Filed: Aug. 18, 2020
Latest Update: Aug. 19, 2020
Summary: Case: 19-10797 Document: 00515531490 Page: 1 Date Filed: 08/18/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED August 18, 2020 No. 19-10797 Lyle W. Cayce Clerk United States of America, Plaintiff — Appellee, versus Christopher J. Abbate, Defendant — Appellant. Appeal from the United States District Court for the Northern District of Texas USDC No. 4:10-CR-29-1 Before Davis, Jones, and Willett, Circuit Judges. Per Curiam: Christopher Ab
Summary: Case: 19-10797 Document: 00515531490 Page: 1 Date Filed: 08/18/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED August 18, 2020 No. 19-10797 Lyle W. Cayce Clerk United States of America, Plaintiff — Appellee, versus Christopher J. Abbate, Defendant — Appellant. Appeal from the United States District Court for the Northern District of Texas USDC No. 4:10-CR-29-1 Before Davis, Jones, and Willett, Circuit Judges. Per Curiam: Christopher Abb..
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Case: 19-10797 Document: 00515531490 Page: 1 Date Filed: 08/18/2020
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
August 18, 2020
No. 19-10797 Lyle W. Cayce
Clerk
United States of America,
Plaintiff — Appellee,
versus
Christopher J. Abbate,
Defendant — Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:10-CR-29-1
Before Davis, Jones, and Willett, Circuit Judges.
Per Curiam:
Christopher Abbate challenges two special conditions of his
supervised release following the revocation of his first term of supervised
release. He argues a condition prohibiting possession of pornographic matter
is vague and overbroad in violation of his due process and First Amendment
rights, and a condition prohibiting use of gaming consoles is overly
restrictive. We modify the gaming console condition but leave the other
conditions of his supervised release unchanged. We therefore AFFIRM as
MODIFIED the district court’s judgment.
Case: 19-10797 Document: 00515531490 Page: 2 Date Filed: 08/18/2020
No. 19-10797
I. BACKGROUND
In June 2010, Abbate pled guilty to possessing child pornography. 1
The district court sentenced him to 120 months of imprisonment, followed
by a lifetime term of supervised release. Less than a year after Abbate
completed his prison sentence, he violated the conditions of his supervised
release. The district court sentenced him to six months of imprisonment,
followed by another lifetime term of supervised release. Abbate does not
challenge the district court’s revocation of his supervised release.
Abbate does, however, challenge two terms of his supervised release,
which are now before us on review. First, he challenges the term that
provides he not have under his control any “pornographic matter.” Second,
he challenges the term that he “shall not use or possess any gaming
consoles . . . or devices, without prior permission from the probation
officer.” Abbate objected to the pornography condition at the hearing. He
did not object to the gaming console condition. He launched a timely appeal.
II. DISCUSSION
Abbate argues that the pornography condition is overbroad and vague,
in violation of his due process and First Amendment rights. He also contends
that the gaming console condition is overly restrictive in violation of 18
U.S.C. § 3583(d). We address these concerns in turn.
A. The Pornography Condition
Abbate first asserts that the pornography condition of his supervised
release—that he cannot possess or have under his control “any pornographic
matter”—is impermissibly vague in violation of his due process rights and
overbroad in violation of his First Amendment rights. Because Abbate
1
See 18 U.S.C. §§ 2252(a)(2), 2252(a)(4)(B).
2
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preserved his challenge at the sentencing hearing, we review the district
court’s supervised release condition for abuse of discretion. 2
It is a basic principle of due process that a statute may not be “so vague
that it fails to give ordinary people fair notice of the conduct it punishes, or
so standardless that it invites arbitrary enforcement.” 3 This principle applies
with equal force to supervised release conditions. 4 Even so, a lack of
specificity does not necessarily void the condition. 5 “[W]hile a probationer
is entitled to notice of what behavior will result in a violation, so that he may
guide his actions accordingly,” supervised release conditions “do not have
to be cast in letters six feet high, or to describe every possible permutation,
or to spell out every last, self-evident detail.” 6 Categorical terms are
inevitable and can provide adequate notice so long as there exists “a
commonsense understanding of what activities the categories encompass.” 7
Abbate argues that there is no commonsense understanding of the
categorical term “pornography.” The question, then, is whether a
reasonable person can predict what materials Abbate is and is not allowed to
have.
We have not yet addressed the stand-alone term “pornographic.” But
in United States v. Brigham, we considered a condition of supervised release
providing that the defendant (Brigham) neither possess nor control “any
2
United States v. Fields, 777 F.3d 799, 802 (5th Cir. 2015).
3
N.M. (J.) v. United States,
135 S. Ct. 2551, 2556 (2015).
4
United States v. Paul, 274 F.3d 155, 166 (5th Cir. 2001).
5
See id.
6
Id. at 166–67 (quoting United States v. Gallo,
20 F.3d 7, 12 (1st Cir. 1994))
(quotation marks omitted).
7
Id. at 167.
3
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pornographic, sexually oriented or sexually stimulating materials.” 8 The
district court found Brigham violated the conditions of his supervised release
after viewing a videotape of himself and his ex-girlfriend having sex. 9 On
appeal, Brigham argued that the district court improperly applied the
condition, and that it was vague. 10 Reviewing the issue on an “as applied”
basis for abuse of discretion, we rejected Brigham’s argument. 11 We also
emphasized that the definitions of “child pornography” and “sexually
explicit conduct” set forth in 18 U.S.C. §§ 2256(2) and (8) offered “some
practical insight” into the condition’s meaning. 12
In United States v. Simmons, the Second Circuit used similar reasoning
in interpreting the term “pornography.” 13 The court there observed that,
“[f]or purposes of evaluating artistic or cultural merit, the term
‘pornography’ is notoriously elusive,” and that any effort to define the word
is a “subjective, standardless process, heavily influenced by the individual,
social, and cultural experience of the person making the determination.” 14
But the court concluded that this lack of clarity is “significantly eliminated
in the context of federal criminal law.” 15 As we did in Brigham, the court cited
to § 2256, which provides that “‘child pornography’ means any visual
depiction, including any photograph, film, video, picture, or computer or
computer-generated image or picture, whether made or produced by
8
569 F.3d 220, 223 (5th Cir. 2009).
9
Id. at 233.
10
Id. at 232.
11
Id.
12
Id. at 233.
13
343 F.3d 72 (2d Cir. 2003).
14
Id. at 81.
15
Id.
4
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electronic, mechanical, or other means, of sexually explicit conduct.” 16 The
court reasoned that, when references to minors are omitted, the child
pornography law “defines the more general category of pornography,”
thereby eliminating any vagueness concerns. 17
We agree with the Second Circuit. 18 As difficult as it may be to pin
down a definition of the term “pornography” in artistic contexts, that
dilemma does not present itself here—the criminal context provides us the
necessary commonsense understanding. 19 Abbate’s vagueness challenge fails
and, in turn, so does his First Amendment overbreadth challenge. 20
Abbate brings another First Amendment overbreadth challenge: He
argues that the pornography condition is overbroad because it prohibits not
only his possession of sexually explicit material involving children but also
that involving adults. He stresses that there is no nexus between adult
16
18 U.S.C. § 2256(8) (emphasis added). The same section also defines
“sexually explicit conduct” in detail (including sexual intercourse, bestiality,
masturbation, sadistic or masochistic abuse, and lascivious exhibition of the anus,
genitals, or pubic area). Id. §§ 2256(2)(A) and (2)(B).
17
Simmons, 343 F.3d at 82.
18
See also United States v. Bordman, 895 F.3d 1048, 1062 (8th Cir. 2018), cert.
denied,
139 S. Ct. 1618 (2019) (terms “pornography” and “erotica” were not
unconstitutionally vague). But see United States v. Guagliardo,
278 F.3d 868, 872 (9th
Cir. 2002) (per curiam) (condition prohibiting defendant from possessing any
pornography was unconstitutionally vague); United States v. Loy,
237 F.3d 251 (3d Cir.
2001) (holding that the term “pornography,” which can include the likes of Vladimir
Nabokov’s Lolita and medical school textbooks, is vague and overbroad).
19
United States v. Paul, 274 F.3d 155, 167 (5th Cir. 2001).
20
Because Abbate alleges the supervised release condition is vague and, in turn,
encompasses protected conduct, the vagueness and overbreadth analysis invariably
overlap. See Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495
n.6 (1982) (“[A] court should evaluate the ambiguous as well as the unambiguous scope
of the enactment. To this extent, the vagueness of a law affects overbreadth analysis.”).
5
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pornographic matter and his offense (possession of child pornography).
Abbate preserved his challenge, so we review for abuse of discretion. 21
“A district court has wide discretion in imposing terms and conditions
of supervised release.” 22 That discretion, however, has limits. “A special
condition of supervised release . . . must comply with § 3583(d) to survive a
First Amendment challenge.” 23 Pertinent here, § 3583(d) requires that a
supervised release condition result in no greater deprivation of liberty than is
reasonably necessary. 24
When a defendant’s crime is “sexual in nature,” it is “reasonable for
the district court to restrict [the defendant’s] access to sexually stimulating
material more broadly in an effort to prevent future crimes or aid in his
rehabilitation.” 25 And we have found a nexus between possession of legal
adult pornography and child pornography before. 26 In United States v. Miller,
for example, we held that because videos seized from the defendant’s
residence depicted both nude adults and nude minors, his “interest in
21
United States v. Caravayo, 809 F.3d 269, 272 (5th Cir. 2015) (per curiam).
22
Paul, 274 F.3d at 164.
23
Caravayo, 809 F.3d at 274.
24
18 U.S.C. § 3583(d)(2).
25
United States v. Ellis, 720 F.3d 220, 227 (5th Cir. 2013) (per curiam).
26
United States v. Miller, 665 F.3d 114, 136 (5th Cir. 2011); see also United States
v. McGee, 559 F. App’x 323, 329 (5th Cir. 2014) (district court did not abuse its
discretion in prohibiting defendant with past history of child molestation from
possessing or viewing sexually arousing material—a restriction that was “a precaution,
purely protective”);
Ellis, 720 F.3d at 227 (upholding, in a child pornography case, a
condition restricting possession of sexually stimulating material because the crime was
sexual in nature, and the court sought to prevent future crimes and aid in his
rehabilitation).
6
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‘sexually stimulating’ materials involving adults is intertwined with his
sexual interest in minors and thus, his offense.” 27
The record reveals that, like in Miller, Abbate’s interest in child
pornography is intertwined with adult pornography. Abbate’s presentence
report documented that he “owned numerous adult pornographic movies
with titles suggestive of young participants.” It also reported images on
Abbate’s hard drive depicting children engaging in sexual acts with adults. At
the revocation hearing, Abbate’s psychotherapist determined that Abbate’s
possession of sexually explicit material could result in recidivism.
It is “not difficult to infer” that Abbate’s access to such materials
could “influence[] his subsequent behavior,” putting both his rehabilitation
and the public at risk. 28 Because it complies with § 3583(d), the special
condition survives Abbate’s First Amendment challenge.
B. The Gaming Console Condition
Abbate contends that the special condition prohibiting his use or
possession of “any gaming consoles” without prior permission is overly
restrictive in violation of § 3583(d)(2). He argues that the condition involves
a greater deprivation of liberty than necessary. Since he did not object at the
hearing, we review for plain error. 29
Under this standard, we apply a four-prong test to determine if a trial
court plainly erred. 30 Abbate must identify (1) a forfeited error, (2) that is
27
665 F.3d at 136. Although Miller was a plain error case, the court held it would
have reached the same conclusion “[e]ven were [it] to review for an abuse of
discretion.”
Id.
28
United States v. Sealed Juvenile,
781 F.3d 747, 756 (5th Cir. 2015).
29
United States v. Weatherton, 567 F.3d 149, 152 (5th Cir. 2009).
30
United States v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en banc).
7
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clear and obvious, and (3) that affected his substantial rights.31 If he satisfies
those three requirements, we may, in our discretion, remedy the error, but
“only if the error seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” 32
The district court imposed a blanket ban on gaming consoles after
Abbate lied about getting rid of his internet-capable PlayStation 4, in violation
of his earlier supervised release condition that he not use or own any device
that allows internet access. Abbate agrees that a prohibition on modern
devices that rely on internet connection is appropriate. He only requests that
we use our discretion to lessen the condition’s scope, such that it does not
include consoles that cannot access the internet.
We recently addressed a similar special condition in United States v.
Montanez. 33 After Montanez pled guilty to a single count of enticement of a
child, the district court imposed a condition restricting the use or possession
of any gaming console. 34 On plain error review, we held that the condition
was overbroad, and narrowed it to its commonsense construction: a
prohibition on gaming consoles that allow internet communication. 35
31
Puckett v. United States, 556 U.S. 129, 135 (2009).
32
Id. (quoting United States v. Olano,
507 U.S. 725, 736 (1993)) (quotation
marks omitted).
33
797 F. App’x 145 (5th Cir. 2019), cert. denied, No. 19-7998, 2020 WL 1906695
(U.S. Apr. 20, 2020). While an unpublished opinion issued after January 1, 1996 is not
controlling precedent in our circuit, we may consider it as persuasive authority. See
Ballard v. Burton,
444 F.3d 391, 401 n. 7 (5th Cir. 2006). And, if we have found plain
error in one case, we can infer plain error in another, factually analogous case. See, e.g.,
United States v. Lozano,
791 F.3d 535, 539 (5th Cir. 2015) (relying on precedent of
finding plain error in similar cases in holding the district court committed plain error).
34
Id. at 146, 150.
35
Id. at 151–52.
8
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The district court’s obvious intent in imposing this special condition
was to prevent Abbate from using a gaming console’s internet-access
features. A ban on all gaming consoles does not achieve that purpose, and so,
like in Montanez, we use our discretion to modify the special condition. 36 We
narrow the condition to forbid Abbate from using or possessing any gaming
console or device that allows for internet access without prior permission
from the probation officer.
III. CONCLUSION
For the foregoing reasons, the district court’s judgment is
AFFIRMED as MODIFIED.
36
We have discretion to modify special conditions without vacating or
remanding to the district court. See 28 U.S.C. § 2106 (federal appellate courts may
“modify . . . any judgment, decree, or order of a court lawfully brought before it for
review”); Sealed Appellee v. Sealed Appellant, 937 F.3d 392, 401 (5th Cir. 2019)
(modifying the judgment to “remove any doubt regarding the scope of the special
conditions and what they require of Appellant, leaving the other special conditions
unchanged”).
9
