Filed: Aug. 13, 2009
Latest Update: Mar. 02, 2020
Summary: FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 08-50009 Plaintiff-Appellee, v. D.C. No. CR-05-00166-JVS-1 MARIO RALPH RILEY, OPINION Defendant-Appellant. Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding Argued and Submitted March 12, 2009—Chapman University, Orange, California Filed August 13, 2009 Before: Michael Daly Hawkins, Marsha S. Berzon and Richard R. Cli
Summary: FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 08-50009 Plaintiff-Appellee, v. D.C. No. CR-05-00166-JVS-1 MARIO RALPH RILEY, OPINION Defendant-Appellant. Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding Argued and Submitted March 12, 2009—Chapman University, Orange, California Filed August 13, 2009 Before: Michael Daly Hawkins, Marsha S. Berzon and Richard R. Clif..
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-50009
Plaintiff-Appellee,
v. D.C. No.
CR-05-00166-JVS-1
MARIO RALPH RILEY,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Argued and Submitted
March 12, 2009—Chapman University, Orange, California
Filed August 13, 2009
Before: Michael Daly Hawkins, Marsha S. Berzon and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Berzon
11051
UNITED STATES v. RILEY 11053
COUNSEL
Kurt Mayer, Deputy Federal Public Defender (argued), Sean
K. Kennedy, Federal Public Defender, and Kathryn A.
Young, Deputy Federal Public Defender (on the briefs), Los
Angeles, California, for the defendant-appellant.
Anne C. Gannon, Assistant United States Attorney (argued
and on the briefs), Thomas P. O’Brien, United States Attor-
ney, and Robb C. Adkins, Assistant United States Attorney
(on the briefs), Santa Ana, California, for the plaintiff-
appellee.
OPINION
BERZON, Circuit Judge:
After a jury trial, defendant-appellant Mario Riley was con-
victed of one count of possession of child pornography and
sentenced to a 46-month prison term with three years’ super-
vised release, subject to special conditions. Riley appeals his
conviction, contending that the district court erred in denying
his motions to exclude and suppress evidence. He also chal-
lenges his sentence as unreasonable and contests several of
the conditions of his supervised release. In a memorandum
disposition filed concurrently with this opinion, we uphold
11054 UNITED STATES v. RILEY
Riley’s conviction and his prison term. We also uphold most
of the conditions of supervised release, save one that, as the
government concedes, requires a limited remand. Here, we
vacate the sole remaining release condition.
I.
We set out the facts of this case as relevant to the one
release condition at issue here. Undercover police officers,
posing as providers of adult material, sent Riley an unsolicited
email advertising a website offering to connect customers
with providers of “extreme and intense material.” In Decem-
ber 2000, Riley visited the website and sent a message indi-
cating that he was interested in securing child pornography.
Riley and a Dallas police officer using a pseudonym carried
on an email dialogue for two months, during which time Riley
ordered three videos and a CD-ROM containing images of
child pornography and paid $200 to the undercover officer.
In February 2001, U.S. postal inspectors made a controlled
delivery of the order at Riley’s residence in Costa Mesa, Cali-
fornia. The package consisted of two videotapes and a CD-
ROM containing over one hundred images of child pornogra-
phy. Fifteen minutes after the delivery, the inspectors returned
to the residence to execute a search warrant. When they
entered the residence, the postal inspectors found the open
delivery box on Riley’s bed, and observed one of the video-
tapes on Riley’s bookshelf; they discovered the second one in
Riley’s VCR. The CD sent with the delivery was sitting in the
tray of the CD-ROM drive on Riley’s computer. Agents later
retrieved 148 additional images of child pornography from
Riley’s hard drive.
Over four years later, Riley was indicted on charges of
knowingly possessing a CD-ROM that contained more than
one image of child pornography, in violation of 18 U.S.C.
§ 2252A(a)(5)(B). The district court denied Riley’s motions
to exclude certain evidence, including the uncharged images
UNITED STATES v. RILEY 11055
of child pornography found on Riley’s computer, and to sup-
press statements made during the inspectors’ search of his res-
idence. The jury returned a guilty verdict after a two-day trial.
After receiving a presentence report, the district court
imposed a 46-month prison sentence and a three-year term of
supervised release, accompanied by special conditions recom-
mended by the probation officer. These included, among oth-
ers, several restrictions on computer use, including a blanket
prohibition on the use of a computer to access “any material
that relates to minors.”
Riley timely appeals his conviction, his prison sentence,
and the conditions imposed on supervised release. For the rea-
sons stated in the accompanying memorandum disposition,
we affirm the district court’s evidentiary rulings and Riley’s
conviction and hold that the prison sentence was reasonable.
In the memorandum disposition, we also affirm most of the
conditions of supervised release. For the reasons that follow,
however, we vacate the condition that prohibits Riley from
using a computer to access “any material that relates to
minors.”
II.
[1] Pursuant to 18 U.S.C. § 3583(d), a district court has dis-
cretion to impose special conditions of supervised release, so
long as the conditions: are reasonably related to the goals of
deterrence, protection of the public, or rehabilitation of the
offender; involve no greater deprivation of liberty than neces-
sary to achieve those goals; and are consistent with any perti-
nent policy statements issued by the Sentencing Commission.1
1
18 U.S.C. 3583(d) provides, in relevant part:
The court may order, as a further condition of supervised release,
to the extent that such condition—
(1) is reasonably related to the factors set forth in section
3553(a)(1) [the nature and circumstances of the offense and the
11056 UNITED STATES v. RILEY
See United States v. Weber, 451 F.3d 552, 557-58 (9th Cir.
2006) (citing 18 U.S.C. §§ 3553(a)(2), 3583(d)). “[A] super-
vised release condition need not relate to the offense of con-
viction, as long as it satisfies one of the above goals.”
Id. at
558. The government “shoulders the burden of proving that a
particular condition of supervised release involves no greater
deprivation of liberty than is reasonably necessary to serve the
goals of supervised release.”
Id. at 559. We review the district
court’s imposition of special conditions of supervised release
for abuse of discretion. See United States v. Stoterau,
524
F.3d 988, 1002 (9th Cir. 2008).
As a condition of Riley’s supervised release, the district
court imposed a number of restrictions on his use of comput-
ers, many of which require Riley to obtain prior approval
from his probation officer. The condition at issue here went
further. It provided that Riley “shall not access via computer
any material that relates to minors. [Riley] shall not have
another individual access the internet on his behalf to obtain
files or information which he has been restricted from access-
ing, or accept restricted files or information from another per-
son.”
history and characteristics of the defendant], (a)(2)(B) [ade-
quate deterrence to criminal conduct], (a)(2) ) [protection of
the public from further crimes of the defendant], and (a)(2)(D)
[provide the defendant with needed educational or vocational
training or medical care];
(2) involves no greater deprivation of liberty than is reasonably
necessary for the purposes set forth in section 3553(a)(2)(B),
(a)(2)(C), and (a)(2)(D); and
(3) is consistent with any pertinent policy statements issued by
the Sentencing Commission pursuant to 28 U.S.C. 994(a);
any condition set forth as a discretionary condition of probation
in section 3563(b) and any other condition it considers to be
appropriate . . . .
UNITED STATES v. RILEY 11057
[2] Riley contends that this condition is impermissibly
overbroad. Because the condition reaches any material relat-
ing to minors, Riley maintains, it would prevent him from
accessing even current event news stories that pertain to chil-
dren. He further argues that, as he is a technical engineer,2 the
condition unduly prevents him from working on computer
programs designed for or used by minors. We agree that the
condition is impermissibly overbroad, imposing a far greater
deprivation of liberty than reasonably necessary to achieve
legitimate goals of supervised release. See Weber, 451 F.3d at
558.
[3] The condition sweeps extremely widely. As the govern-
ment’s counsel agreed at oral argument, a literal reading of
the condition would prohibit Riley from watching any movie
on his computer that had children in it. Nor could Riley use
a computer to send his own young relatives birthday cards.
According to the government, the condition would also pro-
hibit Riley from taking a job at a health insurance company
that required him to enter minors’ claims information into a
database. Moreover, the condition imposes a blanket ban on
Riley’s use of a computer, not use subject to approval by his
probation officer. In other words, even if a probation officer
agreed that using a computer to access particular material
were acceptable, the condition would still prohibit Riley from
accessing the material if it related to minors.
The government maintains that the condition, despite its
breadth, is necessary to promote the goals of supervised
release: the prevention of Riley’s recidivism, the promotion of
his rehabilitation, and the protection of the public. A com-
puter was instrumental in the commission of the offense, the
government observes. In light of Riley’s demonstrated sexual
interest in minors, the government urges, the restrictions are
reasonably related to these goals.
2
According to the presentence report, Riley’s previous jobs included
work as a “senior technician” at a communications company, and an “en-
gineer” at a firm known as Peak Technical Services. As far as the record
reveals, neither position involved software application programming.
11058 UNITED STATES v. RILEY
[4] Riley used a computer to order the child pornography;
images of child pornography were found on his computer; and
Riley sent the undercover officer explicit messages and
images relating to minors in the course of ordering the por-
nography later delivered to his residence. But, as shown, the
condition restricts uses of computers in situations that bear no
relation to protecting the public from child pornography or
exploitation, promoting rehabilitation, or preventing recidi-
vism. And, given the other, valid release conditions, the
restriction on computer access to all material relating to
minors does little, if anything, additional to promote the goals
of supervised release.3
[5] The government nevertheless contends that the broad,
blanket restriction on computer access to all material relating
to minors is necessary to fill in gaps in the remaining condi-
tions. We fail to see how this is so. At oral argument, the gov-
ernment suggested that without the challenged condition,
Riley would be free to use an approved computer to enter
children’s chat rooms or to look at “child erotica,” presum-
ably sexually suggestive material that does not rise to the
level of pornography. Both uses likely would be covered by
the other conditions restricting Riley’s ability to interact with
minors and to possess material depicting sexually explicit con-
duct.4 If not, a condition specifically covering the specific,
3
The other computer-related conditions require Riley to obtain approval
from his probation officer before using any computer or Internet account.
Other conditions prohibit Riley from possessing any material depicting
“sexually explicit conduct,” and prohibit him from associating or commu-
nicating with minors, including via electronic communications, without
the minor’s parent’s consent.
4
The conditions define “sexually explicit conduct” with reference to 18
U.S.C. § 2256(2), which provides that “ ‘sexually explicit conduct’ means
actual or simulated— (i) sexual intercourse, including genital-genital, oral-
genital, anal-genital, or oral-anal, whether between persons of the same or
opposite sex; (ii) bestiality; (iii) masturbation; (iv) sadistic or masochistic
abuse; or (v) lascivious exhibition of the genitals or pubic area of any per-
son.”
UNITED STATES v. RILEY 11059
child-related behavior the government posits could be added.
A condition as broad as the one imposed by the district court
simply cannot be sustained on the ground that it is necessary
as a stop-gap to promote the goals of supervised release,
given the sheer range of unrelated activity it restricts.
Although we leave open the possibility that another, more
narrowly drawn provision might cover situations reasonably
related to the goals of supervised release not encapsulated by
the remaining conditions, the government has asked us not to
adopt a narrow reading of this condition, and so we decline
to do so.
III.
[6] The blanket prohibition on use of a computer to access
“material that relates to minors” is a greater deprivation of lib-
erty than reasonably necessary to promote the goals of super-
vised release. The district court’s decision to impose this
condition was an abuse of discretion.
AFFIRMED in part; VACATED in part; and REMANDED
for proceedings consistent with this opinion.
