United States v. Holm, Delbert R. ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1389
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DELBERT R. HOLM,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 01-10011-001—Michael M. Mihm, Judge.
____________
ARGUED SEPTEMBER 19, 2002—DECIDED APRIL 9, 2003
____________
Before CUDAHY, DIANE P. WOOD, and WILLIAMS, Circuit
Judges.
DIANE P. WOOD, Circuit Judge. Delbert Holm is an
information system technologist. He is before us now
because he downloaded onto his home computer more than
100,000 pornographic images, approximately 10 to 20% of
which depicted underage children engaged in sexually
explicit activity. Although Holm has steadfastly maintained
that his possession of these materials was part of an
academic study of the subject, he nevertheless decided to
plead guilty to federal charges for violations of 18 U.S.C.
§ 2252(a)(4)(B), which makes it a crime to possess child
pornography. The district court imposed a 59-month sen-
tence and a $20,000 fine. The court also imposed several
2 No. 02-1389
post-prison release conditions, including prohibitions on
unsupervised contact with children, possession of material
containing nudity, and use or possession of any computer
with Internet capability.
On appeal, Holm first presents a number of doomed
constitutional claims, several of which were resolved long
ago by the Supreme Court in New York v. Ferber, 458 U.S.
747 (1982), and the remainder of which require third-party
standing that Holm cannot establish. Holm’s next claim,
which is that the district court should have applied United
States Sentencing Guideline § 2G2.4, rather than § 2G2.2,
as the starting point for calculating his sentence, was
resolved favorably to him in our recent decision in United
States v. Sromalski, 318 F.3d 748 (7th Cir. 2003), and thus
it also requires little discussion. Finally, Holm challenges
several of the conditions of supervised release on the ground
that they are unduly burdensome. We agree that one is
indeed overbroad. We therefore affirm Holm’s conviction,
but we remand for further consideration of Holm’s sentence
and conditions of release.
I
In July 2000, the Illinois State Police received an anony-
mous complaint that Holm was in possession of a large
amount of child pornography. The caller also advised the
police that Holm’s wife was aware of her husband’s problem
but did not know what to do about it. Based on this call,
agents contacted Mrs. Holm, who agreed to cooperate fully
and allowed agents to search the Holms’ home. The subse-
quent search uncovered computers and computer disks
containing the pornographic materials described above. An
indictment was filed on February 21, 2001, charging Holm
with one count of possessing child pornography in violation
of 18 U.S.C. § 2252(a)(4)(B), and one forfeiture count. Holm
filed a motion to dismiss the indictment on October 12,
No. 02-1389 3
2001. The district court denied the motion, at first orally
and then by written order.
After the district court orally denied Holm’s motion, a
jury trial commenced on October 15, 2001. The next day,
Holm agreed to a conditional guilty plea pursuant to FED.
R. CRIM. P. 11(a)(2), reserving the right to appeal the issues
raised in the pretrial motion to dismiss. After a sentencing
hearing on February 1, 2002, the court imposed its sen-
tence. Judgment was entered on February 7, 2002, and
Holm filed a timely notice of appeal the next day.
II
We begin with a brief discussion of Holm’s constitutional
claims. First, he asserts that 18 U.S.C. § 2252’s prohibition
on child pornography is unconstitutionally overbroad be-
cause it criminalizes possession of materials with literary,
artistic, political, and scientific value. Holm argues in
particular that the district court erred when it summarily
rejected his claim that his possession of child pornographic
materials was necessitated by his scholarly study of the
efficacy of public and private efforts to police distribution.
His argument draws on the well-known test set forth in
Miller v. California, 413 U.S. 15 (1973), which governs what
materials are obscene and thus outside the protections of
the First Amendment. But as New York v. Ferber makes
clear, child pornography is a category of speech that is
separate and apart from obscenity. Ferber, 458 U.S. at 756.
Holm urges that the Supreme Court abandoned the Ferber
rule in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122
S.Ct. 1389 (2002), but the Court’s discussion in Free Speech
Coalition makes it plain that this is not so. That case
rejected only a ban on “virtual” child pornography, see 122
S.Ct. at 1402, while Holm pleaded guilty to possession of
pornography depicting real children. Holm also overlooks
4 No. 02-1389
the fact that the Court in Free Speech Coalition specifically
re-affirmed the continued vitality of the Ferber frame-
work. Id.Holm’s remaining constitutional claims can be raised only
if he has standing to assert third-party rights. For instance,
Holm asserts that the child pornography statute is un-
constitutional because it criminalizes possession of child
pornographic materials by law enforcement and defense
attorneys involved in criminal cases. Similarly, Holm as-
serts that the amnesty provisions built into the statute at
18 U.S.C. § 2252(c)(2)(B), under which an individual who
inadvertently comes into possession of fewer than three
items can avoid criminal liability by immediately reporting
it, violate the Fifth Amendment right against self-incrimi-
nation. Third, Holm challenges as unconstitutionally vague
the affirmative defense contained at 18 U.S.C. § 2252(c)
(2)(A), whereby an individual who inadvertently comes into
possession of fewer than three items can insulate herself
from criminal liability if she takes “reasonable steps” to
destroy the materials. Finally, Holm contends that the
court’s imposition of a $20,000 fine violated his wife’s due
process rights because at least some of the funds in pay-
ment of the fine will be drawn from joint marital assets
without affording her notice and an opportunity to be heard.
We conclude that in none of these instances is Holm
entitled to assert the rights of the third party in question.
We recognize that in the First Amendment overbreadth
area, courts have taken a more liberal approach (under the
prudential branch of the standing doctrines) to the ability
of one private party to assert the rights of another party.
This typically occurs only where the court is convinced that
the party whose rights are most clearly implicated may
not be in a position to assert those rights effectively. See
Secretary of State v. Joseph H. Munson Co., 467 U.S. 947,
957 (1984) (quoting Broadrick v. Oklahoma, 413 U.S. 601,
612 (1973) and Dombrowski v. Pfister, 380 U.S. 479, 486
No. 02-1389 5
(1965)). In such situations, a court may grant third-party
standing to avoid “chilling” the free speech rights asserted.
Id. at 956.
That rationale does not apply to any of the third parties
Holm is supposedly trying to protect. It is unreasonable to
think that prosecutors and defense attorneys are being
chilled in their duties because of a fear of prosecution under
18 U.S.C. § 2252. We know of no case in which law enforce-
ment or defense counsel have been subjected to prosecution
for possession of materials as evidence. Furthermore, there
is surely a useful distinction to be drawn between posses-
sion of prohibited materials and possession of evidence
relevant to a criminal proceeding. Indeed, the lack of re-
ported decisions on the question suggests that prosecutors
have no trouble drawing the line between these two situ-
ations.
Holm’s Due Process and Fifth Amendment self-incrimi-
nation claims fare no better under the relatively more
stringent standing requirements that apply outside the
First Amendment context. In order to be able to proceed,
Holm would have to make three difficult showings: (1) that
he himself has standing to attack the statute; (2) that
he enjoys a special and pre-existing relationship with the
third party on whose behalf he wishes to raise a claim; and
(3) that there exist genuine and substantial barriers to
the third party’s assertion of rights. See, e.g., Powers v.
Ohio, 499 U.S. 400, 410-11 (1991); Singleton v. Wulff, 428
U.S. 106, 115 (1976); see also Miller v. Albright, 423 U.S.
420, 422 (1998) (O’Connor, J., concurring). Without step-
ping through all of the specifics, we find that Holm has
failed to carry his burden in several respects: for instance,
he cannot show a special and pre-existing relationship with
individuals who inadvertently download child pornography,
and there is no barrier to his wife’s raising a takings claim
on her own behalf. Holm has accordingly failed to establish
6 No. 02-1389
the necessary standing to bring his remaining constitu-
tional claims.
III
In addition to his constitutional claims, Holm advances
the less ambitious claim that the district court erred at
sentencing by applying U.S.S.G. § 2G2.2 rather than
§ 2G2.4. The former Guideline applies to “trafficking” and
prescribes a base offense level of 17, while the latter applies
to possession and provides for a base offense level of 15. It
is enough for purposes of this opinion to note that the
offense of conviction here was the possession offense found
in 18 U.S.C. § 2252(a)(4)(B). Holm is therefore in precisely
the same position as was the defendant in Sromalski,
supra. For the reasons discussed in that opinion, we agree
with Holm that the proper Guideline to use was § 2G2.4,
and that the cross-reference to § 2G2.2 was not triggered on
these facts. Because there is no evidence in the record that
Holm at any point bought, sold, traded, bartered, or even
exchanged child pornographic materials with other individ-
uals with an intent to traffic in those materials, we remand
to the district court for re-sentencing under § 2G2.4 of the
Sentencing Guidelines, using that Guideline’s base offense
level of 15.
IV
Holm next challenges various conditions of his supervised
release. A district court generally has wide discretion when
imposing special terms of supervised release. United States
v. Sines, 303 F.3d 793, 800 (7th Cir. 2002); United States v.
Guy, 174 F.3d 859, 861 (7th Cir. 1999). This discretion is
limited, however, by 18 U.S.C. § 3583(d), which provides
that a court may impose special post-release conditions only
when certain criteria are met. First, post-release conditions
No. 02-1389 7
must be reasonably related to the factors set forth in
§ 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D). See 18 U.S.C.
§ 3583(d). These factors include: (1) “the nature and cir-
cumstances of the offense and the history and characteris-
tics of the defendant,” (2) the need “to afford adequate
deterrence to criminal conduct,” (3) the need “to protect the
public from further crimes of the defendant,” and (4) the
need “to provide the defendant with needed [training],
medical care, or other correctional treatment in the most
effective manner.” 18 U.S.C. § 3553(a)(1)-(2). In addition,
post-release conditions cannot involve a greater deprivation
of liberty than is reasonably necessary to achieve the latter
three statutory goals. See 18 U.S.C. § 3583(d)(2).
Normally, we would review the special conditions the
district court imposed here for abuse of discretion. United
States v. Angle, 234 F.3d 326, 346 (7th Cir. 2000). In this
case, however, Holm’s discussion of the point is brief to the
point of brushing up against full-blown waiver. His entire
discussion of the subject is contained within slightly more
than a single page. That page includes no citations to
additional material in the record, beyond the court’s
judgment itself, that might help to illuminate the basic
contours of his claims.
The principal indication of which particular post-release
conditions Holm wants to challenge comes in the required
“Summary of Argument” section of his brief, where he
references two of the post-release conditions imposed by the
district court, including the prohibition on possession of
material containing nudity and the restriction on his
possession or use of computers with Internet capability. In
the subsequent “Argument” section, however, Holm refers
to two different conditions: the restrictions on “access to
children” and the requirement that he submit to “physiolog-
ical testing.” He also comments that “defendant would even
be prohibited from viewing a copy of the Newsweek maga-
zine showing the partially nude statue of Lady Justice that
8 No. 02-1389
recently was removed from the Justice Department in
Washington, D.C.” Presumably, he is arguing that posses-
sion of the magazine would violate the restriction on his
possession of material containing nudity. The “Argument”
section does not even mention let alone elaborate on his
claim from the “Summary of Argument” section that the
restriction on his use and possession of computer equipment
with Internet capability is overbroad.
We have repeatedly warned that “perfunctory and un-
developed arguments, and arguments that are unsupported
by pertinent authority, are waived (even where those
arguments raise constitutional issues).” United States v.
Berkowitz, 927 F.2d 1376, 1384 (7th Cir. 1991); see also
FED. R. APP. P. 28(a)(4); United States v. Brown, 899 F.2d
677, 679 n.1 (7th Cir. 1990). “It is not the obligation of this
court to research and construct the legal arguments open to
parties, especially when they are represented by counsel.”
Beard v. Whitley County REMC, 840 F.2d 405, 408-09 (7th
Cir. 1988). This is true even in the criminal context. See
Sanchez v. Miller, 792 F.2d 694, 703 (7th Cir. 1986). In this
case, as we said before, Holm is right at the edge of waiver.
Because waived claims, unlike forfeited claims, cannot be
considered even under the plain error standard, however,
we do not find waiver lightly. Here, the brief and Holm’s
oral argument taken together give us a (barely) adequate
basis on which to follow his argument, and we thus look
briefly at his claims.
Bearing in mind that we review only for abuse of discre-
tion, we find no problem with any of the restrictions Holm
has identified except the one on his ability to possess or use
computers with Internet capability. As part of Holm’s
sentence, the district court imposed the following special
condition of supervised release:
You shall not possess or use a computer that is
equipped with a modem, that allows access to any part
No. 02-1389 9
of the Internet, e-mail service, or other “on-line” ser-
vices. You shall not possess software expressly used for
connecting to online service, including e-mail, or in-
stallation disks for online services or e-mail.
We find that to the extent that the condition is intended
to be a total ban on Internet use, it sweeps more broadly
and imposes a greater deprivation on Holm’s liberty than is
necessary, and thus fails to satisfy the narrow tailoring
requirement of § 3583(d)(2). We understand why the district
court might have thought that a strict ban on all Internet
use was warranted, but such a ban renders modern life—in
which, for example, the government strongly encourages
taxpayers to file their returns electronically, where more
and more commerce is conducted on-line, and where vast
amounts of government information are communicated via
website—exceptionally difficult.
Various forms of monitored Internet use might provide a
middle ground between the need to ensure that Holm never
again uses the Worldwide Web for illegal purposes and the
need to allow him to function in the modern world. At his
sentencing hearing, Holm noted his “almost 30-year history
of working in computerized telecommunications” and that
prohibiting him from use of computers with “network
connectivity” would “put a devastating burden on [his]
ability to be a productive person in this culture.” Moreover,
Holm presented undisputed evidence at his sentencing
hearing that he had not used any of the computer systems
at his place of work in committing his crimes. Because
Holm is most likely to find gainful employment in the
computer field upon his release, the conditions as currently
written could affect his future productivity and jeopardize
his rehabilitation in violation of the command of § 3583(d).
In United States v. Scott, 316 F.3d 733 (7th Cir. 2003),
this court decided that a total ban on access to Internet
services, imposed without advance notice to the defendant,
10 No. 02-1389
was impermissible given the open-ended and standardless
nature of the delegation of power to the probation officer.
Id. at 736. That case was remanded so that the district
court could consider a more narrowly tailored and precisely
articulated set of rules. Id. at 737. A similar approach is
warranted here. We find it notable that this court’s con-
cerns in Scott are reflected in the decisions of our sister
circuits, which have also declined to uphold a total ban on
Internet access by defendants convicted of receiving child
pornography without at least some evidence of the defen-
dant’s own outbound use of the Internet to initiate and
facilitate victimization of children. Compare United States
v. Paul, 274 F.3d 155, 169 (5th Cir. 2001) (upholding
Internet prohibition where defendant had used Internet
communication to encourage exploitation of children by
providing other pedophiles with advice on how to gain
access to child victims); United States v. Crandon, 173 F.3d
122, 127-28 (3d Cir. 1999) (upholding post-release ban on
Internet use where defendant convicted of receiving child
pornography had also engaged in sexual relations with an
underage girl he had met via electronic mail), with United
States v. Freeman, 316 F.3d 386, 391-92 (3d Cir. 2003)
(vacating absolute Internet prohibition in absence of
evidence that defendant had used Internet to contact
children); United States v. Sofsky, 287 F.3d 122, 126-27 (2d
Cir. 2002) (vacating and remanding strict Internet prohibi-
tion where defendant pleaded guilty to only receipt of child
pornography); United States v. White, 244 F.3d 1199, 1205
(10th Cir. 2001) (finding ban on all Internet and computer
use to be “greater than necessary” to serve goals of super-
vised release where defendant had been convicted only of
possession of child pornography).
The condition at issue in White is similar to the one
imposed on Holm. Furthermore, the ban for Holm suffers
from the same lack of precision as did the condition in
No. 02-1389 11
Scott, supra. As currently worded, the condition on Holm’s
use or possession of computers is potentially too narrow
because, on its face at least, it appears to apply to modem-
equipped computers only (as opposed to those directly
linked by ethernet to a university system, for example). And
yet, it is also overly broad if construed as a strict ban on
Internet access. While parolees typically have fewer
constitutional rights than ordinary persons, see Morrisey v.
Brewer, 408 U.S. 471, 482 (1972); United States v. Loy, 237
F.3d 251, 259 (3d Cir. 2001), this is the early 21st century
equivalent of forbidding all telephone calls, or all news-
papers. Without more evidence in the record that such a
drastic measure is appropriate for Holm, it cannot stand.
Just as in Scott, our decision today should not be inter-
preted as precluding the district court from imposing more
narrowly tailored restrictions on Holm’s Internet use. The
district court has already imposed the condition that Holm
be subjected to random searches of his computer and resi-
dence—a condition we find entirely reasonable. See Free-
man, 316 F.3d at 392. Also, a variety of filtering software is
now available. Scott, 316 F.3d at 735; White, 244 F.3d at
1206. That software is becoming ever more effective, and
the court here may wish to consider imposing a requirement
that any computer Holm is permitted to use must be so
equipped. We are confident that the district court
can fashion precise restrictions that protect the child-
victims used in Internet pornography and at the same time
reflect the realities of Holm’s rehabilitation prospects.
V
For the foregoing reasons, we AFFIRM Holm’s convictions
for receipt of child pornography, VACATE his sentence, and
REMAND to the district court for re-sentencing under
§ 2G2.4 of the Sentencing Guidelines without use of the
12 No. 02-1389
cross-reference to § 2G2.2, and for revision of the special
post-release conditions in a manner consistent with this
opinion.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-9-03