United States v. Comer

5 F.4th 535

UNITED STATES of America, Plaintiff – Appellee,

v.Marysa Renee COMER, Defendant – Appellant.

No. 19-4466

United States Court of Appeals, Fourth Circuit.

Argued: May 7, 2021

Decided: July 21, 2021

ARGUED: Megan Coyle Hoffman, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: Anthony Martinez, Federal Public Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. R. Andrew Murray, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

Before KEENAN, WYNN, and THACKER, Circuit Judges.

Affirmed by published opinion. Judge Wynn wrote the opinion, in which Judge Keenan and Judge Thacker joined.

WYNN, Circuit Judge:

Defendant Marysa Comer was convicted of conspiring to engage in sex trafficking after she lured women into prostitution via social media and, in at least one case, attempted to use Facebook to force a young woman who had left her trafficking ring to return. Later, while on supervised release from her trafficking conviction, Comer used Facebook to help broker a drug deal.

In light of this history, the district court imposed a special condition of supervised release stating that Comer "shall not have any social networking accounts without the approval of [her] U.S. Probation Officer." J.A. 115.¹ On appeal, Comer challenges the imposition of this social networking condition on several grounds. Finding no error, we affirm.

Comer also contends that the district court should have ordered her probation officer not to sit at the Government's table during her supervised-release hearing. While we find no plain error in the district court's management of the hearing, we join the Seventh Circuit in cautioning against sitting Probation with the Government while in the courtroom.

I.

If not for the predations of a much older man, Comer may never have encountered the federal justice system. From approximately 2009 through 2014, David Delay ran a sex-trafficking operation in Washington State. He inveigled women into prostitution by telling them that he was making an HBO documentary about escorting and that if they turned over their earnings to him, he would pay each of them $20 million once his documentary was produced.

In March 2014, Delay began an online romantic relationship with Comer, then a 19-year-old living in North Carolina. Delay tricked Comer into joining him in Washington and promptly began to pimp and physically and emotionally abuse her.

Comer eventually stopped having sex for money and started luring new women to the operation through online dating websites. Comer also began to use "emotional, verbal, and physical abuse to keep [her victims] engaged in prostitution." S.J.A. 124. Her conduct regarding a developmentally delayed high-school student known as M.K. illustrates this abuse.

Comer met M.K. on the dating website Meetme.com and persuaded her to leave her family and to move in with Delay and Comer. Once Delay and Comer had M.K. in their grasp, Comer pimped and physically abused M.K., "punch[ing], slap[ping], shov[ing], kick[ing], and throw[ing] things at her" if she refused to sleep with johns. Id. at 125. She also controlled M.K. in other ways, such as by monitoring M.K.’s communications on her phone and computer. M.K. eventually braved her fear of angering Delay and Comer and left the operation—at which point Comer demanded her return, threatening to post explicit photos of her on Facebook if she did not comply. When M.K. refused to return, Comer made good on her threat—she locked M.K. out of her own Facebook account and then used the account to post photos of M.K. naked and in salacious poses.

Comer was arrested in January 2015 and later that year she pled guilty in the Western District of Washington to conspiracy to engage in sex trafficking by force, fraud, and coercion in violation of 18 U.S.C. §§ 1591(a)(1) and 1594(c). In 2016 and early 2017, Comer violated several conditions of her bond, including "by using a computer and accessing the internet" and by ordering an unauthorized smartphone online. Id. at 121–22. As a result, her bond was revoked in March 2017 and she was incarcerated pending sentencing. In December 2017, Comer was sentenced to three years’ imprisonment and five years of supervised release.

Comer was released and began her term of supervision in February 2018. A few months later, she returned to North Carolina to serve her period of supervised release under the jurisdiction of the Western District of North Carolina.

Shortly thereafter, Comer began violating the conditions of her release. First, she violated a condition barring her from communicating with felons by using an encryption app on her phone to communicate with a felon named Jordan whom she met on Facebook. Despite knowing that Jordan faced felony charges for financial crimes, Comer "helped [Jordan] sell drugs to her friends" by referring drug-seeking friends to Jordan.² Id. at 150. Second, Comer violated a condition consenting to ongoing monitoring of her electronic devices by maintaining a hidden, unmonitored phone. This was no inadvertent violation. According to the testimony of her probation officer, Comer conceded that her father told her to report the phone to the probation officer, but she declined because "she figured [P]robation wouldn't allow it." J.A. 70.

The district court held a revocation hearing in June 2019. The court concluded that Comer had violated five terms of her release, revoked her supervision, and sentenced her to time served and five additional years of supervised release.³ The effect of the hearing was thus to extend the end date of her supervision from February 2023 to June 2024. The district court also imposed a new, additional special condition stating that Comer was "not [to] have any social networking accounts without the approval of the U.S. Probation Officer." Id. at 115.

The social networking condition was discussed at length during the hearing. The Government argued the condition was appropriate because of Comer's sex-trafficking activities, which included using social networking sites like Meetme.com and Facebook, and because of her more recent use of Facebook to facilitate drug activity. Comer objected to the condition, primarily on the grounds that it was a "greater deprivation of liberty than necessary" and "an impermissible delegation of [judicial] authority to [P]robation." Id. at 102–03. Comer's probation officer, Chelsey Padilla, described how she planned to enforce the social networking condition, stating that she "would not keep [Comer] from reading the news" or "going on to [the professional networking website] LinkedIn," but would prevent her from using Facebook, Tinder, and "other dating apps" where she might "meet[ ]" or "recruit[ ]" other women. Id. at 99–100.

The district court approved of the social networking condition based on Comer's conduct while in Washington and her post-release misdeeds in North Carolina. Thereafter, the district court issued its judgment and Comer timely appealed.

II.

On appeal, Comer argues that the social networking condition: (1) is unconstitutionally vague; (2) is overbroad; (3) violates her fundamental liberties; and (4) impermissibly delegates to her probation officer the power to determine what constitutes a social networking website. We disagree.

A.

Comer first argues that the social networking condition should be vacated because it "contains vague language that does not provide [her] with fair notice of what behavior is actually restricted." Opening Br. at 7. We review vagueness challenges to conditions of supervised release de novo. United States v. Sandidge , 863 F.3d 755, 758 (7th Cir. 2017) ("[A] vagueness challenge is a legal question on which we owe no deference to the district court; our review is de novo.").

"The void for vagueness doctrine is rooted in the Due Process Clause of the Fifth and Fourteenth Amendments." Manning v. Caldwell , 930 F.3d 264, 272 (4th Cir. 2019). It is principally concerned with providing individuals with adequate notice of what conduct they cannot engage in and with delineating clear limits on the enforcement power of the state. See United States v. Van Donk , 961 F.3d 314, 324 (4th Cir. 2020). Thus, as we recently explained in United States v. Van Donk , "[a] condition of supervised release is unconstitutionally vague if it doesn't give a probationer ‘fair notice of the [punished conduct]’ or is ‘so standardless that it invites arbitrary enforcement.’ " Id. at 323–24 (quoting Johnson v. United States , 576 U.S. 591, 595, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) ).

Applying this standard, courts have vacated conditions of supervised release that, for example, prohibited a father from contacting his son except "for normal familial relations." United States v. Hall , 912 F.3d 1224, 1226 (9th Cir. 2019) (per curiam). Other courts have found impermissibly vague, for instance, conditions banning "any use of alcohol that adversely affects [the] defendant's employment, relationships, or ability to comply with the conditions of supervision," Sandidge , 863 F.3d at 758–59 (alteration in original), as well as requirements to "support ... dependents and meet other family responsibilities," "work regularly at a lawful occupation," and, as "directed by [a] probation officer," to "notify third parties of risks that may be occasioned by [the defendant's] personal history or characteristics," United States v. Evans , 883 F.3d 1154, 1162–64 (9th Cir. 2018).

But we have never required district courts to craft their conditions of supervised release with exhaustive specificity. See United States v. Hamilton , 986 F.3d 413, 420 (4th Cir. 2021) ("We recognize the difficulty of writing restrictions that protect the public without turning the conditions sheet into a prolix code of...