own (infant) children should he sire any
upon his release from prison and befor e the three-year term
of supervised release ends, given the lack of evidence to
suggest that such an unlikely interpretation was intended
by the District Court (and the constitutional questions that
such an interpretation would raise), we will construe this
condition not to extend to any children that Loy might have
for the brief period of time that would be involved. We also
construe the condition not to extend to accidental or
unavoidable contact with children, such as might occur in
public arenas. So construed, we uphold the condition as
written and find that it comports with statutory and
constitutional requirements.
I. Facts and Procedural History
This is the second time Loy has asked us to r eview the
special conditions imposed on his supervised r elease. The
following facts are taken largely verbatim from our decision
in Loy's first appeal. See United States v. Loy, 191 F.3d
360, 362-64 (3d Cir. 1999). Of course, we have
supplemented our previous factual discussion as necessary
to reflect developments that have occurr ed in the interim.
In 1997, the United States Postal Inspection Service and
the Pennsylvania State Attorney General's Office conducted
a joint undercover child pornography investigation. As part
of that investigation, Special Agent Dave Guzy of the
Attorney General's Office placed an advertisement in a
sexually explicit magazine that, in a roundabout way,
invited readers to trade pornographic materials involving
children. The advertisement directed inter ested parties to
respond in writing to Postal Inspector Thomas Kochman,
3
although Kochman's affiliation with the Inspection Service
obviously was not disclosed. On March 6, 1997, Ray
Donald Loy wrote to Kochman indicating that he and his
wife, Maria, both collected child pornography, and
expressing an interest in trading tapes. Loy stated that if
Kochman was serious about trading, he should call Loy so
that they could discuss it over the telephone.
On March 17, 1997, Kochman monitored and r ecorded a
call placed by Guzy to Loy. During that conversation, Loy
gave detailed descriptions of some of the tapes in his
collection, and told Guzy that he could "put together" tapes
for trading. He also represented that he traded with many
people and offered to give Guzy their names. Loy described
how he had produced videos by hiding a camcor der in his
bag and filming up the skirts of young girls as they rode the
escalators at a mall, and, in the course of the conversation,
Loy specified that he was interested in r eceiving material
involving girls ranging from age eight to age thirteen. He
specifically requested that Guzy send him a tape of girls
between the ages of eight and ten in a bathtub ("Bath Time
video"), which Guzy agreed to do. On April 28, 1997,
Kochman received a letter from Loy bearing the return
address of R. Loy, P.O. Box 114, Langeloth, Pennsylvania
15054. Again, Loy asked that the Bath Time video be sent
to him. In exchange, Loy offered to send a video of twelve-
and thirteen-year-old children engaged in sexually explicit
conduct.
On May 6, 1997, Postal Inspector Thomas Clinton
delivered the package containing the Bath T ime video to
Loy's post office box in Langeloth and observed Loy accept
delivery of the package. Other agents maintained
surveillance of Loy as he left the post office and returned
home with the package. Loy was observed entering his
residence with the package in his possession. Clinton then
executed a previously obtained search warrant, seizing from
Loy's residence the Bath Time videotape as well as another
tape depicting child pornography, fifteen computer disks
containing child pornography, fifty videocassettes, several
pornographic magazines, a VCR, and a television set.
Clinton also seized various letters describing Loy's
solicitation of child pornography and his of fers to trade
such materials.
4
In September 1998, Loy pled guilty to one count of
knowingly receiving child pornography thr ough the United
States mail in violation of 18 U.S.C. S 2252(a)(2). He had
also been indicted on one count of violating S 2252(a)(4)(B).
At the time, Section 2252(a)(4)(B) made it a crime to
knowingly possess: (1) three or more items; (2) containing
visual depictions; (3) produced using materials transported
in interstate and foreign commerce; (4) if production of the
materials involved the use of minors engaging in sexually
explicit conduct. See 18 U.S.C.A. S 2252(a)(4)(B) (West
1997). Prior to entering his plea, Loy had challenged the
S 2252(a)(4)(B) count by filing a motion to suppress the
evidence on which it was based. The District Court denied
the motion, and Loy then entered a conditional guilty plea
on the S 2252(a)(4)(B) count that preserved his right to
appeal from the denial.
The District Court sentenced Loy to a 33-month ter m of
imprisonment, followed by three years of supervised
release. Additionally, the court imposed special conditions
on Loy's supervised release, requiring him, inter alia, to
undergo testing and treatment for drug and alcohol abuse,
prohibiting him from having unsupervised contact with
minors, and forbidding him from possessing por nography of
any type. Loy objected to these special conditions, arguing
that they were not supported by the recor d and that they
violated his fundamental rights. In the first appeal, we
upheld the denial of Loy's motion to suppress and the
condition requiring drug testing, but r emanded the case to
the District Court to state its reasons why the remaining
conditions had been imposed. See Loy, 191 F .3d at 369-71.
Following remand, the District Court enter ed an order
amending Loy's sentence to eliminate the condition that he
undergo testing and treatment for alcohol abuse while on
supervised release. The court then reimposed the
conditions barring Loy from possessing por nography of any
type, as well as from having any unsupervised contact with
minors, adding the further requirement that any
supervision must come from someone other than his wife.
In reimposing these conditions, the court explained that
because "it is sometimes impossible to dif ferentiate between
children and adults in pornographic materials," the former
5
condition was necessary to protect childr en who are
victimized in child pornography as well as to deter Loy from
further criminal conduct or from attempting to obtain
illegal child pornography. The latter condition was imposed
to protect the minors with whom Loy might come into
contact, and to deter Loy from attempting to cr eate
"sexually explicit depictions of children." Loy now appeals
for a second time, from an amended judgment of sentence
entered in the District Court for the W estern District of
Pennsylvania. The District Court had jurisdiction pursuant
to 18 U.S.C. S 3231, which grants the district courts
jurisdiction over all offenses against the laws of the United
States. We have jurisdiction to review the District Court's
final order pursuant to 28 U.S.C. S 1291 and 18 U.S.C.
S 3742(a).
II. Standard of Review
A sentencing court's decision to impose conditions of
supervised release is reviewed for abuse of discretion. See
United States v. Loy, 191 F.3d 360, 370 n.7 (3d Cir. 1999)
(citing United States v. Crandon, 173 F .3d 122, 127 (3d
Cir.), cert. denied, 120 S. Ct. 138 (1999)). A condition is
within the court's discretion if two criteria are met. First,
the condition must be reasonably related to the factors set
forth in 18 U.S.C. S 3553(a)(1) & (2)(B)-(D). Accordingly, in
imposing conditions of supervised release, the sentencing
court may consider: (1) the nature and cir cumstances of
the offense and the history and characteristics of the
defendant; and (2) the need for the condition to deter future
criminal conduct, protect the public, and pr ovide the
defendant with necessary training, medical car e, or other
correctional treatment. See 18 U.S.C. S 3553(a)(1) & (2)(B)-
(D); see also Loy, 191 F.3d at 370.
Second, a condition must involve no greater deprivation
of liberty than is reasonably necessary to achieve the
deterrence, public protection and/or corr ectional treatment
for which it is imposed. See 18 U.S.C. S 3583(d)(2). Further,
a condition that restricts fundamental rights must be
"narrowly tailored and . . . dir ectly related to deterring [the
defendant] and protecting the public." Crandon, 173 F.3d at
128.
6
III. The Challenge to the Pornography Prohibition
A. Justiciability
Before reaching the merits of Loy's claim, we must
address the government's contention that Loy's challenge to
the pornography proscription is not justiciable. The
government advances several arguments on this score,
implicating both the ripeness doctrine and standing
considerations. Relying on United States v. Thomas, 198
F.3d 1063, 1065 (8th Cir. 1999) (holding that a prisoner's
challenge to a condition of supervised release was
premature because he would "not be subject to the
condition for nearly a decade, during which time any
number of events may occur that would make the condition
irrelevant"), the government explains that, inter alia, an
incarcerated prisoner may no longer have the same interest
in engaging in the prohibited activity upon r elease from
prison, and further, that vagueness challenges to conditions
of supervised release are prematur e until those conditions
have been interpreted by a probation officer. The
government now asks that, "[a]s a matter of judicial policy,"
we refrain from entertaining due pr ocess challenges to
conditions of supervised release prior to a violation of those
conditions. Although the government avoids the words, it
essentially asks us to hold that Loy's challenge fails to meet
the prudential aspects of ripeness.
Additionally, in recommending that we adopt a judicial
policy of refusing to hear due process challenges to
unenforced conditions of release, the government also relies
on the standing requirements typically necessary to mount
vagueness challenges to statutes that do not infringe
constitutionally protected rights. Thus, citing Parker v.
Levy, 417 U.S. 733 (1974), the government has argued that
because vagueness challenges may typically only be made
in the context of particular purported violations, Loy must
wait until he is facing revocation proceedings before he will
be able to raise his claim. We will addr ess each of these
arguments in turn, ultimately holding that Loy's claim is
not only justiciable, but, in fact, consideration at this time
promotes judicial efficiency and is in keeping with the
7
demonstrated congressional intent that sentences be
reviewed on direct appeal.
1. Ripeness
In United States v. Stine, 646 F.2d 839 (3d Cir. 1981),
this Court held that a defendant who failed to appeal a
probation condition at the time it was enter ed against him
was barred from lodging a facial attack on the condition as
a defense in a revocation proceeding. See id. at 846-47. In
so doing, we observed that "the federal courts have
uniformly permitted defendants sentenced to probation to
challenge the validity of their probation conditions on direct
appeal." Id. at 846 n.16. In United States v. Ofchinick, 937
F.2d 892 (3d Cir. 1991), we reaffirmed Stine, holding that a
challenge to a condition of supervised release mounted
immediately after the sentence met the Article III test for
ripeness. Our holding in Ofchinick was based in part on the
fact that, if the defendant waited until revocation
proceedings to challenge the condition, he would likely be
found to have waived his right to object. See id. at 897. In
that case, we characterized as "illogic[al]" the government's
position that a probationer must risk incar ceration in order
to challenge a condition. See id. at 897 n.5.
Although helpful in guiding our approach to the issue,
these cases do not explicitly address the "prudential"
ripeness doctrine. That doctrine is intended to"prevent the
courts . . . from entangling themselves in abstract
disagreements over administrative policies, and also to
protect the agencies from judicial inter ference until an
administrative decision has been formalized and its effects
felt in a concrete way." Abbott Labs. v. Gardner, 387 U.S.
136, 148 (1967). In determining whether a claim is ripe, a
court must look at: (1) "the hardship to the parties of
withholding court consideration"; and (2) thefitness of the
legal issue for judicial review. Id. at 149; see also Artway v.
Attorney General of N.J., 81 F.3d 1235, 1247 (3d Cir. 1996).
In view of the government's contentions, we analyze this
case in terms of these elements of the prudential ripeness
doctrine.
8
a. Hardship to Parties
The essence of Loy's claim is that not knowing the scope
of the pornography proscription is, in itself, a hardship. He
argues that because of the vagueness, he will not know
what he can and cannot view. If, as the gover nment argues,
he must wait until he is arrested to lear n whether or not he
has violated the condition, the hardship to him is apparent.
As we held in Pennsylvania Department of Public Welfare v.
United States Department of Health & Human Services , 101
F.3d 939 (3d Cir. 1996), the fact that a party may be forced
to alter his behavior so as to avoid penalties under a
potentially illegal regulation is, in itself, a hardship. In so
doing, we opined that an argument to the contrary would
be
like saying that an increase in the inter est rate charged
for late payments on a credit card pr esents no
hardship to the customer because the customer has
not yet made a delayed payment under the new and
higher interest rate. We disagree with that premise.
Instead, we think it more likely that the customer will
have to change his behavior at the time he is infor med
of the rate hike in order to avoid the risk of having to
pay the higher interest rate and hence will suf fer a
direct hardship at the time of the rate hike. The fact
that the new, higher interest rate is a contingent future
charge does not preclude it from causing harm to the
party at the time it is put into place.
Id. at 946.
In addition, the government's blanket r equirement that
Loy face revocation proceedings befor e being permitted to
challenge his conditions of release is at odds with the
Supreme Court's pronouncement in Stef fel v. Thompson,
415 U.S. 452 (1974), where the Court stated that "it is not
necessary that petitioner first expose himself to actual
arrest or prosecution to be entitled to challenge a statute
that he claims deters the exercise of his constitutional
rights." Id. at 459.
b. Fitness for Judicial Review
An examination of the "fitness for judicial r eview" of a
particular claim requires that a court look at the nature of
9
the question presented. Therefore, we will examine
"whether or not the question is purely legal and easy to
resolve." Pennsylvania Dep't of Pub. W elfare v. United States
Health & Human Servs., 101 F.3d 939, 945 (3d Cir. 1996).
As we have said, "[t]he more that the question presented is
purely one of law, and the less that additional facts will aid
the court in its inquiry, the more likely the issue is to be
ripe, and vice-versa." Artway v. Attor ney General of N.J., 81
F.3d 1235, 1249 (3d Cir. 1996).
In this case, the question is purely one of law: whether
the pornography proscription is unconstitutionally vague
and does not provide Loy with sufficient notice of what he
may do. Nothing about this contention will change between
now and the time when he is released fr om prison. The
government would prefer that we addr ess Loy's challenge in
the context of a particular magazine or other publication
(an argument that has the perverse quality of asking us to
refuse to rule on Loy's vagueness challenge because the
condition is too vague to analyze). Although such
contextual grounding would indeed allow us to determine
whether or not the particular publication at issue fell within
the condition, it would not in any way assist in the more
general analysis of whether the condition pr ovides Loy with
sufficient warning to "know what is pr ohibited, so that he
may act accordingly" in his day-to-day activities. Grayned v.
City of Rockford, 408 U.S. 104, 108 (1972). The
government's approach would have Loy discover the
meaning of his supervised release condition only under
continual threat of reimprisonment, in sequential hearings
before the court. Such an exercise is not necessary, nor will
it clarify the issues.
c. Congressional Intent
In Abbott Laboratories, the Supreme Court held that
congressional intent is an important component of the
prudential ripeness inquiry. See Abbott Labs. v. Gardner,
387 U.S. 136, 139-40 (1967). The legislative history of the
Sentencing Reform Act of 1984 evidences Congr ess's
intention that direct appellate review be the preferred
method of reviewing a district court's sentence. See S. Rep.
No. 98-225, at 151 (1984), reprinted in 1984 U.S.C.C.A.N.
10
3182, 3334 (noting, in the context of a discussion of
procedures for direct appellate r eview of sentences, that
"most Western nations . . . consider review at the behest of
either the defendant or the public to be a fundamental
precept of a rational sentencing system, and the Committee
considers it to be a critical part of the foundation for the
bill's sentencing structure"); id. at 154, reprinted in 1984
U.S.C.C.A.N. at 3337 ("The Committee intends that a
sentence be subject to modification through the appellate
process. . . ."). Section 3742 of Title 18 of the United States
Code, which allows for appellate review of sentences, was
added in 1984 as part of the congressional scheme to
ensure greater uniformity in sentencing. See S. Rep. No.
98-225, at 150, reprinted in 1984 U.S.C.C.A.N. at 3333.
This change from the previous regime, which provided for
no such review, demonstrates the extent to which Congress
felt that the appellate process was an integral part of the
formulation of the sentence. Cf. id. at 151, reprinted in
1984 U.S.C.C.A.N. at 3334 ("Appellate review of sentences
is essential to assure that the guidelines ar e applied
properly and to provide case law development of the
appropriate reasons for sentencing outside the guidelines.
This, in turn, will assist the Sentencing Commission in
refining the sentencing guidelines. . . ."). Thus, the
legislative history of the current sentencing scheme
demonstrates Congress's intention that appellate courts
consider the legality of conditions of supervised r elease at
the time of their imposition, rather than only in the context
of an appeal from a revocation proceeding.
2. Standing
The government alternatively contends that Loy does not
have standing to raise his claim, on the ground that "[o]ne
to whose conduct a statute clearly applies may not
successfully challenge it for vagueness." Parker v. Levy, 417
U.S. 733, 756 (1974). The government submits that Loy
cannot be heard until the condition has been applied to his
specific conduct. However, there ar e crucial differences
between the context in which Loy presents his challenge
and the contexts in which the traditional standing
requirements for vagueness challenges wer e developed.
11
A typical vagueness challenge is brought as a defense to
a criminal charge, and can only be raised by a defendant
whose own conduct arguably did not fall within the terms
of the statute, thus allowing the defendant to claim that the
lack of fair notice led to a deprivation of liberty without due
process of law. See, e.g., United States v. National Dairy
Prods. Corp., 372 U.S. 29, 32-33 (1963) ("Void for
vagueness simply means that criminal responsibility should
not attach where one could not reasonably understand that
his contemplated conduct is proscribed. In determining the
sufficiency of the notice a statute must of necessity be
examined in light of the conduct with which a defendant is
charged." (citations omitted)). A defendant whose conduct is
at the "core" of the activities clearly covered by the statute's
terms may only raise a vagueness defense if the statute is
one that is likely to chill the exercise of constitutionally
protected conduct. See United States v. Mazurie, 419 U.S.
544, 550 (1975) ("It is well established that vagueness
challenges to statutes which do not involve First
Amendment freedoms must be examined in light of the
facts of the case at hand.").1Vagueness claims are therefore
subject to different standing requir ements depending on
the nature of the statute or rule under attack. 2
As a convicted felon sentenced to a term of supervised
release, Loy's constitutional rights do not have the same
_________________________________________________________________
1. See also Kolender v. Lawson, 461 U.S. 352, 359 n.8 (1983) (holding
that facial vagueness challenges are per missible where "a law reaches a
substantial amount of constitutionally protected conduct" (citation
omitted)); Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S.
489, 494-95 (1982) (noting that, if a statute "implicates no
constitutionally protected conduct," a pr eenforcement challenge can
succeed on vagueness grounds only if the statute is "impermissibly
vague in all of its applications"); Young v. American Mini Theatres, Inc.,
427 U.S. 50, 59-60 (1976) ("[I]f the statute's deterrent effect on
legitimate
expression" is "real and substantial," parties may challenge the statute
"even though there is no uncertainty about the impact . . . on their own
rights.").
2. When a statute is vague and arguably involves protected conduct,
vagueness analysis will necessarily intertwine with overbreadth analysis.
See Hoffman Estates, 455 U.S. at 494 n.6 ("[A] court should evaluate the
ambiguous as well as the unambiguous scope of the enactment. To this
extent, the vagueness of a law affects overbr eadth analysis.").
12
scope as those of ordinary persons. See United States v.
Consuelo-Gonzalez, 521 F.2d 259, 265 & n.14 (9th Cir.
1975) (observing that "probationers, like parolees and
prisoners, properly are subject to limitations from which
ordinary persons are free" and that "[m]erely because a
convicted individual's fundamental rights ar e involved
should not make a probation condition . . . automatically
suspect"). In evaluating constitutional challenges to
probation conditions, we have upheld conditions that are
"directly related to deterring [the offender] and protecting
the public," even when First Amendment inter ests are at
stake. United States v. Crandon, 173 F .3d 122, 128 (3d
Cir.), cert. denied, 120 S. Ct. 138 (1999). The government,
asserting that in the context of supervised r elease there is
no "protected" conduct to chill, asks us to apply the more
stringent standing rules to Loy's vagueness and
overbreadth challenge, requiring him either to mount his
challenge in the context of a particular purported violation
so that we can assess whether the condition is vague or
overbroad with respect to that violation, or, presumably, to
demonstrate that the condition is vague in all of its
applications. But the government fails to r ecognize there
are important differences between a probationer on
supervised release and a member of the general public that
affect the standing analysis.
To begin with, a defendant charged with violating a
release condition, unlike a defendant char ged with violating
a statute, does not enjoy "the full panoply of rights"
normally available in a criminal proceeding. Morrissey v.
Brewer, 408 U.S. 471, 480 (1972). For instance, defendants
in revocation proceedings face a lower standard of proof,
see 18 U.S.C. S 3583(e) (permitting revocation if a court
finds, by a preponderance of evidence, that a condition has
been violated); a greater range of evidence that may be
admissible against them, see United States v. Bazzano, 712
F.2d 826, 829 (3d Cir. 1983) (en banc) (per curiam) (no
exclusionary rule in revocation proceedings); United States
v. McCallum, 677 F.2d 1024, 1026 (4th Cir . 1982)
(permitting hearsay evidence in revocation proceedings); a
lack of a jury right, see Gagnon v. Scarpelli , 411 U.S. 778,
789 (1973); and no right against self-incrimination, see
United States v. Conte, 99 F.3d 60, 66 (2d Cir. 1996). The
13
fewer procedural protections available at a revocation
proceeding, as opposed to a trial, make it far more
hazardous for a releasee to wait until a condition has been
enforced in order to test its validity.
Secondly, persons under conditions of supervised r elease
are presumably more likely to be"prosecuted" for their
violations--these conditions are, after all, special "laws"
tailored only to them. Loy, as a felon on supervised release,
is in far more danger as the peculiar tar get of a "law"
applicable only to him than he would be as a member of
the general public mounting a challenge to a law that might
never be applied to his conduct. Cf. Poe v. Ullman, 367 U.S.
497, 501 (1961) (plurality opinion) (refusing to entertain, on
prudential justiciability grounds, a challenge to
Connecticut's ban on the use of contraceptives, observing
that "[d]uring the more than thr ee-quarters of a century
since [the law's] enactment, a prosecution for its violation
seems never to have been initiated" except in a single
instance).
Further, because the condition is unique to Loy, there is
no likelihood of a general groundswell of support for a
change in the "law." Therefore, limits on standing that have
been advanced in cases like United States v. Richardson,
418 U.S. 166, 175 (1974) (no "taxpayer standing" to
challenge a statute mandating that CIA expenditur es be
kept secret), on the ground that "generalized grievances"
are more appropriately addressed through the political
process, are inapplicable to challenges to conditions of
supervised release. And because the condition is applicable
only to Loy, there is no chance that an "enforcement policy"
will provide guidance as to the condition's contours.
Hoffman Estates, 455 U.S. at 502.
On a broader level, it should be remember ed that all of
the justiciability doctrines--standing, ripeness, and
mootness--stem in part from a desire to allow the other
branches of government to engage in their nor mal process
of lawmaking before invoking the judicial power to stop
such efforts in their tracks. For instance, in Abbott
Laboratories v. Gardner, 387 U.S. 136 (1967), the Supreme
Court explained that the ripeness doctrine in part serves to
"protect the agencies from judicial interference until an
14
administrative decision has been formalized." Id. at 148.
Similarly, in Lujan v. Defenders of Wildlife, 504 U.S. 555
(1992), the Court held that the citizen-suit pr ovisions of the
Endangered Species Act, which conferred standing on "any
person" to sue United States instrumentalities to force
compliance with the Act, represented an unconstitutional
attempt by Congress to breach the separation of powers by
policing the activities of the Executive branch. See id. at
576-77; see also Poe, 367 U.S. at 503 ("In part [the
justiciability rules] derive from the fundamental federal and
tripartite character of our National Government and from
the role--restricted by its very r esponsibility--of the federal
courts . . . within that structure.").
In the context of the supervised release, however, the
condition applicable to a particular prisoner--that is, the
"law" being challenged--is created by the judiciary, within
the jurisdictional boundaries set by Congress. No protection
is accorded other divisions of government when we stay our
hand; in fact, by doing so, we actively impede the proper
process of lawmaking. Congress has entrusted the
responsibility for formulating appr opriate conditions of
release to the judiciary, and has provided specific statutory
permission for offenders to obtain appellate review of their
sentences at 18 U.S.C. S 3742(a). Ther efore, judicial review
of criminal sentences is an integral part of the pr ocess of
creating these individual "laws," and just as legislation is
only enacted pursuant to bicameralism and pr esentment,
see INS v. Chadha, 462 U.S. 919, 954-55 (1983), so too
criminal sentences are formulated in part through the
appellate process. To refuse to r eview such a condition
would be to impede this process of judicial lawmaking.
3. Judicial Efficiency
Our position also promotes judicial efficiency. See, e.g.,
Allstate Ins. Co. v. Wayne County, 760 F .2d 689, 696 (6th
Cir. 1985) (holding that the ripeness inquiry includes
considerations of judicial economy); Independent Bankers
Ass'n of Am. v. Smith, 534 F.2d 921, 928 (D.C. Cir. 1976)
(same). Loy is pursuing, as a routine matter , his appellate
right to challenge a final order of the District Court. We
review these conditions all the time, and, as a prudential
15
matter, it makes sense to review them at this stage. Just
last year, we reviewed the conditions of a supervised release
in United States v. Crandon, 173 F.3d 122, 128 (3d Cir.),
cert. denied, 120 S. Ct. 138 (1999), and upheld a condition
prohibiting the defendant access to the inter net after he
was convicted of receiving child pornography. The
government's approach merely ensur es multiple
adjudications as defendants appeal parts of their sentences
immediately--as, indeed, they must do under United States
v. Stine, 646 F.2d 839 (3d Cir. 1981)--and parts of them
later on. Cf. FTC v. Standard Oil Co., 449 U.S. 232, 242
(1980) (ripeness doctrine is intended to prevent "piecemeal
review" and to ensure judicial efficiency).
4. Summary
Thus, (1) we have "case or controversy" jurisdiction; (2)
the issues are legal ones that we can easily r esolve without
reference to concrete facts; (3) the defendant will experience
a hardship if we do not resolve the issues; (4) the
traditional canons that counsel against hearing these sorts
of challenges are inapplicable in the context of supervised
release conditions; and (5) the judicial system has an
interest in dealing with this case as expeditiously as
possible, instead of waiting for a distinct appeal of a
conviction for a violation of the conditions of r elease.
Therefore, the case is ripe, and we will r each the merits of
Loy's challenge.
B. The Jurisprudence
The District Court ordered that, as a condition of his
supervised release, Loy be prohibited"from possessing all
forms of pornography, including legal adult pornography, in
order to: (1) protect the children that are victimized in the
production of child pornography; and (2) deter defendant
from engaging in additional criminal conduct." Loy claims
that the District Court's order is unconstitutionally vague,
because "[t]he term ``pornography' lacks a legal definition"
and "fails to give Mr. Loy notice of which materials he may
not possess."
16
The constitutional requirement that laws be reasonably
precise as to the scope of prohibited conduct serves three
distinct purposes:
First, because we assume that man is free to steer
between lawful and unlawful conduct, we insist that
laws give the person of ordinary intelligence a
reasonable opportunity to know what is pr ohibited, so
that he may act accordingly. . . . Second, . . . [a] vague
law impermissibly delegates basic policy matters to
policemen, judges, and juries for resolution on an ad
hoc and subjective basis. . . . Third . . . where a vague
statute abuts upon sensitive areas of basic First
Amendment freedoms, it operates to inhibit the
exercise of [those] freedoms.
Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972)
(internal citations and quotation marks omitted). A statute
violates due process of law if it "either forbids or requires
the doing of an act in terms so vague that men of common
intelligence must necessarily guess at its meaning and
differ as to its application." Connally v. General Constr. Co.,
269 U.S. 385, 391 (1926); see also United States v.
Pungitore et al., 910 F.2d 1084, 1104 (3d Cir. 1990). The
same principles apply to a condition of supervised r elease.
See, e.g., United States v. Schave, 186 F.3d 839 (7th Cir.
1999) (citing Birzon v. King, 469 F.2d 1241, 1243 (2d Cir.
1972)); LoFranco v. United States Parole Comm'n, 986 F.
Supp. 796, 810-11 (S.D.N.Y. 1997).
Courts have long grappled with the problem of generating
definitions to facilitate the regulation of sexually explicit
materials. In 1957, the Supreme Court held that"obscene"
speech is beyond the coverage of the First Amendment. See
Roth v. United States, 354 U.S. 476, 485 (1957). For years
afterward, the Court struggled to find a definition of
"obscenity," see, e.g., Memoirs v. Massachusetts, 383 U.S.
413 (1966); Redrup v. New York, 386 U.S. 767 (1967); Kois
v. Wisconsin, 408 U.S. 229 (1972) (per curiam), finally
settling on the now-familiar Miller test, see Miller v.
California, 413 U.S. 15 (1973). In or der for a work to fall
outside the scope of the First Amendment, it must: (1)
taken as a whole, according to community standards,
appeal to the "prurient interest," (2) depict, "in a patently
17
offensive way," sexual conduct as defined by state law, (3)
when taken as a whole, lack "serious literary, artistic,
political, or scientific value." Id. at 24. "Sexually-oriented
work is not obscene unless all three elements of the Miller
test are satisfied." United States v. Various Articles of
Obscene Merchandise, Schedule No. 2102, 709 F.2d 132,
135 (2d Cir. 1983).
The determination whether a particular work is"obscene"
under the Miller test is an exacting inquiry. Though
"community standards" are used to determine whether a
work is patently offensive, see Smith v. United States, 431
U.S. 291, 301 (1977), a "reasonable person" standard must
be used to determine whether a work lacks serious merit,
see Pope v. Illinois, 481 U.S. 497, 500-501 (1987).
"Prurience," for Miller purposes, does not include an appeal
to "normal, healthy sexual desires," but only includes
"material whose predominate appeal is to a shameful or
morbid interest in nudity, sex, or excr etion," Brockett v.
Spokane Arcades, Inc., 472 U.S. 491, 498 (1985) (internal
quotation marks omitted). "Sexual conduct" can include
"lewd exhibition of the genitals," but a distinction must be
made between exhibitions that are lewd and those that are
not lewd, because "nudity alone is not enough to make
material legally obscene." United States v. V arious Articles of
Merchandise, Schedule No. 287, 230 F .3d 649, 657 (3d Cir.
2000) (quoting Jenkins v. Georgia, 418 U.S. 153, 161 (1974)).3
And, as we recently held, the Miller test's protection for
works of serious political value "is broad enough to
encompass that which might tend to bring about ``political
and social changes.' " Various Articles of Merchandise, 230
F.3d at 658 (holding that nudist magazines ar e not obscene
because, inter alia, they "champion nudists' alternative
lifestyle").
Many items that would almost certainly fall under the
general rubric of "pornography" may not be captured by
Miller's prongs. See, e.g., V arious Articles of Obscene
_________________________________________________________________
3. Indeed, the panel concluded that the subjects of the nude
photographs at issue in Various Articles of Merchandise were not "posed
in a way ``suggestive of moral looseness.' " Various Articles of
Merchandise, 230 F.3d at 657.
18
Merchandise, 709 F.2d at 137 (upholding trial court
determination that the film Deep Thr oat was not patently
offensive by the community standards of New York);
Penthouse Int'l, Ltd. v. McAuliffe, 610 F .2d 1353, 1373 (5th
Cir. 1980) (holding that the January 1978 issue of
Penthouse, but not Playboy, was obscene). In American
Booksellers Association, Inc. v. Hudnut, 771 F .2d 323 (7th
Cir. 1985), the court examined a statute that specifically
defined the term "pornography," noted the disjunction
between what is "pornographic" and what is "obscene," and
struck down, on First Amendment grounds, a pr ohibition
on the former but not the latter. See id. at 334.
As is demonstrated by the foregoing discussion, although
the scope of the term "obscenity" has been exhaustively
examined (and even the term "indecency" has been given a
specific definition by the FCC, see FCC v. Pacifica Found.,
438 U.S. 726, 731-32 (1978)), the term "por nography,"
unmoored from any particular statute, has never received a
precise legal definition from the Supr eme Court or any
other federal court of appeals, and remains undefined in
the federal code.4 The Supr eme Court in Miller used only a
footnoted dictionary reference for its own definition. See
Miller, 413 U.S. at 19 n.2 (defining por nography as "a
description of prostitutes or prostitution" with a secondary
meaning of "a depiction (as in writing or painting) of
licentiousness or lewdness: a portrayal of er otic behavior
designed to cause sexual excitement" (quoting Webster's
Third New International Dictionary (1969)). Further, in the
context of Loy's supervised release, in or der to comport
with First Amendment standards, the prohibition on
pornography must be narrowly tailor ed to serve the goals of
advancing Loy's rehabilitation and protecting the public.
See Part II, supra.
_________________________________________________________________
4. Although federal law contains a definition of child pornography, see
18 U.S.C. S 2256, the release condition imposed here cannot be
presumed to track that statute, as the condition explicitly prohibits
"legal adult pornography." Further , the condition does not limit its
reach
to visual works, as does federal law.
19
C. Discussion
1. Pornography's Meaning
The word pornography is derived fr om the Greek
pornographos, which meant "writing of harlots." (Porne =
harlot and graphos = writing). Accor ding to the Oxford
English Dictionary (1986), pornography is defined as "1. . . .
a description of prostitutes or of prostitution, as a matter of
public hygiene. . . . 2. Description of the life, manners, etc.,
of prostitutes and their patrons; hence, the expression or
suggestion of obscene or unchaste subjects in literature or
art; pornographic literature or art." According to Merriam-
Webster's Collegiate Dictionary (1999), pornography is "1:
the depiction of erotic behavior (as in pictur es or writing)
intended to cause sexual excitement 2: material (as books
or a photograph) that depicts erotic behavior and is
intended to cause sexual excitement 3: the depiction of acts
in a sensational manner so as to arouse a quick intense
emotional reaction." The Funk & W agnalls New Standard
Dictionary of the English Language (1941) defines
pornography as "1. Description of pr ostitutes and of
prostitution as related to public hygiene. 2. The expression
or suggestion of the obscene in speaking, writing, etc.;
licentious art or literature." The W ebster's Third New
International Dictionary definition was quoted in Part III.B,
supra.
Though these various definitions are instructive in a
general way, they clearly lack the greater pr ecision of the
Miller test for obscenity. Unlike instances of obscenity, we
could easily set forth numerous examples of books and
films containing sexually explicit material that we could not
absolutely say are (or are not) por nographic. One such
example, as discussed below, might be Playboy , which
features nudity but not sexual conduct. It is also difficult to
gauge on which side of the line the film adaptations of
Vladimir Nabokov's Lolita would fall, or if Edouard Manet's
Le Dejeuner sur L'Herbe is pornographic (or even some of
the Calvin Klein advertisements), and we certainly cannot
know whether the pornography condition is r estricted only
to visual materials, or whether it encompasses pur e text
and sound recordings. In Farrell v. Burke, No. 97 CIV.
20
5708(DAB), available in 1998 WL 751695 (S.D.N.Y. Oct. 28,
1998), the district court described a situation in which a
parole condition prohibiting "por nography" was interpreted
by a parole officer to apply equally to Playboy and to
photographs of Michelangelo's David. Similarly, the Court of
Appeals for the Seventh Circuit, examining the scope of a
statutory definition of pornography, observed that it could
encompass everything "from hard-cor e films to W.B. Yeats's
poem ``Leda and the Swan.' " American Booksellers Ass'n v.
Hudnut, 771 F.2d 323, 327 (7th Cir . 1985). Although the
propriety of affixing the title "por nography" to any of these
items could foster debate, the debate would r emain
undecided. Put differently, with r egard to "pornography"
rather than "obscenity," we do not "know it when we see it."
Additionally, as we observed in United States v. Crandon,
173 F.3d 122, 128 (3d Cir.), cert. denied, 120 S. Ct. 138
(1999), to avoid First Amendment infirmity, a probation
condition must be "narrowly tailored" and "directly related"
to the goals of protecting the public and pr omoting Loy's
rehabilitation -- thus, the condition must not extend to all
arguably pornographic materials, but only to those that fall
into this subset. Even the government conceded in its
supplemental brief that it does not know whether Playboy
is part of this group, which is, in fact, a change from its
position, taken during oral argument, that Playboy
absolutely constituted "pornography." 5 Loy, then, can
hardly be expected to be able to discer n, in advance, which
materials are prohibited, with no mor e than the
constitutional standard of permissible r estrictions to guide
him. Cf. Laurence H. Tribe, American Constitutional Law
(2d ed. 1988) S 12-29, at 1031 ("[T]he Constitution does
_________________________________________________________________
5. The government argues that a condition of supervised release is akin
to a prison regulation, and thus, because por nography is routinely
forbidden in prisons, such a restriction can be freely applied to Loy.
This
contention is patently without merit, as it flatly contradicts the Supreme
Court's statement in Morrissey v. Brewer , 408 U.S. 471 (1972), that
"[t]he liberty of a parolee enables him to do a wide range of things open
to persons who have never been convicted of any crime. . . . Though the
state properly subjects him to many restrictions not applicable to other
citizens, his condition is very differ ent from that of confinement in a
prison." Id. at 482.
21
not, in and of itself, provide a bright enough line to guide
primary conduct, and . . . a law whose reach into protected
spheres is limited only by the background assurance that
unconstitutional applications will eventually be set aside is
a law that will deter too much. . . .") (emphasis removed).6
For all of these reasons, the pornography condition runs
afoul of the due process values that the vagueness doctrine
is meant to protect, and, to the extent that Loy is likely to
avoid materials that are not "dir ectly related" to the goals of
rehabilitation and deterrence, the condition threatens to
chill protected conduct, as well.
2. Effects of a Scienter Requir ement
The government advances the intriguing ar gument that
the condition could be interpreted so as to include a
salvaging scienter requirement. But this cannot solve the
problem. To begin with, although pr obation or parole will
usually not be revoked for unknowing violations of
conditions of release, unless a scienter r equirement is
explicitly written into the condition (which is not the case
here), there is no way to be certain that one will be applied
during revocation proceedings. This is because release can
be revoked for reasons that have nothing to do with the
"fault" of the offender, but instead are more related to
protection of the public. See, e.g., United States v. Warner,
830 F.2d 651, 657 (7th Cir. 1987) ("If . . . probation's
purposes have been frustrated, revocation is fair and
appropriate even if the probationer did not willfully violate
_________________________________________________________________
6. In United States v. Schave, 186 F .3d 839 (7th Cir. 1999), the Seventh
Circuit avoided a vagueness problem in a condition of supervised release
that prohibited associations with white supr emacists by construing it to
encompass only those associations that "r easonably relate[d]" to the
dangers against which the condition was intended to protect. Id. at 844.
However appropriate such a measure may have been under the
circumstances of that case, a similar construction would not save the
condition here. The condition in Schave was not only more particular
than Loy's (it prohibited associations with certain well-defined groups),
but also was part of a long history of "associational" conditions that are
so common that they have acquired something of a judicial gloss as to
their scope. See Part IV, infra .
22
his probation conditions."); United States v. McLeod, 608
F.2d 1076, 1078 (5th Cir. 1979) (per curiam) ("A good faith
attempt to comply with a probation agreement is not a
controlling factor, but only one of many factors that a
District Court may consider in the exercise of its discretion
to revoke probation.").
Even if a scienter requirement wer e to be read into the
condition, however, this construction would not save it.
Though in some situations, a scienter requir ement may
mitigate an otherwise vague statute, see, e.g ., Hoffman
Estates v. Flipside, Hoffman Estates, Inc. , 455 U.S. 489,
499 (1982); Colautti v. Franklin, 439 U.S. 379, 395 (1978),
such a requirement will not cure all defects for all
purposes, see, e.g., Cramp v. Boar d of Pub. Instruction of
Orange County, 368 U.S. 278, 286 (1961) (invalidating a
loyalty oath on the ground that, notwithstanding the fact
that the oath-taker was required only to affirm that he or
she had never "knowingly" counseled or supported
Communists, the oath was too vague to be reasonably
understood); Planned Parenthood of Cent. N.J. v. Farmer,
220 F.3d 127, 138 (3d Cir. 2000) (holding that a scienter
requirement cannot save a statute criminalizing "partial-
birth abortion" where the definition of such a procedure is,
in itself, vague); Nova Records, Inc. v. Sendak, 706 F.2d
782, 789 (7th Cir. 1983) ("A scienter r equirement cannot
eliminate vagueness . . . if it is satisfied by an``intent' to do
something that is in itself ambiguous."). Indeed, a contrary
rule would rob the vagueness doctrine of all of its meaning,
for legislatures would simply repair otherwise vague
statutes by inserting the word "knowingly." See Richmond
Med. Ctr. for Women v. Gilmor e, 55 F. Supp. 2d 441, 498
(E.D. Va. 1999), aff 'd on other gr ounds, 224 F.3d 337 (4th
Cir. 2000).
3. Delegation of Power to the Probation Officer
The government suggests that the term"pornography" is
cabined by the fact that Loy could check with his pr obation
officer to gauge its applicability to a particular case.
However, although there is no question that "[i]n addition to
the bare words of the probation condition, the probationer
may be guided by further . . . instructions . . . of the . . .
23
probation officer," United States v. Romero, 676 F.2d 406,
407 (9th Cir. 1982), the sentencing court may not
wholesaledly "abdicate[ ] its judicial r esponsibility" for
setting the conditions of release, United States v.
Mohammad, 53 F.3d 1426, 1438 (7th Cir . 1995)
(invalidating an order of restitution wher e the sentencing
court allowed the probation officer to dictate the manner of
payment). A condition with no core meaning beyond
"whatever is necessary for Loy's rehabilitation" cannot be
cured by allowing the probation officer an unfettered power
of interpretation, as this would create one of the very
problems against which the vagueness doctrine is meant to
protect, i.e., the delegation of "basic policy matters to
policemen . . . for resolution on an ad hoc and subjective
basis." Grayned v. City of Rockford, 408 U.S. 104, 109
(1972); see LoFranco v. United States Par ole Comm'n, 986 F.
Supp. 796, 810 (S.D.N.Y. 1997) (holding a par ole condition
to be unconstitutionally vague because the pr ohibition on
association with "outlaw motorcycle gangs" delegated
policymaking power to the parole officer); cf. United States
v. Kent, 209 F.3d 1073, 1079 (8th Cir . 2000) (invalidating
a condition requiring probation officer to determine whether
the defendant should undergo counseling). 7 Though it is
true that "[c]ondemned to the use of wor ds, we can never
expect mathematical certainty from our language,"
Grayned, 408 U.S. at 110, without a more definitive
standard to guide the probation officer's discretion, there is
a real danger that the prohibition on por nography may
ultimately translate to a prohibition on whatever the officer
personally finds titillating. Cf. Coates v. City of Cincinnati,
402 U.S. 611, 614 (1971) (striking down a statute
punishing assemblages of persons who conducted
themselves in an "annoying" manner, on the ground that
though a city may forbid certain forms of antisocial
conduct, "[i]t cannot constitutionally do so through . . . an
ordinance whose violation may entirely depend upon
whether or not a policeman is annoyed").
_________________________________________________________________
7. A similar condition was imposed in this case; however, Loy has not
raised any challenges to it, and so we need not addr ess the question
whether this court would follow the Eighth Cir cuit reasoning regarding
the propriety of conditions that allow the pr obation officer to determine
whether a defendant is in need of counseling.
24
4. Conclusion
To be sure, we are dealing her e with an unusually broad
condition. We in no way mean to imply that courts may not
impose restrictions on the consumption of sexually explicit
materials by persons convicted of sex crimes. Indeed, we do
not expect that our holding today will greatly diminish a
district court's discretion in imposing such conditions for
the simple reason that almost any r estriction upon sexually
explicit material may well aid in rehabilitation and
protection of the public. Only in the exceptional case, where
a ban could apply to any art form that employs nudity, will
a defendant's exercise of First Amendment rights be
unconstitutionally circumscribed or chilled. A probationary
condition is not "narrowly tailored" if it restricts First
Amendment freedoms without any resulting benefit to
public safety. Here, the condition could extend not only to
Playboy magazine, but also to medical textbooks.
Restricting this entire range of material is simply
unnecessary to protect the public, and for this reason the
condition is not "narrowly tailored."
Thus, in Loy's case, to the extent that the condition
might apply to a wide swath of work ranging fr om serious
art to ubiquitous advertising, the condition is overly broad
and violates the First Amendment. To the extent that its
breadth is unclear, it is unconstitutionally vague. That said,
there is no question that the District Court could, perfectly
consonant with the Constitution, restrict Loy's access to
sexually oriented materials, so long as that r estriction was
set forth with sufficient clarity and with a nexus to the
goals of supervised release. Further, the Constitution would
not forbid a more tightly defined restriction on legal, adult
pornography, perhaps one that clarified whether it extended
non-visual materials, or that borrowed applicable language
from the federal statutory definition of child pornography
located at 18 U.S.C. S 2256(8).8
_________________________________________________________________
8. The federal statute reads:
"child pornography" means any visual depiction, including any
photograph, film, video, picture, or computer or computer-generated
image or picture, whether made or produced by electronic,
mechanical, or other means, of sexually explicit conduct, where--
25
In sum, with no guidepost for Loy, the pornography
prohibition as currently written violates due process by
failing to provide Loy with adequate notice of what he may
and may not do, chilling his First Amendment rights in the
process. The condition "forbids . . . an act in terms so
vague that men of common intelligence must necessarily
guess at its meaning and differ as to its application."
Connally v. General Constr. Co., 269 U.S. 385, 391 (1926).
IV. The Challenge to the Prohibition on
Unsupervised Contact with Minors
Conditions of supervised release must be "r easonably
related" to the goals of deterrence, pr otection of the public,
and rehabilitation of the defendant. 18 U.S.C.S 3583(d)(1).
They must also "involve[ ] no gr eater deprivation of liberty
than is reasonably necessary" to meet these goals, 18
U.S.C. S 3583(d)(2), and, as stated above, supervised release
conditions that affect constitutional rights will likely be
valid if "narrowly tailored and . . . directly related to
deterring [the offender] and protecting the public." United
States v. Crandon, 173 F.3d 122, 128 (3d Cir.), cert. denied,
120 S. Ct. 138 (1999); see also United States v. Tolla, 781
F.2d 29, 34 (2d Cir. 1986) ("[C]onditions that restrict a
probationer's freedom must be especiallyfine-tuned.").
Loy claims that there is insufficient evidence in the
record to support the condition barring him from having
_________________________________________________________________
(A) the production of such visual depiction involves the use of a
minor engaging in sexually explicit conduct;
(B) such visual depiction is, or appears to be, of a minor
engaging in sexually explicit conduct;
(C) such visual depiction has been created, adapted, or modified
to appear that an identifiable minor is engaging in sexually
explicit conduct; or
(D) such visual depiction is advertised, pr omoted, presented,
described, or distributed in such a manner that conveys the
impression that the material is or contains a visual depiction
of a minor engaging in sexually explicit conduct[.]
18 U.S.C. S 2256(8).
26
any unsupervised contact with minors. He further contends
that the condition is "not ``reasonably r elated' to the
statutory goals because no evidence was presented that [he]
ever molested a child." Finally, Loy argues that the
condition, coupled with the requirement that the
"supervision" come from someone other than his wife,
functionally prevents him from bearing and raising children
of his own, in violation of his fundamental rights to
procreate and to maintain the integrity of his family.
The District Court's findings in support of the condition
that Loy have no unsupervised contact with minors r ead as
follows:
The Court finds it appropriate to pr ohibit defendant
from all unsupervised contact with minors while on
supervised release. Although defendant was convicted
of possession of child pornography and not of the
production of such pornography, the evidence
presented to this Court prior to sentencing
demonstrates that the defendant has not only a
significant knowledge of and interest in child
pornographic materials, but also that the defendant
himself has been involved in making videos of young
girls. Specifically, defendant described to Special Agent
Guzy how he had produced videos by hiding a
camcorder in a bag and filming up the skirts of girls
high school age and younger as they rode escalators at
a mall, as well as how he has "hidden" camera
videotapes that he made by videotaping through
windows. Regardless of whether or not these videos
constitute pornography, it is clear to this Court that
the defendant, given his interest in child por nography
and his efforts to make sexually explicit materials
involving children, poses a danger to childr en if left
alone with them.
Accordingly, the Court finds it appr opriate to prohibit
defendant from having unsupervised contact with
minors. The Court does not mean by imposition of this
condition to require that defendant's pr obation officer
or another law enforcement official be pr esent
whenever defendant is around minors. However ,
defendant is not to be alone with minors, nor is he to
27
be alone with his wife and any minors. In other wor ds,
an adult other than defendant's wife must be pr esent
when defendant is in the presence of a minor . This
condition of supervised release serves to: (1) protect
minors who may come in contact with defendant in
that defendant is not likely to attempt to make sexually
explicit depictions of them if another adult is pr esent;
and (2) deter defendant from engaging in criminal
conduct, also because defendant is not likely to
attempt to make sexually explicit depictions of children
if another adult is present.
In a footnote, the court explained that "[e]vidence presented
to this Court prior to defendant's sentencing indicated that
defendant's wife also has an interest in child pornography."
Loy argues that the District Court's findings with respect
to this condition are not supported by the r ecord. We
disagree. As the court noted, Loy twice admitted to an
undercover agent that he secretly filmed up young girls'
dresses on escalators at the local mall by placing a bag
containing a hidden video camera at their feet. It may also
be true that, at the subsequent hearing on his motion to
suppress, Loy claimed to have fabricated the story. But it is
not true, as Loy argues, that because the evidence on this
point is contradictory, the record does not support the
District Court's finding.
The contradiction is of Loy's own creation. The District
Court was free to conclude that the self-serving statements
Loy made before the court were less cr edible than
statements he made to third parties who he believed shared
his interests in child pornography. Ther efore, the record
contained sufficient evidence to support the court's finding
that Loy had personally made videotapes exploiting minors.
Loy next argues that even if there is sufficient evidence
that he had secretly filmed up young girls' dresses on mall
escalators, "that conduct would not be addr essed by the
condition, because the conduct would not have taken place
when Mr. Loy was alone with minors." The argument is
wholly without merit. The fact that Loy was willing to
exploit minors in public places fully supports a condition
barring him from being alone with them in private.
28
Loy further contends that the condition is vague in that
it might conceivably apply to casual or unavoidable contact
with minors in public places. This argument is one that has
a long and familiar history in the courts; associational
conditions placed upon parolees and probationers are
commonplace and have frequently been challenged as
overly broad or vague because they potentially extend to
casual encounters. See 1 Neil P. Cohen, The Law of
Probation and Parole S 9.11, at 9-19 (2d ed. 1999). At this
point, it is well established that associational conditions do
not extend to casual or chance meetings. See, e.g.,
Arciniega v. Freeman, 404 U.S. 4, 4 (1971) (per curiam)
(interpreting an associational condition to exclude certain
casual encounters); Birzon v. King, 469 F .2d 1241, 1243
(2d Cir. 1972) (same); Cohen, supra,S 9.11, at 9-19
(observing that associational conditions are fr equently
challenged, but that courts routinely uphold them and
interpret them not to apply to chance meetings). We also so
interpret them. Certainly accidental or unavoidable contact
with minors in public places is not forbidden by the
condition; however, should Loy deliberately seek out such
contacts, they would cease to be "casual" or"unavoidable"
and would fall within the condition's scope. Thus, in
accordance with the long line of similar cases, we believe
that the condition restricting Loy's contact with minors is
not unconstitutionally vague.
Loy also submits that the record does not support the
District Court's finding that his wife is also interested in
child pornography. Consequently, he ar gues, the court
erroneously structured the condition to pr ohibit him from
having otherwise unsupervised contact with minor children
even if his wife is present. The court explained its order
that Loy must be chaperoned by someone other than his
wife when in the presence of minors as justified by the fact
that "[e]vidence presented to this Court prior to defendant's
sentencing indicated that defendant's wife also has an
interest in child pornography." This led the court to require
that "an adult other than defendant's wife must be present
when defendant is in the presence of a minor ." Although
the evidence on which the court based its decision is fairly
tenuous for such a severe restriction, especially considering
its impact on a third party who has not been charged with
29
any crime, given our deference to the District Court in
factual matters, it is sufficient.9
Loy's final challenge to the condition is that, although he
does not currently have children, the condition could
potentially extend to any children he and his wife may
subsequently have once he is released fr om prison. If so,
the condition might deter him from exer cising his
constitutional right to procreation, see Skinner v.
Oklahoma, 316 U.S. 535, 541 (1942), and, should he have
children to whom the condition applies, it would interfere
with his fundamental right to familial integrity, see Gruenke
v. Seip, 225 F.3d 290, 303 (3d Cir . 2000).
It is well established that, although parents have a
fundamental right to raise their children, this right can be
overridden by the state's "compelling inter est" in ensuring
children's safety. See Croft v. W estmoreland County Children
& Youth Servs., 103 F.3d 1123, 1125 (3d Cir. 1997). Thus,
convicted pedophiles may, quite legitimately, lose custody of
their children or have restrictions placed on their parental
rights. However, where there is insufficient evidence to
support a finding that children are potentially in danger
from their parents, the state's inter est cannot be said to be
"compelling," and thus interference in the family
relationship is unconstitutional. See id. at 1126.
Loy, after approximately nine years of marriage, is
childless; his term of supervised release will last only three
years. At most, any children he might have upon his
release would be two years old by the time the term ended.
There is certainly a legitimate question as to whether the
_________________________________________________________________
9. The only evidence that Loy's wife is inter ested in child pornography
is
that, in his reply to the fake advertisement run by the police, Loy
responded as "Ray and Maria" and used the word "we" to describe the
interest in child pornography. However , the transcription of his
telephone call with the government agent suggests that Ray did not let
his wife know about his proclivities: "Umm, you know she really don't
know too much about the very young stuff I got. I mean you know she
kinda likes the, the couples and solo girls and stuf f. . . . But, like I
said,
I kinda keep the actual really young stuf f from her because I don't know
how she'd handle that. I don't know if she'd fr eak out or not. . . . I
keep
that definitely hidden."
30
record would support a finding that Loy represents a threat
to an infant child of his own. But it is unnecessary to
decide this question, because we believe it unlikely that the
District Court intended its condition to extend so far. Given
the severe intrusion on Loy's family life that would
otherwise result, we believe that, absent a clearer sign from
the District Court, the condition should be construed to
apply only to other people's children, and not to Loy's own.
If, at some later date, the District Court should come to
believe that it is necessary for the protection of the public
or for Loy's rehabilitation to extend the condition to Loy's
own children, it may consider modifications to the condition
in accordance with 18 U.S.C. S 3583(e); the
constitutionality of the restriction can likewise be reviewed
at that time. We therefore r eject the government's
suggestion that the condition receive a br oad construction
now, placing the burden on Loy to petition for a
modification should he and his wife have childr en before
the term of supervised release ends.
V. Conclusion
For the foregoing reasons, we will affir m the condition
restricting Loy's contact with minors, but will vacate the
condition prohibiting Loy from possessing pornography,
and remand to the District Court for further pr oceedings
consistent with this opinion.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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