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| Conditions of Probation |
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United States v. Brown,
No. 04-3137-cr (2nd Cir., March 22, 2005): Winner!!! District Court abused discretion in imposing special condition of supervised release in drug case that Brown could not incur any form of debt without prior approval of the Probation Office. Good discussion of the law and parameters of special conditions in federal court.
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United States v. Weber,
No. 05-50191 (9th Cir., June 20, 2006): Conditions of Probation: Weber was convicted pursuant to guilty plea of possessing child pornography. The PSR recommended, and the District Court ordered, Weber to undergo testing via penile plethysmograph. This opinion is lengthy and details just about everything you have ever wanted to know about this procedure. The Circuit held that, although a District Court generally does not have to articulate its reasons for imposing most conditions of probation, when a condition implicates a particularly significant liberty interest then the District Court must support its decision on the record with evidence that the condition is "necessary to accomplish one or more of the factors listed in section 3583(d)(1)" and "involves no greater deprivation of liberty than is reasonably necessary." The Circuit remanded to the District Court to make such findings.
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United States v. Carter,
No. 05-6129 (6th Cir., September 18, 2006): Conditions of Probation: Conviction for Felon in Possession of a Firearm resulted in a period of supervised release containing a condition that mandated sex-offender treatment. Carter objected on the basis that sex-offender treatment was reasonably related to the firearms charge and that his prior sexual offenses in 1988 were too remote in time and not clearly of a sexual nature to support such a condition. Held: the special condition is vacated.
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United States v. Wittig,
No. 07-3051 (10th Cir., June 17, 2008) (Published): Conditions of Probation: This is the third time Wittig's case has appeared in the Circuit on a challenge to his sentence for Conspiracy, Bank Fraud, and Money Laundering. In this case, Wittig challenges his 24-month sentence followed by three-year term of supervised with special conditions, including an occupational restriction ("The defendant shall not be employed in any capacity in which he will have executive authority over any business, company or agency, and shall not engage in any financial agreements or negotiations involving any business, company or agency without the prior approval of the Court"). Although the Guidelines range was 0-6 months, the District Court sentenced Wittig to 24 months. The Circuit held the sentence was reasonable and found no abuse of discretion. However, the Circuit held that the occupational restriction was unwarranted under the facts and remanded with instructions to vacate it. NOTE: There is a concurrence penned by Judge Hartz and joined by the other two judges on the panel (Judges O'Brien and Holmes), which criticizes the amount of deference they must give to the sentences of the District Courts. Judge Hartz suggests that the Guidelines range and the "need to avoid unwarranted sentence disparities among defendants with similar records" should be viewed more stringently by the appellate courts.
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Kasischke v. State,
No. SC07-128 (Fla., July 10, 2008): 1. Conditions of Probation; 2. Rule of Lenity: A Florida statute requires a judge to impose conditions of probation on sex offenders. The question is whether such a probationer is prohibited from possessing all pornographic material or only such material relevant to the deviant behavior of the offender. HELD: Because the statute is ambiguous, Kasischke is entitled to the rule of lenity and thus is only prohibited from possessing porn related to his deviant behavior.
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