FILED
United States Court of Appeals
Tenth Circuit
May 19, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 08-2176
v.
(D.C. No. 1:07-CR-805-JCH-1)
(D.N.M.)
FRANCISCO L. MATTESON,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRISCOE, EBEL, and GORSUCH, Circuit Judges.
In May 2005, New Mexico authorities arrested Francisco Matteson for
defrauding various banks. Mr. Matteson admits that he stole mail in order to
obtain personal information and bank account numbers belonging to at least
eighty-nine people. Using this stolen information along with his personal
computer and other equipment perhaps belonging to another individual, Mr.
Matteson produced counterfeit checks that he sold for cash. Under an agreement
with the government, Mr. Matteson pled guilty to one count of possession of
stolen mail, 18 U.S.C. § 1708, and another count of bank fraud, 18 U.S.C.
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
§ 1344(1)-(2). The district court sentenced him to thirty-three months’
imprisonment followed by a three year term of supervised release.
This appeal concerns one of the special conditions of supervised release
imposed by the district court. The district court is invested with broad discretion
to prescribe such conditions, subject to the limitations imposed by law, including
18 U.S.C. § 3583(d). United States v. Hanrahan, 508 F.3d 962, 970 (10th Cir.
2007). Section 3583(d) requires, among other things, that any special condition
be reasonably related to certain factors set out in 18 U.S.C. § 3553(a), including
“the nature and circumstances of the offense and the history and characteristics of
the defendant,” as well as three purposes of punishment: deterring criminal
conduct, protecting the public, and providing the defendant with training, medical
care, and other correctional treatment. 18 U.S.C. § 3583(d)(1); id. § 3553(a)(1),
(a)(2)(B)-(D). The condition must also “involve[] no greater deprivation of
liberty than is reasonably necessary” to achieve those three purposes. Id.
§ 3583(d)(2).
In our case, the challenged condition provides that
[t]he defendant shall consent, at the direction of the United States
Probation Officer, to having installed on his/her computer(s), any
hardware or software systems to monitor his/her computer use. The
defendant understands that the software may record any and all activity
on his/her computer, including the capture of keystrokes, application
information, Internet use history, e-mail correspondence, and chat
conversations. Monitoring will occur on a random and/or regular basis.
The defendant further understands that he/she will warn others of the
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existence of the monitoring software placed on his/her computer or any
such computer [to which] the defendant may have access.
D. Ct. Judgment at 4 (emphasis added).
Before us, Mr. Matteson argues that this condition is problematic in two
respects. First, he claims that the condition (in particular, the italicized language)
is impermissibly vague. Second, he contends that the level of monitoring
authorized (down to the last keystroke) is too intrusive to comply with § 3583(d)
or the Fourth Amendment. Because Mr. Matteson raised neither argument to the
district court, normally our review would be for plain error.
In this case, however, the government has commendably conceded Mr.
Matteson’s first, vagueness argument. In light of this concession, “the question
of whether we apply plain error review” with respect to that argument is not
“trigger[ed].” United States v. White, 244 F.3d 1199, 1207 n.11 (10th Cir. 2001).
As counsel for the government rightly pointed out in a letter to us, it is unclear
from the terms of the district court’s condition whether that court intended to
authorize the government to monitor not just Mr. Matteson’s computer, but also
any other computer to which he might have access. The first part of the district
court’s condition authorizes monitoring only on “his[] computer(s).” By contrast,
the last sentence of the court’s condition imposes an obligation on Mr. Matteson
to “warn others” that the monitoring software has been placed on his computer
“or any such computer [to which] the defendant may have access.” As the
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government acknowledges, it is possible that the district court did not mean to
require monitoring of any computers beyond those owned by Mr. Matteson. See
United States’ Letter of March 19, 2009, at 2. But it is also possible that the
district court intended in the final words of the condition to expand the number of
monitored computers. Indeed, the government submits this is the more plausible
reading of the district court’s intentions for two reasons: first, the alternative
renders the last eleven words of the special condition superfluous; second, the
evidence in this case suggested a need to encompass more than just computers
belonging to Mr. Matteson because he “committed the offense using both his own
computer and a borrowed computer.” Id. In any event, both sides before us agree
a remand is necessary to clear this up.
While conceding Mr. Matteson’s first argument about the vagueness of the
district court’s condition, the government nonetheless urges us to reject Mr.
Matteson’s second argument, at least in part. Specifically, the government asks
us to affirm keystroke monitoring of those computers owned by Mr. Matteson,
arguing that such a requirement would not offend § 3583(d)(2)’s requirement of
impinging no more than is reasonably necessary on Mr. Matteson’s liberty.
We think the better course in this particular case is to defer resolution of
this question until after remand. It may be that the district court wishes keystroke
monitoring to apply only to computers owned by Mr. Matteson, while other
computers Mr. Matteson uses (such as those owned by an employer) are subject
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either to no monitoring at all or to some other, less intrusive and as yet
unspecified form of monitoring. But, again, it could be the intent of the condition
to require keystroke monitoring of all computers Mr. Matteson uses, not just
those he owns. And it is difficult to evaluate the propriety of the district court’s
keystroke monitoring requirement as a whole without first knowing to which
computers it pertains; what might be sustainable in isolation might become
unsustainable when the condition is viewed as a whole. Underscoring this is the
fact that the government itself has suggested not only that the district court most
likely wished its condition to apply to any computer Mr. Matteson might access,
but also that, if the keystroke monitoring requirement does pertain so broadly, it
is “too broad” for us to sustain. United States’ Letter of March 19, 2009, at 2.
Rather than evaluating this case piecemeal, and doing so based on hunches about
the district court’s intentions and what might ultimately prove sustainable, we
believe the district court should have a chance in the first instance to think
comprehensively about which conditions it wishes to impose, if any, on which
computers. After the district court’s evaluation, the case may look very different
than our assumptions now suggest.
Our decision to wait for the district court’s evaluation in the first instance
is also influenced by the fact that determining the boundaries of permissible
computer monitoring has vexed several of our sister circuits, and our circuit has
not yet issued comparable guidance. Compare United States v. Sales, 476 F.3d
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732, 737-38 (9th Cir. 2007) (vacating computer monitoring as not narrowly
tailored); United States v. Lifshitz, 369 F.3d 173, 192-93 (2d Cir. 2004) (vacating
and remanding computer monitoring condition to permit district court to evaluate
potential overbreadth in the first instance), with United States v. Goddard, 537
F.3d 1087, 1090-91 (9th Cir. 2008) (monitoring condition valid if narrowly
construed); United States v. Holm, 326 F.3d 872, 879 (7th Cir. 2003) (random
searches of probationer’s computer “entirely reasonable”). Before weighing in on
this weighty subject for the first time, we would no doubt benefit not just from a
clearer understanding of what we are being asked to review, but also from the
district court’s considered views on how its conditions mesh with and are tailored
to both § 3583(d)(2)’s requirements and the Fourth Amendment.
The challenged condition of supervised release requiring computer
monitoring is vacated in its entirety, and the case is remanded for further
proceedings consistent with this order.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
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