United States v. Howard Halverson ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 3 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-10057
Plaintiff-Appellee, D.C. No.
2:20-cr-50253-DLR-1
v.
HOWARD WILLIAM HALVERSON, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Douglas L. Rayes, District Judge, Presiding
Argued and Submitted April 19, 2023
Phoenix, Arizona
Before: TALLMAN, OWENS, and BADE, Circuit Judges.
Howard Halverson pled guilty to possession of child pornography in the
Southern District of Texas and was sentenced to 60 months’ imprisonment and a
lifetime term of supervised release. In order to accommodate his request to transfer
probation supervision to the District of Arizona, Halverson affirmatively consented
to three special conditions of supervised release that are relevant to this appeal: a
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Sexually Explicit Materials Condition,1 a Camera Condition,2 and a Computer
Condition3 (collectively, “Pre-revocation Conditions”). Respectively, the Pre-
revocation Conditions restricted his access, use, and possession of certain “material
depicting sexually explicit conduct,” devices “capable of capturing and/or storing an
image,” and computers and other “internet capable devices.”
Halverson is a particularly sophisticated offender with a background in
computer technology—he has deployed “shielding” devices and other anti-detection
techniques that made it harder for officers to effectively supervise his on-line
activities. However, vigilant probation officers were eventually able to discover that
Halverson was again viewing pornography and was in possession of prohibited
devices. The Arizona district court subsequently revoked Halverson’s supervised
release and sentenced him to time served and a continued lifetime term of supervised
release. The district court imposed nearly identical versions of the Pre-revocation
1
“You must not knowingly possess, view, or otherwise use material depicting
sexually explicit conduct as defined by 18 U.S.C. § 2256(2). . . . You must not enter
any location where the primary function is to provide these prohibited materials.”
2
“You must not possess any device capable of capturing and/or storing an image, or
video recording device without the prior written permission of the probation officer.”
3
“You must not possess or use a computer (including internet capable devices) with
access to any ‘on-line computer service’ at any location (including place of
employment) without the prior written permission of the probation officer. This
includes any Internet service provider, bulletin board system, or any other public or
private network or e-mail system.”
2
Conditions along with two additional conditions preventing him from accessing
social media sites and requiring him to submit to substance abuse testing.
Halverson appeals the revocation of his supervised release, now arguing for
the first time that the Pre-revocation Conditions were unconstitutional. Halverson
also appeals the district court’s decision to reimpose those same conditions and to
impose the new social media and substance abuse conditions. We affirm in part and
remand in part.
1. The parties dispute whether Halverson was permitted to collaterally
challenge the legality of his Pre-revocation Conditions at his revocation hearing and
whether he may challenge them in this appeal. Our cases suggest several competing
answers. For example, some cases indicate that defendants need not challenge the
legality of their conditions of supervised release in a direct appeal from sentencing
in order to challenge those conditions at a future revocation hearing—and that doing
so might even be premature. See, e.g., United States v. Romero, 676 F.2d 406, 407
(9th Cir. 1982); United States v. King, 608 F.3d 1122, 1128 (9th Cir. 2010); United
States v. Antelope, 395 F.3d 1128, 1131-32, 1141 (9th Cir. 2005); United States v.
T.M., 330 F.3d 1235, 1241 n.6 (9th Cir. 2003); United States v. Ray, No. 21-50024,
2022 WL 1451392, at *2 (9th Cir. May 9, 2022) (unpublished), cert. denied, 143 S.
Ct. 265 (2022); United States v. Star, 552 F. App’x 635, 636 (9th Cir. 2014)
(unpublished). Another line of cases suggests that a defendant’s failure to object to
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supervised release conditions at sentencing constitutes forfeiture and we therefore
review only for plain error. See United States v. Phillips, 704 F.3d 754, 767-68, 768
n.13 (9th Cir. 2012); United States v. Wright, 754 F. App’x 530, 532 (9th Cir. 2018)
(unpublished). A third line of cases indicates that defendants may be statutorily
barred from challenging the legality of their conditions of supervised release at a
subsequent revocation hearing. See United States v. Gross, 307 F.3d 1043, 1044
(9th Cir. 2002); United States v. Cate, 971 F.3d 1054, 1056-58 (9th Cir. 2020);
United States v. Castro-Verdugo, 750 F.3d 1065, 1068-71 (9th Cir. 2014).
Ultimately, we need not resolve this split of authority because Halverson’s
challenge fails even if we assume that he preserved the issues in this appeal and that
he is not barred from asserting them.
2. The district court properly rejected Halverson’s facial and as-applied
vagueness and overbreadth challenges to his Pre-revocation Conditions because
Halverson had actual notice from an earlier home visit by probation officers that his
conduct was clearly and legitimately proscribed by those conditions. The “core” of
the challenged conditions prohibited Halverson from viewing pornography and from
possessing cameras, electronic storage drives, and computers as those terms are
ordinarily understood. See United States v. Sandsness, 988 F.2d 970, 971 (9th Cir.
1993) (explaining vague statutes lack a “core” of clearly prohibited conduct).
Probation officers had initially reviewed those conditions with Halverson when he
4
was released from federal prison. After probation officers discovered Halverson was
viewing pornography and was in possession of hard drives and cameras, rather than
file a petition to revoke his supervision, they explicitly warned Halverson that his
conduct violated the terms of his supervised release. See King, 608 F.3d at 1128 (“A
probation officer’s instructions are relevant to whether a supervised release
condition gives fair warning of prohibited conduct.”).
Despite “actual notice” that his conduct was clearly prohibited, United States
v. Backlund, 689 F.3d 986, 997 (9th Cir. 2012), Halverson nonetheless ignored the
warnings, and a subsequent search of his home uncovered 23 unauthorized
devices—including computers and internet-capable devices, hard drives, and
cameras. Moreover, Halverson understood that his conduct was prohibited because
he utilized his background in computer technology to employ sophisticated hardware
and software designed to obscure that surreptitious conduct from law enforcement
monitoring.
On this record, Halverson’s “behavior rendered him a hard-core violator as to
whom the [conditions were] not vague,” and he may not escape responsibility by
speculating that the conditions might have been unconstitutional as applied to
hypothetical conduct not before us. Smith v. Goguen, 415 U.S. 566, 577 (1974); see
also Kashem v. Barr, 941 F.3d 358, 375 (9th Cir. 2019) (detailing the general rule
that a “plaintiff who engages in some conduct that is clearly proscribed cannot
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complain of the vagueness of the law as applied to the conduct of others” (citation
omitted)).
3. The district court also properly rejected Halverson’s First Amendment
challenge to the Sexually Explicit Materials Condition. Halverson primarily relies
on United States v. Gnirke, 775 F.3d 1155 (9th Cir. 2015), where we held that a
similar condition deprived the defendant of more liberty than was reasonably
necessary. Id. at 1163. As the district court properly observed, however, the Gnirke
court declined to remand the case and held the condition was valid so long as it was
limited “(1) to any materials with depictions of ‘sexually explicit conduct’ involving
children, as defined by 18 U.S.C. § 2256(2), and (2) to any materials with depictions
of ‘sexually explicit conduct’ involving adults, defined as explicit sexually
stimulating depictions of adult sexual conduct that are deemed inappropriate by [the]
probation officer.” Id. at 1166. Here, the district court specifically cited the Gnirke
opinion and explained that it would apply the same limiting construction. See United
States v. Hernandez, 795 F.3d 1159, 1169 (9th Cir. 2015) (“When there is a
discrepancy between an unambiguous oral pronouncement of a sentence and the
written judgment, the oral pronouncement controls.” (citation omitted)). The district
court then reasonably concluded that Halverson’s possession and consumption of
depictions of adult pornography, bestiality, and child erotica “fits squarely” within
the condition as construed. We agree.
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4. For similar reasons, the district court did not abuse its discretion by
reimposing nearly identical conditions. Nor did it err by imposing a new condition
that prohibits Halverson from accessing social media sites. See United States v.
Wells, 29 F.4th 580, 591 (9th Cir. 2022) (affirming a total ban on internet use without
probation officer approval where the defendant used the internet to access child
pornography). The district court heard extensive testimony at the revocation hearing
regarding Halverson’s background in computer technology and how he utilized a
sophisticated combination of software and hardware in an attempt to hide his
prohibited conduct from probation officers. On this record, we hold that the district
court did not abuse its discretion in restricting Halverson’s access to sexually explicit
materials, certain electronic devices, and social media sites.
5. The parties agree that the district court mistakenly included a condition
requiring Halverson to submit to substance abuse testing. We therefore grant the
parties’ request for a limited remand.4
AFFIRMED IN PART; REMANDED IN PART.
4
On remand, the district court may also wish to impose an updated computer
condition as suggested by the government in its briefing.
7