United States v. Cory Misraje , 888 F.3d 1113 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50543
Plaintiff-Appellee,
D.C. No.
v. 2:09-cr-00992-
PSG-1
CORY MISRAJE, AKA Cory Spencer
Misraje,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Argued and Submitted February 13, 2018
Pasadena, California
Filed April 30, 2018
Before: Marsha S. Berzon and Jay S. Bybee, Circuit
Judges, and John A. Woodcock, Jr. * District Judge.
Opinion by Judge Woodcock
*
The Honorable John A. Woodcock, Jr., United States District
Judge for the District of Maine, sitting by designation.
2 UNITED STATES V. MISRAJE
SUMMARY **
Criminal Law
The panel affirmed the district court’s judgment
revoking the defendant’s supervised release after he
committed two violations of a condition that he possess and
use only those computers and computer-related devices that
he had disclosed to his supervising officer.
The panel held that the probation office did not
unreasonably delay the initiation of the revocation petition,
where the defendant caused the delay by obstructing the
probation office’s investigation of the conduct leading to the
filing of the petition. Rejecting the defendant’s contention
regarding the use of his confession, which he claimed was
the fruit of questioning with deceptive and coercive features,
the panel wrote that the Fifth Amendment does not apply to
law enforcement questions to a supervisee about his
compliance with the terms and conditions of supervision.
The panel held that the defendant violated the computer
“use” condition when he possessed and availed himself of
the functions of his friend’s smart phone, a device he had not
disclosed to the supervising officer.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. MISRAJE 3
COUNSEL
Jonathan P. Schneller (argued), Deputy Federal Public
Defender; Hilary L. Potashner, Federal Public Defender;
Office of the Federal Public Defender, Los Angeles,
California; for Defendant-Appellant.
Nancy B. Spiegel (argued), Assistant United States
Attorney, Criminal Appeals Section; Lawrence S.
Middleton, Chief, Criminal Division; United States
Attorney’s Office, Los Angeles, California; for Plaintiff-
Appellee.
OPINION
WOODCOCK, District Judge:
Cory Misraje appeals a judgment revoking his
supervised release. The revocation arose out of two
violations of a condition of that supervised release — that he
possess and use only those computers and computer-related
devices he had disclosed to his supervising officer. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
I. BACKGROUND
Misraje was convicted of possession of child
pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and
sentenced to a term of incarceration followed by a term of
supervised release. Among the conditions of supervised
release was a prohibition against the possession and use of
computers or computer-related devices not disclosed to his
supervising officer, the “undisclosed device” condition.
4 UNITED STATES V. MISRAJE
While on supervised release, Misraje was in the lobby of
a psychologist’s office, awaiting an appointment. In the
lobby was a mother, also waiting to be seen, and her two
sons, ages eight and twelve. The mother went into the
doctor’s office, leaving Misraje alone with the two boys.
Misraje spoke to at least one of the children and showed him
images of child pornography on an electronic device he had
disclosed to his probation officer. This episode led to a
failed attempt by the United States Probation Office (USPO)
to revoke his supervised release solely on the basis that
Misraje violated the term of his supervised release that
prohibited communication with a minor.
Seven months later, while Misraje was attempting to
fulfill his obligation to reregister as a sex offender, a local
law enforcement officer, who had previously spoken to
Misraje’s supervising officer about the psychologist’s office
incident, questioned him closely and aggressively about the
incident. The officer challenged his initial denials and urged
to him to confess, indicating that Misraje could not be
subject to revocation of supervised release given the district
court’s prior rejection of the USPO’s revocation petition.
Misraje then confessed that he had used an undisclosed
device to access child pornography, which he photographed
with his disclosed device and then showed to the child.
Misraje explained that he had gone to the electronics section
of a Wal-Mart store, connected a Wal-Mart computer
(obviously undisclosed) to a wireless Internet signal from a
nearby McDonald’s restaurant, accessed images of child
pornography on the Wal-Mart computer, and photographed
the images with his disclosed device. He acknowledged that
he had shown the boy in the psychologist’s office images of
child pornography he had photographed at Wal-Mart. One
month after the confession, his supervising officer witnessed
and photographed Misraje holding and looking at the screen
UNITED STATES V. MISRAJE 5
of a friend’s smartphone, which was displaying an Internet
website.
The following month, USPO filed a second petition for
revocation of supervised release, which included two counts
alleging two violations of the undisclosed-device condition
— one related to his use of the Wal-Mart computer, and the
other to his holding and looking at the screen of his friend’s
cellphone. The district court held an evidentiary hearing and
found that Misraje committed both violations. The district
court revoked Misraje’s supervised release and sentenced
him to twelve months and one day incarceration.
Misraje asserts that USPO violated his due process rights
with respect to the psychologist’s office incident through a
combination of: (1) unreasonably delaying investigation and
charging the undisclosed-device violation, and (2) using his
confession, which he claims was the fruit of questioning with
deceptive and coercive features. In addition, Misraje alleges
that merely holding his friend’s cellphone and looking at the
screen does not constitute “use” of the phone, and, thus,
could not violate the undisclosed-device condition.
II. DISCUSSION
In advancing his unreasonable delay argument, Misraje
relies on United States v. Hamilton, 708 F.2d 1412 (9th Cir.
1983), and United States v. Tyler, 605 F.2d 851 (5th Cir.
1979) (per curiam), cases in which this court and another
circuit court of appeals reversed district court revocations of
probation 1 because there had been an unreasonable delay in
1
That Hamilton and Tyler involved revocation of probation whereas
this case involves revocation of supervised release is of no moment.
“Parole, probation, and supervised release revocation hearings are
6 UNITED STATES V. MISRAJE
bringing revocation proceedings after the factual basis for
the pertinent violations was known. Neither case applies
here, because there is no evidence in the record that USPO
knew how Misraje got the child pornography onto his
disclosed device when it first attempted to revoke his
supervised release. In fact, directly after learning of the
incident at the psychologist’s office, the supervising officer
investigated how Misraje got the pornography onto his
disclosed device and was unable to confirm it, in large part
because Misraje lied about it and eliminated the evidence. It
was only after Misraje confessed that he had used an
undisclosed device to obtain the child pornography that the
USPO petitioned for revocation a second time.
Misraje contends that the USPO should have known —
based solely upon the circumstances of the psychologist’s
office incident — that he had used an undisclosed device.
Not only does the argument lack factual support, there is also
no legal authority for a “should have known” standard. It is
a supervisee’s obligation to strictly comply with the terms of
supervised release. See 18 U.S.C. § 3583(e)(3). The
USPO’s inability to uncover a violation due to a supervisee’s
obstruction does not excuse the violation. Furthermore, as
the district court observed, the presence of child
pornography on Misraje’s disclosed device does not
necessarily lead to the conclusion that he used an
undisclosed device to place it there.
Misraje wraps a coercion argument inside his complaints
about undue delay, packaging a more generalized argument
that his due process rights were violated. But, as Misraje
acknowledges, the Fifth Amendment privilege does not
constitutionally indistinguishable and are analyzed in the same manner.”
United States v. Hall, 419 F.3d 980, 985 n.4 (9th Cir. 2005).
UNITED STATES V. MISRAJE 7
apply to law enforcement questions to a supervisee about
compliance with conditions of supervision. United States v.
Nieblas, 115 F.3d 703, 705–06 (9th Cir. 1997); Minnesota v.
Murphy, 465 U.S. 420, 435 n.7 (1984) (“Just as there is no
right to a jury trial before probation may be revoked, neither
is the privilege against compelled self-incrimination
available to a probationer”). As we have concluded that the
unreasonable delay argument fails, his coercion argument,
standing alone, falls of its own weight.
The district court did not err in determining that Misraje
“used” the smartphone at the coffee shop. The condition
required that Misraje “possess and use only those computers
and computer-related devices . . . which have been disclosed
to the Probation Officer upon commencement of supervision
. . . .” It defined “computers and computer-related devices”
as “personal computers . . . [and] cellular telephones . . . that
can access . . . the internet . . . .” 2 Although Misraje claims
that his use was only fleeting, he held and looked at the
device long enough for the probation officer to take several
2
The full text of the condition reads:
The defendant shall possess and use only those
computers and computer-related devices, screen user
names, passwords, email accounts, and internet
service providers (ISPs), which have been disclosed to
the Probation Officer upon commencement of
supervision. Any changes or additions are to be
disclosed to the Probation Officer prior to the first use.
Computers and computer-related devices are personal
computers, personal data assistants (PDAs), internet
appliances, electronic games, cellular telephones, and
digital storage media, as well as their peripheral
equipment, that can access, or can be modified to
access, the internet, electronic bulletin boards, and
other computers;
8 UNITED STATES V. MISRAJE
photographs of Misraje doing so, from different distances
and perspectives. Misraje’s friend, the owner of the
smartphone, said she handed the phone to Misraje so that he
could see information on an Internet website regarding
public storage facilities, and the ensuing investigation
confirmed that the screen did indeed show an Internet
website with such information. These facts demonstrate that
he was absorbing information from a website displayed on
the smartphone. So doing is consistent with a common sense
definition of “use.” The Merriam-Webster Dictionary
defines the verb “use” as “to avail oneself of.” Use,
Merriam-Webster.com, https://www.merriam-
webster.com/dictionary/use (last visited Apr. 5, 2018).
The context of the prohibition against “use” of
“undisclosed devices” is instructive. The district court
subjected Misraje to a blanket prohibition against possession
and use of undisclosed devices — a common prophylactic
against the misuse of the Internet by a convicted sex
offender. The condition is designed to control a supervisee’s
access to the Internet and his ability to communicate
privately using computers. Its text speaks of “computers and
computer-related devices, screen user names, passwords,
email accounts, and internet service providers” and devices
that “can access, or can be modified to access, the internet,
electronic bulletin boards, and other computers.” This
condition is the foundation of a more comprehensive set of
computer-related restrictions in the judgment, including a
computer search and seizure condition, a computer
monitoring condition, and a restriction against
communication with those under the age of eighteen. To
facilitate enforcement of these other supervised release
conditions, the supervisee is prohibited from possession and
use of all but disclosed devices.
UNITED STATES V. MISRAJE 9
In addition, the undisclosed device condition contains a
thematic focus on connectivity to prevent use of undisclosed
devices that can lead, as in this case, to possession of child
pornography, and to a broader array of potential misuses.
Thus Misraje’s use of the Internet browsing capability of his
friend’s smartphone, not just any function, went to the core
of the condition.
It is not uncommon for the conditions of supervised
release to impose bright line prohibitions. For example, in
Misraje’s case, he was prohibited from obtaining
employment not approved by the supervising officer, and
from associating and communicating with persons under
eighteen except in the presence of the minor’s parent or legal
guardian and on the condition that he give notice of his
conviction to the parent or legal guardian. There is benefit
to enforcement and compliance from certainty — here,
Misraje was prohibited from using any computer-related
device, including a smartphone, he had not previously
disclosed to the supervising officer. On the basis of evidence
that Misraje actually possessed and used his friend’s
smartphone — a device that he had not disclosed to the
supervising officer — the district court properly concluded
Misraje violated the condition against possession and use of
an undisclosed device.
III. CONCLUSION
The probation office did not unreasonably delay the
initiation of a petition for revocation of supervised release in
this matter as Misraje caused the delay by obstructing the
probation office’s investigation of the conduct leading to the
filing of the petition for revocation. Nor does the Fifth
Amendment does apply to law enforcement questions to
Misraje about his compliance with the terms and conditions
of supervision. Finally, Misraje violated the computer “use”
10 UNITED STATES V. MISRAJE
condition of supervised release when he availed himself of
the functions of an undisclosed device. The judgment of the
district court is AFFIRMED.