United States v. Smyth

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
1-11-2007
USA v. Smyth
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-1046
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-1046
UNITED STATES OF AMERICA
v.
JAMES SMYTH
Appellant
Appeal from the United States District Court
for the Middle District of Pennsylvania
Criminal No. 04-cr-00316
The Honorable William J. Nealon, Senior District Judge
Submitted under Third Circuit LAR 34.1(a)
March 10, 2006
Before: ALDISERT and ROTH*, Senior Circuit Judges,
RODRIGUEZ**, District Judge
(Filed: January 11, 2007)
*The Honorable Jane R. Roth assumed senior status on May 31, 2006.
**The Honorable Joseph H. Rodriguez, Senior United States Judge for the District
of New Jersey, sitting by designation.
OPINION OF THE COURT
RODRIGUEZ, Senior District Judge.
James Smyth appeals the non-standard conditions that were imposed as part of his
sentence after pleading guilty to violating 18 U.S.C. § 1519. On appeal, Smyth argues
that the District Court, in sentencing him, abused its discretion because the non-standard
conditions imposed do not reasonably relate to the offense of conviction. He also argues
that one of the conditions is overbroad and vague, thereby subjecting him to a greater
deprivation of liberty than is reasonably necessary. We have jurisdiction to review the
sentence imposed pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We will affirm
in part and vacate in part, and remand to the District Court for further proceedings
consistent with this Opinion.
I.
Because we write solely for the parties, we will address only those facts that are
relevant to our analysis. During the summer of 2002, Smyth was identified in connection
with an investigation into a child pornography distribution ring being conducted by the
Federal Bureau of Investigation (“FBI”). After being contacted by an FBI agent in
November of 2003, Smyth agreed to provide his computer hard drive to the FBI;
however, he provided a worthless part of the computer and dumped the actual hard drive
in a body of water to prevent the FBI from retrieving and analyzing it.
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On September 24, 2004, the government filed, and Smyth pleaded guilty to, a one-
count superseding information, which charged Smyth with destroying a computer hard
drive with the intent to obstruct a federal investigation of possession of child
pornography, in violation of 18 U.S.C. § 1519. On December 17, 2004, the District Court
sentenced Smyth to twelve months incarceration followed by three years of supervised
release. In addition to the standard conditions of supervised release, the District Court
imposed four non-standard conditions not included in the settlement agreement. Smyth
objected to two of the four. They are as follows:
(1) The defendant shall participate in a sex offender treatment program, which
may include risk assessment testing, counseling, and therapeutic polygraph
examinations, and shall comply with all requirements of the treatment
provider. The defendant shall contribute to the cost of treatment in an amount
to be determined by the probation officer, and the treatment is to be conducted
by a therapist approved by the probation officer.
(2) The defendant shall not associate with the children, other than his own
children, under the age of 18 except in the presence of an adult who has been
approved by the probation officer.
(Judgment in a Criminal Case, app. at 6.) This appeal followed.
II.
Because, at sentencing, Smyth challenged the imposition of the non-standard
conditions, we will review for abuse of discretion. United States v. Loy, 237 F.3d 251,
256 (3d Cir. 2001).
III.
Smyth argues that because the two non-standard conditions outlined above do not
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reasonably relate to the offense of conviction, it was an abuse of discretion for the District
Court to impose them. We disagree. In light of Smyth’s criminal history and the nature
and circumstances of the offense, the conditions imposed are a reasonable punishment.
Sentencing courts have “broad discretion to tailor conditions of supervised release
to the goals and purposes” set forth in 18 U.S.C. § 3553(a). United States v. Balson, 384
F.3d 38, 42 (2d Cir. 2004). Title 18 U.S.C. § 3553(a) states, in pertinent part, that the
district court should consider the following:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant;
(2) the need for the sentence imposed–
***
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training,
medical care or other correctional treatment in the most effective manner.
18 U.S.C. § 3553(a)(1), (2)(B)-(D) (2003). We have stated that special conditions must
be upheld as long as they reasonably relate to any of the factors set forth in 18 U.S.C. §
3553(a). United States v. Pruden, 398 F.3d 241, 248 (3d Cir. 2005).
Here, the special conditions of supervised release do reasonably relate to the
factors set forth in 18 U.S.C. § 3553(a)(1). Specifically, the special conditions reasonably
relate to the “nature and circumstances of the offense.” Although Smyth generically
describes his conviction as one of “obstructing an investigation by destroying a tangible
object,” (Appellant’s Br., p. 12), he cannot escape the factual basis that supported his
guilty plea. During the colloquy, Smyth agreed with the following representation:
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MR. SEMPA: Your Honor, we would present evidence that the FBI
was involved in an investigation into child pornography in several states in the
United States and that information from one of the FBI offices in another state
was sent to the Scranton office, indicating that a screen name used by this
Defendant, Mr. Smyth, may, in fact, be in possession of or used to possess
child pornography.
Based on that, in November of 2003 an FBI agent contacted Mr. Smyth.
And after telling him, you know, what was going on, the nature of the
investigation and so forth, asked Mr. Smyth if Mr. Smyth would voluntarily
turn over his computer hard drive.
Mr. Smyth, instead of turning over the computer hard drive turned over
a part of the computer that was not the hard drive but would not allow agent
to check that and instead took his computer hard drive, concealed it and
ultimately dropped it in a body of water and destroyed it, which impeded the
investigation.
(Appx. p. 42.) Because the conditions require Smyth to attend a sex offender treatment
program and restrict his association with children, they are reasonably related to the
nature and circumstances of the present offense–obstructing a child-pornography
investigation by destroying a tangible object to prevent the FBI from analyzing its
contents.
In addition, the special conditions reasonably relate to the “history and
characteristics of the defendant.” 18 U.S.C. § 3553(a)(1). Smyth’s criminal history
includes two convictions of particular import here. First, Smyth was convicted in 1990
for corruption of minors because he provided three underage boys with alcohol. Second,
and more importantly, Smyth was convicted of open lewdness in 1995 because he was
naked on a couch, covered only by a blanket, beside a naked four-year old boy. Because
Smyth has a history of committing criminal offenses against minors, two of which are of a
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sexual nature, special conditions limiting his association with minors and requiring sex
offender treatment and counseling are reasonably related to the history and characteristics
of the defendant.
Finally, the special conditions reasonably relate to “afford[ing] adequate
deterrence to criminal conduct,” “protect[ing] the public from further crimes of the
defendant” and providing the defendant with “correctional treatment in the most effective
manner.” 18 U.S.C. § 3553(a)(2). Given Smyth’s criminal history, it is reasonable to
require that he receive sex offender treatment and to limit his association with minors in
order to deter his criminal conduct and protect the public. Moreover, these conditions are
effective ways to implement correctional treatment. Accordingly, we find that the non-
standard conditions imposed by the District Court satisfy the requirements of 18 U.S.C. §
3553.
IV.
Smyth also argues that the condition limiting contact with children is unnecessarily
broad because it could be read to, for example, prohibit him from being in contact with
minor family members–even those accompanied by adults. We agree.
Special conditions of supervised release must be “‘reasonably related’ to the goals
of deterrence, protection of the public, and rehabilitation of the defendant.” Loy, 237
F.3d at 267 (quoting 18 U.S.C. § 3583(d)(1)). In addition, they must “‘involve[] no
greater deprivation of liberty than is reasonably necessary’ to meet these goals.” Id.
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(quoting 18 U.S.C. § 3583(d)(2)). Finally, “supervised release conditions that affect
constitutional rights will [only] be valid if ‘narrowly tailored and . . . directly related to
deterring [the offender] and protecting the public.’” Id. (quoting United States v.
Crandon, 173 F.3d 122, 128 (3d Cir. 1999)).
Although the government argues that the language of the condition is neither
overbroad nor vague, the transcript of the sentencing hearing suggests otherwise:
MS. GHILARDI: So this would mean that he can’t associate with–
THE COURT: With children other than his own children.
MS. GHILARDI: What about family members, Your Honor, like nieces
and nephews, that sort of thing? I mean, that’s a rather very restrictive
condition, Your Honor.
THE COURT: It is. But under the circumstances it would seem to be
appropriate. But who are they? Are there a lot of nieces and nephews under
18?
MS. GHILARDI: I don’t know, Your Honor. All I’m saying is that I
can envision him being in a circumstance where he goes somewhere and there
are children under the age of 18 there. Is he just supposed to leave?
THE COURT: Well, if you make a suggestion then, instead of
associate, what would you prefer?
MS. GHILARDI: I’m sorry, Your Honor, I don’t have a suggestion
because I just–I see this being very difficult.
***
THE COURT: I’ll ask the Probation Officer, what would be expected
in your supervision under Condition six?
PROBATION OFFICER COYER: Well, Your Honor, I would
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anticipate that the Defendant’s wife would be an approved person. So that if
they are in a school or if they are with his own children that should not be a
problem. What we’re trying to avoid is a situation where he’s in an
unsupervised position with young children. Something that he’s going to have
to anticipate and then bring to the attention of the probation officer.
***
MS. GHILARDI: And again, Your Honor, I’m sorry but it seems like
I’m belaboring this point–
THE COURT: Well, no. This will stand. There will be something
worked about (sic) between the probation officer and this Defendant. And if
there’s a violation, we’ll address the import of the language at that time.
MS. GHILARDI: Okay. Because I suppose the reason why I am going
through this discussion, Your Honor, is because I don’t want to have a
violation and I know my client doesn’t either. So I suppose I’m trying to
clarify what the ground rules are because I have not ever been in a situation
before where this sort of condition has been imposed by the Court.
(Sentencing Transcript, app. at 54-57) (emphasis added). It is clear that even the District
Court could not foresee how the language would be interpreted should Smyth be charged
with a violation of the condition while on supervised release. While we agree that a
limitation on Smyth’s contact with minors is appropriate, see Loy, 237 F.3d at 267-68
(holding that it is appropriate to prohibit a defendant from all unsupervised contact with
minors even though the defendant was only convicted of possession of child
pornography), the limitation here leaves too much guess as to its meaning and its
application. Smyth should not have to wait until there is a violation to have the import of
the language addressed. Accordingly, we will vacate and remand for the District Court to
develop an association condition that is not overbroad and vague.
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V.
For the foregoing reasons, we will affirm in part and vacate in part, and remand to
the District Court for further proceedings consistent with this Opinion.
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ROTH, Senior Circuit Judge, concurring in part and dissenting in part:
I agree with the majority insofar as it affirms the judgment of sentence. I
respectfully dissent, however, because I would affirm the sentence in its entirety. The
defendant, James Smyth, objects to Condition 2 of his supervised release:
The defendant shall not associate with the children, other than his own
children, under the age of 18 except in the presence of an adult who has
been approved by the probation officer.
The majority concludes that, while a limitation on Smyth’s contact with minors is
appropriate, the limitation of Condition 2 leaves too much guess as to its meaning and its
application.
I conclude to the contrary that the language is plain and simple and its meaning is
clear – Smyth shall not associate with any children under the age of 18, other than his
own, except in the presence of an approved adult. I find this condition is appropriate for a
man with convictions for child pornography, corruption of minors, and open lewdness
with a four-year old boy. He must stay away from children – no limits, no vagueness.
For the above reason, I do not find Condition 2 requires any guessing as to its
meaning and application and I would affirm it as a condition of supervised release.
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