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Internet Case Analysis

Given the ubiquity of the Internet, and the growth of Internet-facilitated crime, it is noteworthy that this is the first Seventh Circuit case to consider the legality of a condition of supervised release barring Internet use without permission.

Even more noteworthy is the degree of the court’s vehemence against sentencing courts imposing such a condition. Of course, this is a fraud conviction that did not involve use of the Internet.

Were such a condition to be imposed on a sex-offender or a fraud who made extensive use of the Internet to commit his crimes, a different tone would likely be discernible.

Nevertheless, the only previous reference by the Seventh Circuit to conditions limiting Internet access is found in U.S. v. Sines, 303 F.3d 793, 801 (7th Cir. 2002).

There, the court noted with apparent approval that the Third Circuit had upheld a total prohibition on Internet access, in United States v. Crandon, 173 F.3d 122 (3d Cir. 1999).

Here, however, the court distinguished Crandon, and limited it to instances where the Internet was extensively used as a tool to commit the crimes at issue. Instead, the court quoted the recent Freeman case, which also distinguished Crandon.

Also noteworthy is the court’s holding that Rule 32 requires defendants be given notice whenever there is a possibility that any terms "out of the ordinary" may be imposed. The holding is an expansion of Angle, which only held that advance notice must be given if a defendant is going to be ordered to register as a sex offender, and did not attempt to define other situations in which notice may be appropriate.

The court does not define what constitutes an "out of the ordinary" or "unusual" condition of supervised release, but presumably, the definition can be applied to any condition that is not listed among the discretionary conditions in 18 U.S.C. sec. 3563(b), and applicable to supervised release via 18 U.S.C. 3583.

Arguably, however, the decision in this case could be applied even to discretionary conditions listed in the statute. For example, sec. 3563(b)(10) provides that a court can impose as a condition of supervised release, that the defendant, "remain in the custody of the Bureau of Prisons during nights, weekends, or other intervals of time, … during the first year of the term …"

Such a condition is not "out of the ordinary" or "unusual." By virtue of its being listed in the Code as a permissible discretionary condition, a defendant cannot claim that he had no way of foreseeing that it could be a subject of discussion at sentencing.

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However, where the defendant receives the maximum term of imprisonment within his or her guideline range, such a condition "may be seen as a back-door form of [upward] departure," for which Burns requires notice, even more so than the no-Internet condition in the case at bar.

However, despite the court’s lengthy discussion of Burns and the similarity between certain conditions of supervised release and upward departures, the court did not ultimately rest its holding on that reasoning, but on the Angle case.

Thus, although the decision does not necessarily require that advance notice be given that a court is considering such a condition, it provides a wealth of dicta to support that proposition.

Finally, a reasonable argument can be made that notice should also be given whenever a court intends to consider ordering a defendant to refrain from certain occupations, pursuant to subsec. (b)(5), or refrain from frequenting certain places or "associating unnecessarily with specified persons," pursuant to subsec. (b)(6).

While not unforeseeable or unusual, such conditions do impinge on
fundamental rights, and due process could be interpreted to require that notice and a meaningful opportunity to respond be given defendants so they can intelligently argue against imposition of such conditions.

– David Ziemer

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David Ziemer can be reached by email.

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