United States v. Birkedahl

973 F.3d 49

UNITED STATES of America, Appellee,

v.Eric A. BIRKEDAHL, Defendant-Appellant.

No. 19-2304

August Term 2019

United States Court of Appeals, Second Circuit.

Submitted: June 2, 2020

Decided: August 25, 2020

Jay S. Ovsiovitch, Assistant Public Defender, Federal Public Defender's Office, Rochester, New York, for Defendant-Appellant Eric A. Birkedahl.

Tiffany H. Lee, Assistant United States Attorney, for James P. Kennedy, Jr., United States Attorney for the Western District of New York, Buffalo, New York, for Appellee United States of America.

Before: Sullivan, Park, And Nardini, Circuit Judges.

Richard J. Sullivan, Circuit Judge:

Defendant-Appellant Eric Birkedahl, who is serving a 24-month custodial sentence after pleading guilty to possession of child pornography in violation of 18 U.S.C. § 2252A, appeals three conditions of supervised release that will commence after he completes his term of imprisonment. Specifically, Birkedahl contends that: (1) the special condition requiring him to attend a sex offense treatment program (the "treatment condition") is impermissibly vague; (2) the special condition that requires him to be tested to verify his compliance with the conditions of his supervised release (the "verification testing condition") improperly permits the use of a computerized voice stress analyzer ("CVSA") that he claims is unreliable; and (3) the standard notification of risk condition, which contemplates that Birkedahl may be required to notify third parties that he poses a risk to them, delegates too much discretion to the probation officer. As to the CVSA, we hold that the challenge is not ripe because the efficacy of computerized voice stress analyzers in promoting sentencing goals is subject to change with technological advances before Birkedahl's term of supervision begins. We dispose of the remaining challenges under our existing precedents, finding the challenge to the risk condition also to be unripe and the challenge to the treatment condition to be meritless. We therefore dismiss the unripe challenges and affirm the remainder of the district court's judgment.

I. BACKGROUND

On April 9, 2019, Birkedahl waived indictment and pleaded guilty in the United States District Court for the Western District of New York (Geraci, J. ) to one count of possession of child pornography in violation of 18 U.S.C. § 2252A. Birkedahl waived his right to appeal a sentence within or below an agreed-upon Guidelines range of 97 to 121 months' imprisonment and a supervised release period of five years to life. Before sentencing, Birkedahl objected to several conditions of supervised release proposed in the presentence investigation report, including the two special conditions and the standard risk condition that he challenges on appeal.

At sentencing, the district court permitted oral argument on Birkedahl's objections. With respect to the treatment condition,¹ Birkedahl argued that it was impermissibly vague because it failed to adequately specify which details of his sex offense treatment would be supervised by the probation officer. Explaining that "to spell out every single detail would be overwhelming for the condition," the probation officer present at sentencing affirmed that probation would supervise the details of the court-imposed conditions "to be able to give [the court] a report on ... compliance or non-compliance," not to act as a counselor or treatment provider as the defense suggested could be the case. App'x at 58–59. The district court found that the condition was reasonably related to the offense and that it provided that the probation officer would merely supervise Birkedahl's participation in treatment "and report back to the [c]ourt," "not that [the officer] will determine what the details are or determine what the particular aspects of the program are." Id. at 59.

Arguing that the CVSA's reliability in detecting deception lacked a scientific basis, Birkedahl also asked the court to strike the reference to the CVSA in the verification testing condition,² or in the alternative, to hold a hearing regarding the reliability of the CVSA. In response, the probation officer explained that the CVSA could be beneficial to Birkedahl because it could be provided at no cost, while polygraph testing costs "approximately $275" per evaluation. Id. at 61. As relevant here, the court retained the CVSA reference without holding a hearing. It also clarified that the probation office could use the CVSA, as well as a polygraph, without the court's prior approval, though the use of other devices would require court approval.

The defense finally noted its objection to the risk condition,³ and relied on its written submission without elaboration. The court also overruled that objection.

The district court ultimately imposed a below-Guidelines sentence of 24 months, to be followed by a five-year term of supervised release. The court then reiterated that the term of supervised release was subject to various conditions, including special conditions such as the treatment condition and verification testing condition.

On appeal, Birkedahl reiterates his challenges to those special conditions and the standard risk condition. First, he maintains that the sex offense treatment condition is vague and must be vacated and remanded for the district court to explain what it means for probation to supervise the administrative details of the treatment. Second, Birkedahl argues that he should not be subject, without a hearing, to the condition requiring him to submit to a CVSA because that technology is not scientifically reliable. Third, Birkedahl argues that the standard risk condition imposed gives the probation officer too much discretion and that the case should be remanded for the district court to clarify that it, not probation, will determine whether a person should be notified. We address each challenge in turn.

II. DISCUSSION

"A district court retains wide latitude in imposing conditions of supervised release," and this Court generally reviews the imposition of such conditions "for abuse of discretion." United States v. MacMillen , 544 F.3d 71, 74 (2d Cir. 2008). "When a challenge to a condition of supervised release presents an issue of law, we review ... de novo , bearing in mind that any error of law necessarily constitutes an abuse of discretion." Id. at 74–75. As a general matter, "[a] court may order special conditions of supervised release" if they are "reasonably related" to the statutory purposes of supervision: namely, "the nature and circumstances of the offense and the history and characteristics of the defendant"; "the need for the sentence imposed to afford adequate deterrence"; "the protection of the public"; and "the rehabilitative and medical care needs of the defendant." United States v. Parisi , 821 F.3d 343, 348 (2d Cir. 2016) (internal quotation marks omitted). Special conditions "must also involve no greater deprivation of liberty than is reasonably necessary" to implement the statutory purposes of sentencing, and "must be consistent with any pertinent [Sentencing Commission] policy statements." Id. (internal quotation marks omitted).

A. The Sex Offense Treatment Condition

Birkedahl first contends that the special condition requiring him to participate in a sex offense treatment program is erroneously vague as to the scope of the probation officer's supervisory role. He concedes that it is permissible for probation to have discretion over "administrative aspects of the treatment such as the ‘selection of a provider and the schedule.’ " Birkedahl Br. at 22 (emphasis omitted) (quoting United States v. Maggese , 785 F. App'x 879, 881 (2d Cir. 2019) ). Nevertheless, Birkedahl argues that because the condition fails to delineate the other functions that constitute administrative aspects within the probation officer's supervision, it raises concerns "about the amount of discretion ... given to the probation officer not listed in the condition." Id. at 21.

The challenge is meritless. To be sure, "a district court may not delegate to the Probation Department decisionmaking authority which would make a defendant's liberty itself contingent on a probation officer's exercise of discretion." United States v. Matta , 777 F.3d 116, 122 (2d Cir. 2015). But as Birkedahl himself recognizes, we have long upheld delegations "over certain minor details of supervised release," including "the selection of a therapy provider or treatment schedule." Id.

Here, the district court made clear that it was delegating to the probation officer discretion over only "the details of the defendant's participation in the program, including the selection of a provider and schedule." App'x at 75–76. As we recently explained in a summary order addressing a similar challenge to a sex offense treatment condition, "[t]he court's use of the word ‘including’ cannot reasonably be understood as expanding Probation's decisionmaking authority beyond the administrative details of treatment such that it rendered [Birkedahl's] ‘liberty itself contingent on a probation officer's exercise of discretion.’ " United States v. Leone , 813 Fed.Appx. 665, 668 (2d Cir. 2020) (quoting Matta , 777 F.3d at 122 ); see also United States v. Peterson , 248 F.3d 79, 85 (2d Cir. 2001) (holding that a district court may leave to the probation officer's discretion "a variety of details, including the selection of a therapy provider and schedule" (emphasis added)). Accordingly, the district court did not abuse its discretion in imposing this condition.

B. The Verification Testing Condition

Birkedahl's next challenge concerns the verification testing condition, which permits the probation officer to require Birkedahl to take a polygraph examination, CVSA, or other verification test as approved by the court. As a general matter, this Court has upheld the use of verification testing in supervising defendants convicted of sex offenses, recognizing "the strong deterrent value of...