United States v. Cory Misraje ( 2018 )


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  •                    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.