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United States v. Egli.

No. 19-4140. D.Utah. Judge Ebel. Child Pornography Convictions—Revocation of Probation—Special Conditions of Supervised Release—Absolute Prohibition on Computer and Internet Use—18 USC § 3583(d)(2)—Waiver versus Forfeiture—Plain Error.

September 20, 2021

Defendant pleaded guilty to possessing child pornography in 2004. He was sentenced to 51 months’ incarceration followed by 60 months’ supervised release. Defendant’s supervised release conditions prohibited him from possessing or using a computer with internet access without the court’s prior written approval, using a data encryption technique or program, and viewing or accessing pornography in any format. In 2008, defendant violated the supervised release terms by possessing pornography and an unauthorized laptop with internet access, using his mother’s computer, and maintaining two email accounts. He was sentenced to additional incarceration followed by 60 months’ supervised release with, in addition to the previous terms, a prohibition on any computer use without the probation office’s prior approval. In 2010, within two months of his second release from incarceration, defendant again violated his release terms by possessing an unauthorized computer and pornography, including child pornography. The court sentenced defendant to 120 months’ incarceration followed by a lifetime term of supervised release with similar terms to the previous conditions.

Within six days of completing his third term in 2018, probation officers visited defendant’s apartment and found an internet-capable video game console and a cell phone with an active email account. Defendant admitted to various supervised release violations and was taken back into custody. The probation office recommended reimposition of the supervised release conditions. At the revocation hearing, defendant objected to reimposition of the special condition restricting his computer and internet access. The district court modified the special conditions to allow for employment-related computer and internet use and for defendant to possess a single personal computer to visit certain benign websites, send emails, and play certain single-player games. The court sentenced defendant to time served and again placed him on supervised release for life.

Less than a month later, defendant was taken back into custody for supervised release violations. At the subsequent revocation hearing, the court revoked defendant’s supervised release. It sentenced him to 11 months’ imprisonment and another lifetime term of supervised release, imposing a ban on all computer and internet access and prohibiting him from engaging in any employment that involved internet access. Defense counsel objected to the lifetime length of supervision but did not object to the internet-related special conditions. The district court entered a written judgment imposing the special release conditions but did not make any factual findings.

On appeal, defendant challenged the special conditions of his supervised release, arguing that they violate 18 USC § 3583(d)(2) by imposing a supervised release condition that involves a greater deprivation of liberty than is reasonably necessary to deter criminal activity, protect the public, and promote rehabilitation. As an initial matter, the Tenth Circuit determined that defendant’s failure to object on this ground at the district court constituted forfeiture, but not waiver, of his argument, so his appeal was subject to plain error review.

On the merits, while the Tenth Circuit has been hesitant to approve absolute bans on internet access, it has acknowledged that a ban might be warranted in an extreme case. Here, defendant’s glaring history of repeated violations of lesser restrictions presents an extreme case; he violated terms of supervised release on four separate occasions, including two recent violations about one month apart, only one month following his release from incarceration. Further, the requisite extremeness is supported by the record, which reflects that all other less restrictive means have not worked and no better alternatives to an absolute ban remain. Though the district court erred in failing to make factual findings supporting a blanket ban, defendant failed to challenge the lack of findings in his opening brief and waived such argument.

The imposition of the special condition of supervised release was affirmed.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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