United States v. David Tjader

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18‐2447
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
DAVID TJADER,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:17CR00100‐001 — William M. Conley, Judge.
____________________
ARGUED APRIL 24, 2019 — DECIDED JUNE 12, 2019
____________________
Before KANNE, HAMILTON, and ST. EVE, Circuit Judges.
ST. EVE, Circuit Judge. In this appeal, David Tjader chal‐
lenges several conditions of his supervised release on
grounds he did not raise in the district court. Because he
waived these challenges, we affirm.
Tjader purchased child pornography online from sellers in
the Philippines. He asked one seller about recordings of girls
2 No. 18‐2447
under 14 years old being tortured, raped, or killed. His con‐
duct involved over 250 different pornographic images and
videos of prepubescent girls. Tjader pleaded guilty to one
count of receiving child pornography. See 18 U.S.C.
§ 2252(a)(2),(b)(1).
A United States probation officer prepared a presentence
investigation report and a supervision plan. Tjader received a
copy of this plan and confirmed with the district court that,
before sentencing, he reviewed and understood it. As part of
the plan, the probation officer proposed the following
supervised‐release terms—terms that Tjader now challenges
on appeal:
 Condition 1: Defendant shall not leave the judicial
district in which defendant is being supervised without the
permission of the Court or probation officer.
 Condition 2: Defendant … shall … follow the [pro‐
bation] officer’s instructions … .
 Condition 11: As directed by the probation officer,
defendant shall notify third parties of risks that may be oc‐
casioned by defendant’s criminal record or personal history
or characteristics … .
 Condition 12: Provide the supervising U.S. proba‐
tion officer any and all requested financial information, in‐
cluding copies of state and federal tax returns.
 Condition 16: As approved by the supervising U.S.
Probation Officer, undergo psychosexual evaluations,
which may involve use of polygraph examinations. Defend‐
ant shall participate in an outpatient sex offender counsel‐
ing program if recommended by the evaluator, … .
 Condition 17: Not meet or spend time with any per‐
son under the age of 18 or have verbal, written, telephonic
No. 18‐2447 3
or electronic communication with any such person … . This
provision does not include persons under the age of 18, such
as waiters, cashiers, ticket vendors, etc., with whom defend‐
ant must deal in order to obtain ordinary and usual com‐
mercial services.
 Condition 18: Not work in any occupation, business
or profession, or participate in any volunteer activity where
he has access to children under the age of 18 without the
prior approval of the supervising U.S. probation officer.
Tjader initially objected to only two of these conditions rel‐
evant to this appeal. First, he argued that Condition 12 (re‐
quiring that he provide financial information upon request)
was an “excessive intrusion” and “not rationally designed to
supervise him” because his crime was not financial in nature.
Second, he argued that Condition 16 (requiring psychosexual
evaluation and potentially counseling) was impermissible to
the extent that it authorized Abel Screening and plethysmo‐
graph examinations (tests that measure sexual interest) and
polygraph tests because those tests, he said, must be shown
to be reliable under Daubert before they could be used. (Tjader
objected to other conditions as well, but he does not challenge
them on appeal.)
The court addressed Tjader’s objections in detail, over‐
ruled them, and adopted the proposed conditions. The court
then asked Tjader whether it should read and justify the re‐
maining conditions or adopt the supervision plan’s recitation
of them and their explanations. Tjader responded that he
“waive[d] the reading of any justification of the additional
conditions that [he] did not object to.” He also acknowledged
that he reviewed the conditions with counsel and that he un‐
derstood them and their justifications. The court sentenced
4 No. 18‐2447
Tjader to seven years in prison and ten years of supervised
release, and it ordered him to pay restitution.
On appeal, Tjader again challenges Condition 12 (the
financial‐monitoring condition) and Condition 16 (the
evaluation and treatment condition), but he does so on new
grounds. For Condition 12, rather than argue as he did in the
district court that it is unduly burdensome, he now asserts
that the district court gave inadequate reasons for imposing
it. For Condition 16, he now primarily argues that the court
impermissibly delegated its authority to non‐judicial actors.
He also contests other conditions for the first time.
We review preserved arguments for abuse of discretion
and forfeited ones for plain error. See United States v. Bickart,
825 F.3d 832, 839 (7th Cir. 2016). Waived arguments—those
that are intentionally relinquished—we cannot review at all.
See United States v. Bloch, 825 F.3d 862, 873 (7th Cir. 2016).
Tjader waived all of his appellate arguments against the
supervisory conditions. When a defendant has received ad‐
vanced notice of conditions of supervised release and is in‐
vited to object to them in the district court, a “failure to object
… can amount to waiver.” United States v. Gabriel, 831 F.3d
811, 814 (7th Cir. 2016); see also United States v. Raney, 842 F.3d
1041, 1044 (7th Cir. 2016). Tjader had advanced notice of the
conditions because they were in the supervision plan, which
he received before sentencing. See United States v. Gumila, 879
F.3d 831, 838 (7th Cir. 2018); United States v. Lewis, 823 F.3d
1075, 1082 (7th Cir. 2016). The district court also confirmed
that Tjader had time to review them and that he understood
them. See Gumila, 879 F.3d at 838; Bloch, 825 F.3d at 873. And
before sentencing, when the district court invited Tjader to
present his objections to the conditions, Tjader raised some
No. 18‐2447 5
objections (not raised on appeal), but not others. We may infer
from his choice to raise these other objections that his decision
not to raise the ones he now advances on appeal was strategic
and intentional. See Gumila, 879 F.3d at 838; United States v.
Ranjel, 872 F.3d 815, 821–22 (7th Cir. 2017). Tjader’s decision
to waive an explanation of the remaining conditions—noting
that he understood those conditions and their justifications—
confirmed his intent. See Lewis, 823 F.3d at 1083. This conduct
resulted in a waiver of Tjader’s appellate challenges.1
Accordingly, we AFFIRM the district court’s judgment.
1 Tjader argues, and the government agrees, that the mandate to no‐
tify “third parties” of “the risks” that his “history” and “characteristics”
pose is vague. Tjader’s waiver of this point is dispositive. See Raney, 842
F.3d at 1044. We do, however, note that Tjader may later seek modification
of this condition. See 18 U.S.C. § 3583(e); United States v. Williams, 840 F.3d
865 (7th Cir. 2016) (per curiam). As the district court informed Tjader at
sentencing, he can ask the court to modify his conditions after he is re‐
leased to the extent such modifications are appropriate.