United States v. Ross

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-30204
Plaintiff-Appellee,
v.  D.C. No.
CR-05-207-WFN
JAMES DOUGLAS ROSS,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Washington
William Fremming Nielsen, District Judge, Presiding
Argued and Submitted
November 14, 2006—Seattle, Washington
Filed February 8, 2007
Before: Pamela Ann Rymer, Marsha S. Berzon, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Rymer
1553
UNITED STATES v. ROSS 1555
COUNSEL
Kathleen Moran, Federal Defenders of Eastern Washington &
Idaho, Spokane, Washington, for the defendant-appellant.
George J.C. Jacobs, III, Assistant United States Attorney,
Spokane, Washington, for the plaintiff-appellee.
OPINION
RYMER, Circuit Judge:
James Douglas Ross appeals a supervised release condition
imposed following his conviction for violating 18 U.S.C.
1556 UNITED STATES v. ROSS
§ 924(a)(1)(A), making a false statement or representation
regarding the acquisition of a firearm. We affirm.
I
Ross was administratively separated from the United States
Army by summary court-martial when he was caught trying
to mail a submachine gun from Iraq to his father’s home in
Spokane, Washington. Military Police found a cache of white
supremacist paraphernalia and several weapons hidden behind
ceiling tiles in Ross’s military quarters. After his discharge, a
Spokane County Sheriff’s Office deputy saw Ross passing out
flyers produced by The National Alliance, a neo-Nazi/white
supremacist organization that advocates race hatred, anti-
Semitism, and the overthrow of the United States government.
The National Alliance also owns a company that distributes
“white power” music CDs and a video game called “Ethnic
Cleansing.” Ross visited a website which functions as an
online community for white supremacists and has a chatroom
where he had discussions about weapons, one of which Ross
eventually bought for a confidential informant knowing that
the informant was a convicted felon who could not lawfully
possess a firearm. This transaction led to the charge of mak-
ing a false statement regarding the acquisition of a firearm on
which Ross entered a guilty plea. Based on the paraphernalia
uncovered during the military investigation, Ross’s distribu-
tion of National Alliance literature, and his use of the white
supremacist website, the Presentence Report recommended a
special condition of supervised release that Ross refrain from
associating with known neo-Nazi/white supremacist members
and affiliates and from possessing neo-Nazi/white suprema-
cist paraphernalia.
Ross agreed that he handed out National Alliance flyers,
but maintained that he was not a member and had no contact
with members. His counsel argued against the special condi-
tion, but acknowledged that being involved in white suprema-
cist groups can lead to criminal activity and that Ross was
UNITED STATES v. ROSS 1557
“somewhat impressionable.” Noting the seriousness of the
offense and Ross’s apparent white supremacy philosophy, the
district court was of the view that release should be condi-
tioned on Ross’s not being involved in organizations such as
the National Alliance and Aryan Nations and other white
supremacy groups. Accordingly, it imposed as a condition:
You shall not associate with known neo-Nazi/white
supremacist members, known neo-Nazi/white
supremacist affiliates, or any other organization that
advocates engaging in criminal activity or over-
throwing the United States government. In addition,
you shall not possess neo-Nazi/white supremacist
paraphernalia.
Ross appeals.
II
[1] A district court may impose discretionary conditions of
supervised release listed in 18 U.S.C. § 3563(b), as well as
“any other condition it considers to be appropriate.” Id.
§ 3583(d). The discretion is broad, but special conditions
must be “reasonably related” to the goals of deterrence, pro-
tection of the public, and rehabilitation of the offender. See id.
§§ 3583(d)(1), 3553(a). And conditions cannot involve any
“greater deprivation of liberty than is reasonably necessary for
the purposes” of supervised release. Id. § 3583(d)(2); United
States v. T.M., 330 F.3d 1235, 1240 (9th Cir. 2003).
[2] Ross faults the court’s findings as inadequate in relation
to the factors listed in § 3553(a) and given the liberty interest
implicated by the condition. For this he relies on United
States v. Williams, 356 F.3d 1045 (9th Cir. 2004). Williams,
however, presented quite a different situation. There, the con-
dition required administration of antipsychotic medication; as
the Supreme Court and we have recognized, freedom from
unwanted drugs undoubtedly is a significant liberty interest.
1558 UNITED STATES v. ROSS
Id. at 1053. So, before imposing such a serious infringement
of liberty, we held that a district judge should conduct a thor-
ough consideration of the § 3553(a) factors and articulate a
justification. Id. at 1055-56. Here, however, the infringement
of liberty is far more modest. We have frequently permitted
restrictions on supervised release that infringe on fundamental
rights, including First Amendment rights. See, e.g., United
States v. Rearden, 349 F.3d 608, 619-21 (9th Cir. 2003)
(upholding restrictions on possessing or using computer with
Internet access and possessing material depicting sexually
explicit conduct); United States v. Bee, 162 F.3d 1232, 1234
(9th Cir. 1998) (upholding restrictions on contact with chil-
dren and possession of sexually stimulating material); United
States v. Bolinger, 940 F.2d 478, 480-81 (9th Cir. 1991)
(upholding condition prohibiting participation in activities or
membership of motorcycle clubs); Malone v. United States,
502 F.2d 554, 555-57 (9th Cir. 1974) (upholding restrictions
on participating in any American Irish Republican movement,
from belonging to any Irish organization, and from visiting
Irish pubs). The liberty interest at stake in associating with
neo-Nazi/white supremacist groups and possessing related
material is no more weighty than participating in motorcycle
clubs or accessing the Internet. We have no difficulty under-
standing from the record why the district judge believed that
the interests of rehabilitation and public safety would be
served by separating Ross from neo-Nazi/white supremacist
influences.
[3] Special conditions “may seek to prevent reversion into
a former crime-inducing lifestyle by barring contact with old
haunts and associates, even though the activities may be
legal.” Bolinger, 940 F.2d at 480 (citing Malone, 502 F.2d at
556-57). Restricting Ross from associating with known neo-
Nazi/white supremacist members or affiliates is just such a
condition. It advances the purposes of supervised release like
the condition prohibiting a defendant convicted of exporting
firearms to the United Kingdom from associating with the
Irish Republican movement in Malone, and prohibiting a
UNITED STATES v. ROSS 1559
defendant convicted of being a felon in possession of a fire-
arm from being involved in any motorcycle club activities in
Bolinger. The Seventh Circuit reached a similar conclusion in
United States v. Showalter, 933 F.2d 573 (7th Cir. 1991),
where the defendant was also involved with a white suprema-
cist “skinhead” and “neo-Nazi” group and had been restricted
from participating in, or associating with, those who do par-
ticipate in a skinhead or neo-Nazi organization. Id. at 574. As
the court explained, Showalter needed to be separated from
other members of white supremacist groups “to have a chance
of staying out of trouble.” Id. at 575-76. The same appears for
Ross.
[4] Ross further maintains that prohibiting him from pos-
session of “neo-Nazi/white supremacist paraphernalia” is
broader than reasonably necessary because it includes legal
materials such as books, flags, and clothing, and that the con-
dition is unconstitutionally vague. As we have explained, the
condition is not too broad in relation to the goals of super-
vised release. We are unpersuaded that the restrictions lack
meaning to Ross or that they unnecessarily trammel on First
Amendment rights. Given his familiarity with Neo-Nazi orga-
nizations and materials, Ross will understand that the term
“neo-Nazi/white supremacist paraphernalia” refers to the
objects that members of such groups tend to possess, for
example, uniforms, flags, pictures, memorabilia, or other
symbols of white supremacy with images such as a swastika,
references to “Heil Hitler,” raised fists, “SS,” and the like. See
United States v. Allen, 341 F.3d 870, 874, 885-86 (9th Cir.
2003) (describing evidence of neo-Nazi supremacist parapher-
nalia introduced in the trial of skinheads). Thus, he is on
notice that the condition bars him from possessing a neo-Nazi
uniform (combat boots, arm bands with swastikas, t-shirts
with symbols), or neo-Nazi and white supremacist hate music
and racist, Nazi-related propaganda containing “overt mes-
sages of racial hatred.” See Monteiro v. Temple Union High
School Dist., 158 F.3d 1022, 1035 (9th Cir. 1998) (Boo-
chever, J., concurring). The restriction on association is lim-
1560 UNITED STATES v. ROSS
ited to known neo-Nazi white supremacist members.
Construed in this way, the condition is neither too broad nor
too uncertain. Should any difficulty arise on the margin, Ross
can always seek clarification from the court.
[5] We conclude that the condition as imposed and as con-
strued is reasonably related to Ross’s rehabilitation and to
protection of the public. Accordingly, we affirm.
AFFIRMED.