United States v. Goddard

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 07-50402
Plaintiff-Appellee, D.C. No.
v.  CR-07-00068-
ROBERT RAY BURNETT GODDARD, FMC-1
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the Central District of California
Florence-Marie Cooper, District Judge, Presiding
Argued and Submitted
July 17, 2008—Pasadena, California
Filed August 11, 2008
Before: Cynthia Holcomb Hall, Pamela Ann Rymer, and
Andrew J. Kleinfeld, Circuit Judges.
Opinion by Judge Rymer
10339
UNITED STATES v. GODDARD 10343
COUNSEL
Elizabeth A. Newman, Deputy Federal Public Defender, Los
Angeles, California, for the defendant-appellant.
Jennifer A. Corbet, Assistant United States Attorney, Los
Angeles, California, for the plaintiff-appellee.
OPINION
RYMER, Circuit Judge:
Robert Ray Burnett Goddard, convicted of possession of
child pornography in violation of 18 U.S.C. § 2252A(a)
(5)(B), challenges a number of special conditions of super-
vised release, including conditions that restrict his use of
computer-related devices, those with whom he may associate,
and his use of a post office box. The parties agree to strike
portions of several conditions where the written judgment dif-
fers from the oral pronouncement.1 We believe that two of the
1
United States v. Allen, 157 F.3d 661, 668 (9th Cir. 1998) (holding that
an unambiguous oral sentence controls even though the written judgment
and commitment order reflects the sentencing judge’s intended sentence).
Conditions 7, 8, 12, 15, 17, and 19 are subject to this infirmity, and are
to be conformed on remand to the oral order of sentence.
10344 UNITED STATES v. GODDARD
computer conditions are problematic if broadly construed,
because they could be read to prohibit all use of a computer
except for work and to make the use of a work computer
impracticable. However, these conditions involve no greater
a deprivation of liberty than is reasonably necessary if nar-
rowly construed to allow personal computer use as approved
by the probation officer and not to condition routine or auto-
matic software additions, deletions, upgrades, updates, instal-
lations, repairs, or other modifications on prior approval. 18
U.S.C. § 3583(d)(2). So construed, we approve the computer
conditions and conclude that the remaining conditions are also
reasonable.
I
Goddard viewed, downloaded, and possessed child pornog-
raphy, and admitted that he was sexually stimulated by it. He
went on the Internet to look at child pornography every week
from 1997 (when he first obtained a computer) through his
arrest in 2005. Goddard also made pornographic images of
children available for others to download on peer-to-peer net-
works like Kazaa. The images were graphic, explicit, and in
some cases sadistic or masochistic. Goddard had a prior con-
viction for sexual battery involving a touching of a 13-year-
old girl on her way to school.
He pled guilty, and was sentenced to a custodial term of 63
months, followed by ten years of supervised release. Goddard
objected to most, but not all, of the special conditions. We
review those conditions to which he interposed an objection
for abuse of discretion, see United States v. Stephens, 424
F.3d 876, 879 (9th Cir. 2005), and the rest for plain error, see
United States v. Rearden, 349 F.3d 608, 614 (9th Cir. 2003).
[1] A district court has discretion to order special condi-
tions of supervised release pursuant to § 3583(d) if the condi-
tions are reasonably related to the factors set forth in 18
U.S.C. § 3553(a). Id. at 618. In sum, conditions are permissi-
UNITED STATES v. GODDARD 10345
ble if they are reasonably related to the goals of deterrence,
protection of the public, or rehabilitation of the offender, tak-
ing into account the offender’s history and personal character-
istics, and involve no greater deprivation of liberty than is
reasonably necessary for the purposes of supervised release.
Id.
II
Computer Conditions
Condition 5 permits use of computers and computer-related
devices, screen user names, passwords, e-mail accounts, and
internet service providers as approved by the probation officer.2
Condition 6 subjects computers, computer-related devices,
and peripheral equipment that Goddard uses to search and sei-
zure and installation of monitoring software or hardware,
which he is ordered not to remove or modify without prior
approval of the probation officer.3 Condition 7 provides: “The
defendant shall use computers/devices only within the scope
of his employment. The defendant shall not access a computer
2
Condition 5 states: “The defendant shall use only those computers and
computer-related devices, screen user names, passwords, e-mail accounts,
and internet service providers (ISPs) as approved by the Probation Officer.
Computers and computer-related devices include, but are not limited to,
personal computers, personal data assistants (PDAs), internet appliances,
electronic games, and cellular telephones, as well as their peripheral
equipment, that can access, or can be modified to access, the internet, elec-
tronic bulletin boards, other computers, or similar media.”
3
Condition 6 states: “All computers, computer-related devices, and their
peripheral equipment, used by the defendant shall be subject to search and
seizure and the installation of search and/or monitoring software and/or
hardware, including unannounced seizure for the purpose of search. The
defendant shall not add, remove, upgrade, update, re-install, repair, or oth-
erwise modify the hardware or software on the computers, computer-
related devices, or their peripheral equipment, nor shall he hide or encrypt
files or data without the prior approval of the Probation Officer. Further,
the defendant shall provide all billing records, including telephone, cable,
internet, satellite, and the like, as requested by the Probation Officer.”
10346 UNITED STATES v. GODDARD
for any other purposes. [The defendant shall immediately
report any changes at his place of employment in regard to his
internet access and computer use including but not limited to
his internet e-mail.”] [“You’re to . . . immediately report any
change of employment to your probation officer.”]4
Goddard acknowledges that these conditions are reasonably
related to his offense, but argues that they are unnecessarily
restrictive as they effect a total ban on personal computer use.
He further maintains that Condition 6 is overbroad because it
requires prior approval to complete even simple software
updates and is unnecessary given the government’s ability to
monitor.
[2] We see no abuse of discretion with respect to Condition
5; it is consistent with conditions we have previously found
permissible. See, e.g., Rearden, 349 F.3d at 620-22; United
States v. Antelope, 395 F.3d 1128, 1142 (9th Cir. 2005).
[3] Likewise, the concept of monitoring and most of Condi-
tion 6 is consistent with Rearden. Subjecting computers and
other devices able to access the Internet to monitoring, search
and seizure is critical to preventing Goddard from viewing or
obtaining child pornography, and requiring him to provide
billing records is reasonably related to this objective. Accord
United States v. Jeremiah, 493 F.3d 1042, 1046 (9th Cir.
2007) (monitoring finances permissible for defendant who
failed to pay restitution). However, as a practical matter, that
part of Condition 6 which requires Goddard to obtain prior
approval before making any software modifications is both
unworkable and overbroad. Software on any computer con-
4
The version of the last sentence in the written judgment is enclosed in
the first set of brackets. The orally-delivered version is in the second set
of brackets. Although the parties dispute whether the oral version is
ambiguous, it appears clear to us and clearly different from the written
version. Therefore, the last sentence of Condition 7 in the written judg-
ment is stricken, and the orally-delivered version is substituted.
UNITED STATES v. GODDARD 10347
nected to the Internet changes constantly. Broadly applied, the
software modification portion of Condition 6 would prevent
Goddard from using any computer at work without continu-
ally contacting his probation officer. This is more restrictive
than necessary. Nevertheless, this portion of Condition 6 can
reasonably be applied if construed not to condition routine or
automatic software additions, deletions, upgrades, updates,
installations, repairs, or other modifications on prior approval.
[4] Condition 7 is different. While there are ample reasons
to restrain Goddard’s use of computers, it is problematic to
prohibit all use of a computer for any purpose outside of
work. It is possible to interpret Condition 7 as doing this, for
it allows Goddard to use computers “only within the scope of
his employment” and states that “[t]he defendant shall not
access a computer for any other purpose.” Although we and
other courts have upheld limitations on the use of computers
and internet access without prior approval of the probation
office, see Rearden, 349 F.3d at 621, we have never approved
a total ban, and other courts have disapproved conditions pre-
cluding such use altogether. See, e.g., United States v. Sofsky,
287 F.3d 122, 126 (2d Cir. 2002) (condition prohibiting use
of a computer or the Internet without prior approval of the
probation office); United States v. Freeman, 316 F.3d 386,
391-92 (3d Cir. 2003) (condition forbidding either possession
of computer or use of internet service without approval);
United States v. White, 244 F.3d 1199, 1205-07 (10th Cir.
2001) (condition totally banning internet access). We need not
decide how much is too much in this case, however, because
Condition 7 does not have to be read as broadly as Goddard
suggests it might be read. Rather, reasonably construed in
context, Condition 7 means that at work, Goddard shall use
computers and computer-related devices only within the
scope of his employment. In other words, he is prohibited
from using his work computer for personal purposes. Condi-
tion 5, on the other hand, governs — and permits — personal
use of computers and computer-related devices as approved
by the probation officer. We believe this construction com-
10348 UNITED STATES v. GODDARD
ports with the district court’s overall intention, and with
§ 3583(d).
Associational Conditions
Conditions 16-19 limit where Goddard can work and live.
Condition 16 prohibits working in an environment that
causes regular contact with persons under the age of 18,5 Con-
dition 17 precludes working for a company whose principle
product involves materials depicting sexually explicit conduct,6
and Condition 18 requires employment to be approved by the
probation officer.7 Goddard submits that the work restrictions
are impermissible under § 5F1.5 of the Guidelines because
there is no reasonable relationship between possessing child
pornography and working in a warehouse, as he has in the
past. He also submits they last too long, but we don’t see how
given that the term of supervised release is ten years. The
government defends the conditions, pointing out that they do
not prevent Goddard from doing his past work where he did
not, and will not, regularly contact minors.
[5] Section 5F1.5 allows restrictions that prohibit a defen-
dant from engaging in a specified occupation, business, or
5
Condition 16 states: “The defendant shall not affiliate with, own, con-
trol, volunteer and/or be employed in any capacity by a business and/or
organization that causes him/her to regularly contact persons under the age
of 18.”
6
Condition 17 states: “The defendant shall not affiliate with, own, con-
trol, volunteer and/or be employed in any capacity by a business whose
principal product is the production and/or selling of materials depicting
and/or describing ‘sexually explicit conduct,’ as defined at 18 U.S.C.
§ 2256(2).”
7
Condition 18 states: “The defendant’s employment shall be approved
by the Probation Officer, and any change in employment must be pre-
approved by the Probation Officer. The defendant shall submit the name
and address of the proposed employer to the Probation Officer at least 10
days prior to any scheduled change.”
UNITED STATES v. GODDARD 10349
profession, or that limit the terms on which he may do so, if
the court determines that there is a “reasonably direct relation-
ship” between the defendant’s work and the conduct relevant
to the offense, and that the restriction is necessary to protect
the public because, without it, the defendant will continue to
engage in similar unlawful conduct. U.S.S.G. § 5F1.5. This
standard for occupational restrictions applies on top of the
criteria in § 3583(d). However, heightened scrutiny is not trig-
gered here because Conditions 16-18 do not restrict God-
dard’s ability to work as a warehouse foreman, his occupation
before he was convicted. See United States v. Stoterau, 524
F.3d 988, 1009 (9th Cir. 2008). Goddard’s concern that
minors might inadvertently walk into the warehouse portion
of the building is misplaced, for the conditions have to do
with regular, not accidental, contact with minors. Considering
the goals of deterrence, rehabilitation, and protection of the
public, the district court had discretion to impose Conditions
16 and 17, and did not plainly err in imposing Condition 18.
They aim to keep Goddard, whose offense was possessing
child pornography and who had previously been convicted of
groping a teenage girl, from being around minors and being
exposed to sexually explicit material.
[6] The district court properly exercised its discretion in
requiring prior approval of Goddard’s residence as well. Con-
dition 19 is valid for essentially the same reasons as the work
restrictions.8 Goddard contends the condition is unnecessary
because other conditions, which require him to register as a
sex offender and restrict him from going to or working at
places frequented by minors, already cover the concerns it
addresses. However, prior approval of where he lives is rea-
sonably related to deterrence, rehabilitation and protecting the
8
Condition 19 states in pertinent part: “The defendant’s residence shall
be approved by the Probation Officer, and any change in residence must
be pre-approved by the Probation Officer. The defendant shall submit the
address of the proposed residence to the Probation Officer at least 10 days
prior to any scheduled move.”
10350 UNITED STATES v. GODDARD
public because it assists the probation officer in monitoring
his proximity to minors, and in turn, keeping him away from
them. See United States v. Bee, 162 F.3d 1232, 1235-36 (9th
Cir. 1998) (requiring prior approval of probation officer
before having contact with children or loitering near schools,
parks, playgrounds, and the like that are primarily used by
children under 18).
Mail Conditions
[7] Condition 13 requires Goddard to obtain approval from
the probation officer before using a post office box or receiv-
ing mail through a private carrier.9 Goddard questions it on
the ground that he did not use the mails when committing his
offense, and there is no evidence that he ever used a post
office box or private carrier for any improper purpose. How-
ever, we upheld a virtually identical condition in Stoterau
against a similar challenge. 524 F.3d at 1008. Like Goddard,
Stoterau had used the Internet to obtain child pornography,
yet we found the mail restriction reasonably related to the
goal of specific deterrence given that “mail and the Internet
are both channels for the transmission of child pornography.”
Id. (citing United States v. Fellows, 157 F.3d 1197, 1199 (9th
Cir. 1998) where the defendant received child pornography
through the mail and the Internet). Further, we thought it rea-
sonable to infer that people might choose to receive mail else-
where to conceal their identity. 524 F.3d at 1008. And, we
believed that the condition was not unnecessarily restrictive
because it left the defendant free to access the mail through
his residential address or through a post office box upon
approval of his probation officer. Id. For the same reasons,
and for the additional reason that it is rational to predict that
Goddard might try to use the mail for the exchange of child
9
Condition 13 states: “The defendant shall not own, use or have access
to the services of any commercial mail-receiving agency, nor shall he/she
open or maintain a post office box, without the prior approval of the Pro-
bation Officer.”
UNITED STATES v. GODDARD 10351
pornography in the future in light of the restrictions imposed
on his access to the Internet, we conclude that Condition 13
is reasonably related to the goals of his supervised release and
imposes no greater a deprivation of liberty than is reasonably
necessary to discourage him from obtaining child pornogra-
phy.
III
We hold that the district court did not abuse its discretion
(or plainly err) in imposing Conditions 5, 13, 16, 17, 18, or
19.
We also conclude that Condition 6 which, as we construe
it, does not condition routine or automatic software additions,
deletions, upgrades, updates, installations, repairs, or other
modifications on prior approval, is reasonable under
§ 3583(d). Similarly, Condition 7 comports with § 3583(d), as
we interpret it to mean that at work, Goddard shall use com-
puters and computer-related devices only within the scope of
his employment.
Finally, finding it necessary to resolve differences between
the oral sentence and the written judgment, we remand for the
district court to change Conditions 7, 8, 12, 15, 17 and 19 as
follows:
Condition 7 — Change the last sentence to read:
“The defendant shall immediately
report any change of employment
to his probation officer.”
Condition 8 — Strike: “including submission to
risk assessment evaluation(s), and
physiological testing, such as poly-
graph, plethysmograph, and Abel
testing.”
10352 UNITED STATES v. GODDARD
Condition 12 — Strike: “and/or describing”
Condition 15 — Strike: “/prior offense”
Condition 17 — Strike: “and/or describing”
Condition 19 — Strike: “The Court authorizes the
Probation Officer to disclose the
Presentence Report, and/or any
previous sex offender or mental
health evaluations or reports, to the
treatment provider. The treatment
provider may provide information
(excluding the Presentence
Report), to State or local social
service agencies (such as the State
of California, Department of
Social Services), for the purpose of
the client’s rehabilitation.
The Court recommends that the
Bureau of Prisons conduct a men-
tal health evaluation of the defen-
dant and provide all necessary
treatment.”
AFFIRMED IN PART; REMANDED IN PART.