United States v. Voelker

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit

6-5-2007

USA v. Voelker
Precedential or Non-Precedential: Precedential

Docket No. 05-2858

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 PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No: 05-2858

UNITED STATES OF AMERICA

v.

DANIEL VOELKER,

Appellant

Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal No. 05-cr-00133)
District Judge: Hon. Alan N. Bloch

Argued: July 13, 2006

Before: SLOVITER, McKEE and RENDELL,
Circuit Judges

(Opinion filed June 5, 2007)

Karen S. Gerlach
Renee Pietropaolo (Argued)
Office of Federal Public Defender
1001 Liberty Avenue
1450 Liberty Center
Pittsburgh, PA 15222
Attorney for Appellant
Robert L. Eberhardt (Argued)
Laura S. Irwin
Office of United States Attorney
700 Grant Street Suite 400
Pittsburgh, PA 15219
Attorney for Appellee

OPINION

McKEE, Circuit Judge.

Daniel Voelker was sentenced to seventy-one months in

prison followed by a lifetime term of supervised release after he

pled guilty to possessing child pornography in violation of 18

U.S.C. § 2252(a)(2). He appeals only the special conditions that

the court imposed on the term of supervised release. For the

reasons that follow, we will vacate those conditions and remand

for resentencing consistent with this opinion.

I. BACKGROUND

During an FBI investigation into the online activity of

Wyndell Williams, agents monitored a computer “chat” between

Williams and Daniel Voelker. During this online

communication, Voelker, a thirty-five year-old Pennsylvania

2
resident, briefly exposed the buttocks of his three year-old

daughter over a webcam that was connected to his computer.

When the FBI subsequently confronted Voelker with this

information, he acknowledged downloading child pornography

onto his computer, and he directed agents to computer discs

where the files were stored. He also admitted to partially

exposing his daughter over his webcam, but he insisted that

statements he had made about sexual contact with minors or

offering his daughter for sex were merely gratuitous statements

in the nature of “role-playing.” He claimed that he never

intended to follow through on any of those statements but

admitted that he engaged in such online “role-playing” on a

daily basis. Agents subsequently searched Voelker’s home

pursuant to a warrant and seized computer files containing child

pornography.

Thereafter, Voelker waived indictment and pled guilty to

receipt of material depicting the sexual exploitation of a minor

in violation of 18 U.S.C. § 2252(a)(2). Under the terms of the

3
plea agreement, Voelker also accepted responsibility for a

second count of possession of material depicting the sexual

exploitation of a minor in violation of 18 U.S.C. §

2252(a)(4)(B), but that count was subsequently dismissed on

motion of the government.

As noted at the outset, the District Court sentenced

Voelker to seventy-one months incarceration followed by a

lifetime term of supervised release pursuant to 18 U.S.C. §

3583(k). The lifetime term of supervised release and three

conditions the court imposed are the subject of this appeal. As

summarized by the government, the conditions were as follows:

1. The defendant is prohibited from accessing
any computer equipment or any “on-line”
computer service at any location, including
employment or education. This includes, but is
not limited to, any internet service provider,
bulletin board system, or any other public or
private computer network;

2. The defendant shall not possess any materials,
including pictures, photographs, books, writings,
drawings, videos or video games depicting and/or
describing sexually explicit conduct as defined at
Title 18, United States Code, Section 2256(2);

4
 and

3. The defendant shall not associate with children
under the age of 18 except in the presence of a
responsible adult who is aware of the defendant’s
background and current offense and who has been
approved by the probation officer.

This appeal followed.1

II. DISCUSSION.

A sentencing judge is given wide discretion in imposing

a sentence. However, the discretion is not absolute. It must be

exercised within the parameters of 18 U.S.C. § 3583. Unites

States v. Crandon, 173 F.3d 122, 127 (3d Cir. 1999). Section

3583(d) requires a sentencing court to impose certain statutorily

1
We review conditions of supervised release for abuse of
discretion. United States v. Crandon, 173 F.3d 122, 127 (3d Cir.
1999). However, if the condition was imposed without
objection, we review only for plain error. United States v.
Warren, 186 F.3d 358, 362 (3d Cir. 1999); cf. Fed. R. Crim. P.
52(b).
Voelker objected to the first two conditions (prohibition
of computers and internet access, and prohibition of possession
of “sexually explicit” materials), but he did not object to the
third condition.

5
mandated conditions as part of any term of supervised release.

These mandatory conditions include such generally applicable

conditions as attendance at court approved rehabilitation

programs, supplying a DNA sample, and testing for controlled

substances. 18 U.S.C. § 3583(d). Section 3583(d) also allows

the court to impose more specific conditions of supervised

release tailored to the specific offense and offender. However,

any such condition must be “reasonably related” to the factors

set forth in 18 U.S.C. § 3553(a). Those factors include: “(1) the

nature and circumstances of the offense and the history and

characteristics of the defendant; [and] (2) the need for the

sentence imposed . . . (B) to afford adequate deterrence to

criminal conduct; (C) to protect the public from further crimes

of the defendant; and (D) to provide the defendant with needed

educational or vocational training, medical care, or other

correctional treatment in the most effective manner.” 18 U.S.C.

§ 3553(a). Any such condition must impose “no greater

deprivation of liberty than is reasonably necessary” to deter

6
future criminal conduct, protect the public, and rehabilitate the

defendant. 18 U.S.C. § 3583(d)(2); see United States v.

Pruden, 398 F.3d 241, 248 (3d Cir. 2005) (noting that the

considerations included in § 3583 by the incorporation of § 3553

“are fairly broad, but they do impose a real restriction on the

district court's freedom to impose conditions on supervised

release.”).

Conditions of supervised release must be supported by

some evidence that the condition imposed is tangibly related to

the circumstances of the offense, the history of the defendant,

the need for general deterrence, or similar concerns. Pruden,

398 F.3d at 248-49. “[A] condition with no basis in the record,

or with only the most tenuous basis, will inevitably violate §

3583(d)(2)’s command that such conditions involve no greater

deprivation of liberty than is reasonably necessary.” Id. at 249

(internal quotations omitted). Accordingly, “courts of appeals

have consistently required district courts to set forth factual

findings to justify special probation conditions.” United States

7
v. Warren, 186 F.3d 358, 366 (3d Cir. 1999).2

Where a sentencing court fails to adequately explain its

reasons for imposing a condition of supervised release or the

condition’s relationship to the applicable sentencing factors, we

may nevertheless affirm the condition if we can “ascertain any

viable basis for the . . . restriction in the record before the

District Court . . . on our own.” See id., 186 F.3d at 367.

Although Voelker is challenging the lifetime term of his

supervised release as well as the three special conditions of

supervised release set forth above, we need not separately

address his challenge to the term of his supervised release. Our

discussion of the propriety of the conditions imposed on that

term applies to duration of the term with equal force.

Accordingly, we will focus on the propriety of the conditions of

2
Although Warren concerns conditions of probation
rather than supervised release, the distinction is without a
difference for purposes of our inquiry, and the analysis there is
relevant to our analysis here. See United States v. Evans, 155
F.3d 245, 250-51 (3d Cir. 1998) (holding that the rules guiding
imposition of special conditions are identical for probation and
supervised release.).

8
the supervised release.

A. PROHIBITION OF COMPUTER EQUIPMENT AND

THE INTERNET

Voelker contends that an absolute lifetime ban on using

computers and computer equipment as well as accessing the

internet, with no exception for employment or education,

involves a greater deprivation of liberty than is reasonably

necessary and is not reasonably related to the factors set forth in

18 U.S.C. § 3583. We agree.

The District Court did not explain its reasons for

imposing such an unprecedented and sweeping lifetime

restriction. We therefore have no way of determining if the

court undertook the “careful and sensitive individualized

assessment [that] is always required before such a ban is

imposed.” United States v. Johnson, 446 F.3d 272, 282 n.2 (2d

Cir. 2006).

Given this record, we assume that the court imposed the

ban because computers and the internet were inextricably

9
involved in his criminal conduct. Nevertheless, given the

extraordinary breadth of this condition and the absence of any

explanation, we are at a loss to understand how the District

Court could have considered the factors contained in § 3553(a)

and concluded that this condition is narrowly tailored to impose

no greater restriction than necessary. The condition is the

antithesis of a “narrowly tailored” sanction. The lifetime ban on

all computer equipment and the internet is the functional

equivalent of prohibiting a defendant who pleads guilty to

possession of magazines containing child pornography from

ever possessing any books or magazines of any type during the

remainder of his/her life.

The ubiquitous presence of the internet and the all-

encompassing nature of the information it contains are too

obvious to require extensive citation or discussion. Even a

casual user of the “information highway” will realize that it

instantly provides near universal access to newspapers such as

the New York Times; the Wall Street Journal and the

10
Washington Post; to popular magazines such as Newsweek and

Time, such respected reference materials as the Encyclopedia

Britannica and World Book Encyclopedia, and much of the

world’s literature.3

We realize, of course, that the anonymous access to all

kinds of information opens the door to all kinds of abuse. This

case clearly illustrates the potential for abuse and victimization

that is also endemic in the internet.4 Here, the victims of that

3
For example, “Project Gutenberg” is an online
collection of over 20,000 works of literature in over fifty
languages that are all in the public domain and available for free
download and reading to anyone with access to a computer. See
Project Gutenberg, http://www.gutenberg.org/catalog/ (last
visited March 19, 2007). Thousands of these works are also
available as “ebooks” that can be downloaded and stored for
subsequent leisure reading on various kinds of computer devices
from the traditional desktop to handheld personal organizers.
See id.
4
The Internet is home to countless virtual communities
and chat-rooms where “[v]irtually any type of sexual fantasy
may be witnessed (or participated in).” Michael W. Sheetz,
CyberPredators: Police Internet Investigations Under Florida
Statute 847.0135, 54 U. MIAMI L. REV. 405, 426-47 (2000). For
an in-depth study of such virtual communities, see SHERRY
TURKLE, LIFE ON THE SCREEN: IDENTITY IN THE AGE OF THE
INTERNET (1995).

11
abuse are children who tragically become involved in the world

of online child pornography. This was obviously the District

Court’s concern and focus in imposing this condition.

Nevertheless, we have never approved such an all-

encompassing, severe, and permanent restriction, and nothing on

this record inspires confidence in the propriety of doing so now.

The court in Crandon imposed the most severe restriction on

computer and internet use that we have thus far upheld. 173

F.3d at 128. There, Crandon, a thirty-nine year-old New Jersey

resident, met a fourteen year-old girl from Minnesota online. Id.

at 125. Crandon communicated with the girl over the internet

for several months and eventually traveled to Minnesota to meet

her. Id. During his visit to Minnesota, the two had sexual

relations, and Crandon took sexually explicit photos of her. Id.

His activity was subsequently discovered, and he

eventually pled guilty to one count of receiving child

pornography in violation of 18 U.S.C. § 2252(a)(2). Id. He was

sentenced to seventy-eight months in prison followed by a three-

12
year term of supervised release. Id. One of the conditions of

supervised release directed that Crandon not “possess, procure,

purchase or otherwise obtain access to any form of computer

network, bulletin board, Internet, or exchange format involving

computers unless specifically approved by the United States

Probation Office.” Id. We upheld that condition because

Crandon had used the internet to develop and exploit the

relationship. Id. at 127-28. Thus, the restriction on internet

access was reasonably related to “the dual aims of deterring him

from recidivism and protecting the public.” Id. The restriction

was narrowly tailored and consistent with Crandon’s criminal

conduct even though it may have jeopardized his employment

and impacted his First Amendment freedoms. Id. at 128.

The government argues that this case “warrants the kind

of special supervisory condition [we] allowed in Crandon”

because it is similar to Crandon “in its essentials.” Appellee’s

Br. at 12, 14. That is simply not true.

The government’s reliance on Crandon ignores the

13
glaringly obvious difference between the duration of Crandon’s

conditions and the duration of Voelker’s conditions. Crandon’s

restrictions remained in place for three years; Voelker’s

restrictions will last as long as he does. Furthermore, Crandon

used computers and the internet to actually seek out, and then

communicate with, his victim. Crandon also traveled across the

country to have sex with the minor he met and seduced online.

Still, Crandon was allowed to continue using stand-alone

computers and computer equipment, and he retained the right to

use the internet with the consent of the Probation Office.

Voelker is not afforded either of those options. Although

Voelker’s conduct was reprehensible, he did not use his

computer equipment to seek out minors nor did he attempt to set

up any meetings with minors over the internet as Crandon did.

Since Voelker’s conduct was not nearly as predatory as

Crandon’s, the latter actually counsels against the much more

14
intrusive lifetime restriction on Voelker.5

Moreover, 18 U.S.C. § 3553(a) requires that courts

consider “the need to avoid unwarranted sentence disparities

among defendants with similar records who have been found

guilty of similar conduct.” 18 U.S.C. §3553(a)(6). At Voelker’s

sentencing, the government asked the court to impose a 71

month sentence of imprisonment followed by lifetime

supervision because that was the sentence imposed on Wyndell

Williams, the target the FBI was investigating when Voelker’s

activity was discovered. Supp. App.116-17. However, there was

“considerable evidence that Williams attempted to actually

engage in sexual acts with minors.” His behavior was therefore

much more analogous to Crandon’s conduct than to Voelker’s.

The District Court could clearly have imposed some

limitations on Voelker’s access to computers and the internet.

5
Although we do not know Crandon’s criminal history,
we do know that Voelker has no prior criminal record, and the
offense of which he was convicted is the same as that of
Crandon.

15
However, it is equally clear that any such restriction had to be

narrowly tailored and consistent with the sentencing factors set

forth in 18 U.S.C. § 3553(a). See United States v. Booker, 543

U.S. 220, 233-34 (2005). The conditions imposed on Voelker

fall woefully short of that requirement. See United States v.

Peterson, 248 F.3d 79, 83 (2d Cir. 2001) (noting that the mere

use of telephones to commit an offense does not justify an

absolute ban on using telephones). The restrictions here bear no

resemblance to the narrowly tailored sanctions that are required

by § 3553(a). A brief discussion of our decision in United

States v. Freeman, 316 F.3d 386 (3d Cir. 2003), illustrates the

kind of tailoring the court should have considered.

Freeman was an admitted pedophile whose predatory

behavior went as far as seeking out babysitting jobs in order to

photograph nude boys. Id. at 388. Freeman also admitted to

“molesting numerous young boys,” although the molestations

had occurred more than fifteen years before the possession of

child pornography charges that were then before the court. Id.

16
In addition, two convictions for sexual misconduct were not

included in his criminal history “because of their age.” Id.

Freeman also pled guilty to receipt and possession of child

pornography in violation of 18 U.S.C. § 2252(a)(2) and (4)(B).

Id. at 387-88. In imposing sentence, the court departed upward

from Criminal History Category I to Category III based upon its

conclusion that Category I under-represented Freeman’s record

and his likelihood of recidivism. Id. at 388. The court imposed

a sentence of seventy months incarceration followed by five

years of supervised release. Id. at 389. During the term of

supervised release, Freeman was “prohibited from having any

computer equipment in [his] . . . residence.” Id. In addition, he

could “not possess or use a computer with access to any on-line

computer service . . . without the written approval of the

Probation Officer.” Id. at 389-90. To ensure compliance,

Freeman also had to “consent to periodic, unannounced

examinations of [his] residence and possessions, to determine if

[he was] in possession of computer equipment or any child

17
pornography.” Id., at 390 (brackets around “his” in original).

Freeman appealed the condition of supervised release that

prohibited “using or possessing a computer without the

permission of his probation officer.” Id. In explaining why that

condition was overly broad, we declared: “There is no need to

cut off . . . access to email or benign internet usage when a

more focused restriction, limited to pornography sites and

images, can be enforced by unannounced inspections of material

stored on [the defendant’s] hard drive or removable disks.” Id.

at 392. We also explained that “a special condition forbidding

him from possessing any computer . . . or using any on-line

computer service without the written approval of the probation

officer is overly broad; it involves a greater deprivation of

liberty than is reasonably necessary to deter future criminal

conduct and to protect the public.” Id. at 391-92.6 Yet, the five

year restriction we struck down in Freeman pales in comparison

6
Although we concluded that the conditions were too
restrictive, we left open the possibility that such conditions
could be imposed in the future if Freeman did not comply with
more limited conditions. Freeman, 316 F.3d at 392.

18
to the lifetime restrictions imposed here.7

In Freeman, we distinguished Crandon by emphasizing

Crandon’s use of the internet to contact and exploit victims. Id.

at 392. In contrast, there was “nothing . . . to suggest that

Freeman [had] used the internet to contact young children.” Id.

Accordingly, Crandon’s computer usage was far more

problematic and “more difficult to trace than simply using the

internet to view pornographic web sites.” Id. Periodic

inspection of Crandon’s computer equipment would not have

addressed concerns about future illegal conduct nor adequately

7
During oral argument, the government indicated that
the breadth of the restriction here was partly due to the fact that
the probation office lacked sufficient funding or personnel to
monitor Voelker’s computer use. However, there is nothing on
the record to suggest that was a consideration, and the District
Court never relied upon any such concern to justify the absolute
prohibition it imposed. Moreover, even if the court had
considered cost, we would be reluctant to agree that such
dramatic limitations on First Amendment freedoms can readily
be justified by the cost of affording fundamental liberties. This
is particularly true given the court’s failure to explore the
alternatives we suggested in Freeman, including periodic
inspection of the defendant’s hard drive and other storage
media.

19
protected the public. The conduct here is clearly more akin to

Freeman than Crandon.

We realize that attempts to tailor conditions of supervised

release to the specifics of an offense involving computers and

the internet are particularly difficult given the extent to which

computers have become part of daily life and commerce.8 That

8
“Computers and Internet access have become virtually
indispensable in the modern world,” Peterson, 248 F.3d at 83,
and their permeation of all aspects of our lives is increasing
exponentially. “[L]ocal governments are making [wireless]
Internet part of the public infrastructure (akin to roads and sewer
lines).” Robert MacMillan, Life, Liberty and Free WiFi,
WASHINGTONPOST.COM, May 2, 2005, available at LEXIS,
News Library.
Although it is impossible to remain unaware of the
exponential growth of computers or our dependence on them, it
is still difficult to fully appreciate the extent to which they
impact our daily lives because it is not always apparent. For
example, “[c]ars today might have as many as 50
microprocessors . . . .” Karim Nice, How Car Computers Work,
http://computer.howstuffworks.com/car-computer.htm (last
viewed on December 28, 2006). “All cars manufactured today
contain at least one computer.” What does the computer in a car
do?, http://auto.howstuffworks.com/question113.htm (last
visited Dec. 28, 2006). Computers control automatic braking
systems and monitor everything from emissions to air and
engine temperature. Id.
Thus, literal compliance with the court’s ban on
accessing computer equipment would have impacted Voelker’s
ability to drive a car as well as his ability to use such everyday

20
does not, however, justify the kind of lifetime cybernetic

banishment that was imposed here. See United States v. Crume,

422 F.3d 728, 733 (8th Cir. 2005) (the record did not support a

broad ban on computers and the internet, which are “an

important medium of communication, commerce, and

information-gathering”); United States v. Holm, 326 F.3d 872,

878 (7th Cir. 2003) (monitored access to the internet ensured

that the offender would not use it for illegal purposes while

recognizing the “need to allow him to function in the modern

world”).

Although supervised release is obviously not a custodial

sentence, it is nonetheless hard to imagine how Voelker could

function in modern society given this lifetime ban on all forms

of computer access and use. The court did not pronounce an

resources as ATM machines and grocery store scanners.
Microprocessors that can easily be considered computers or
computer equipment, are even found in such every day
appliances as washing machines, television sets, microwave
ovens and video cassette recorders. See
http://www.atarimagazines.com/compute/issue40/smart_prod
ucts.php (last viewed May 7, 2007).

21
unconstitutional banishment as such, but the conditions that

were imposed have analogous consequences that the District

Court did not justify and apparently did not consider. See

United States v. Abushaar, 761 F.2d 954, 961 (3d Cir. 1985)

(requiring that probation time be served outside the country was

“impermissible [in part] because it was completely unrelated to

any purpose to rehabilitate . . ..”).

Our research has failed to disclose any court of appeals

decision affirming a lifetime ban on computers or a blanket ban

on “computer equipment.” Only the Court of Appeals for the

Fifth Circuit has approved a complete ban on the use of

computers in a precedential opinion, and that was limited to

three years. See United States v. Paul, 274 F.3d 155, 170 (5th

Cir. 2001).9 Unlike Voelker, the defendant there “used the

Internet to initiate and facilitate a pattern of criminal conduct

9
The Court of Appeals for the Fifth Circuit approved a
complete ban on the use of computers in United States v.
McDermott, 133 Fed. Appx. 952, 954 (5th Cir. 2005). However,
that was in a non-precedential opinion and the review was for
plain error. Id. at 953.

22
and victimization.” Id. at 169 (internal quotation marks

omitted). Paul even used online resources and bulletin boards

to inform others about websites featuring child pornography. Id.

at 168. He also told others “how to ‘scout’ single, dysfunctional

parents and gain access to their children.” Id. His computer

usage included soliciting individuals for trips to “visit” children

in Mexico. Id. Thus, his conduct was exponentially more

dangerous than Voelker’s. Paul was a predator who roamed the

internet in search of prey while telling like minded predators

how to prey upon the unsuspecting victims on the internet.

Voelker’s use of computers and the internet does not pose

the kind of unbridled threat to the unsuspecting public that either

Paul or Crandon posed. The breadth and duration of the

prohibition in Voelker’s case is particularly unfathomable

because Voelker was employed as a respiratory therapist from

1996 until his arrest. It is hard to imagine how he could remain

employed in that or any similar occupation absent access to

computer equipment. In fact, he claims that “[s]uch employment

23
in a hospital necessarily entails access to and the use of

computers and computer equipment for record keeping [and]

patient care.” Appellant’s Br. at 23.10 The government does not

attempt to rebut that representation, and few who have walked

down the halls of any modern hospital would question it.

The Sentencing Guidelines advise that a District Court

should only impose an occupational restriction when there is a

“reasonably direct relationship . . . between the defendant's

occupation . . . and the conduct relevant to the offense of

conviction; and imposition of such a restriction is reasonably

necessary to protect the public because there is reason to believe

that, absent such restriction, the defendant will continue to

engage in [similar] unlawful conduct.” U.S.S.G. § 5F1.5(a)

10
According to Voelker, computers are incorporated into
such common lifesaving equipment as resuscitators and
ventilators. Appellant’s Br. At 23. Although a District Court
need not impose a sentence that allows for continued
employment, it was well within the sentencing court’s discretion
to consider the impact of a given sentence on a family unit and
impose a lesser sentence even under the mandatory guidelines
regime that preceded United States v. Booker. See United States
v. Dominguez, 296 F.3d 192, 194 (3d. Cir. 2002).

24
(implementing occupational restrictions authorized by 18 U.S.C.

§ 3583(d) for supervised release). Moreover, even “[i]f a

district court makes both determinations and imposes an

occupational . . . restriction, it must be for ‘the minimum time

and to the minimum extent necessary to protect the public.’”

United States v. Smith, 445 F.3d 713, 717 (3d Cir. 2006)

(quoting U.S.S.G. § 5F1.5(b)).

The government does not claim that Voelker used

computers to download pornography at work, and the record

does not suggest that he did. Yet, the court imposed a

prohibition that prevents him from resuming his previous

vocation and erects a seemingly insurmountable barrier to future

training to secure other employment. It precludes him from

taking online courses and could easily interfere with more

traditional instruction, as those classes may rely on email and

online reference materials.

This does not, of course, mean that the district court may

not impose some kind of restriction on Voelker’s computer use

25
and internet access on remand. However, any such restrictions

must be consistent with 18 U.S.C. § 3583(d)(2). They must be

appropriately tailored and impose no greater restriction on

Voelker’s liberty than necessary. See 18 U.S.C. § 3583(d). In

addition, the court must provide a sufficiently detailed

explanation of any such restriction to allow for meaningful

appellate review. See United States v. Cooper, 437 F.3d 324,

328 (3d Cir. 2006). The court’s justification should consider the

ubiquitous nature of the internet as a medium of information,

commerce, and communication as well as the availability of

filtering software that could allow Voelker’s internet activity to

be monitored and/or restricted. See United States v. White, 244

F.3d 1199, 1206 (10th Cir. 2001). As we discuss more fully

below, the court must also consider the First Amendment

implications of any such restriction. The ban the court imposed

here “sweeps more broadly and imposes a greater deprivation

on [Voelker’s] liberty than is necessary.” United States v. Holm,

326 F.3d 872, 877 (7th Cir. 2003).

26
 B. PROHIBITION ON SEXUALLY EXPLICIT MATERIALS

Voelker is also prohibited from possessing any textual

descriptions or visual descriptions of “sexually explicit

conduct,” as defined by 18 U.S.C.§ 2256(2)(A). This 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

person.” Id.

Voelker argues that this condition violates the First

Amendment and, like the ban on computer and internet access,

it also involves a greater deprivation of liberty than is

reasonably necessary to deter future criminal conduct and

protect the public.

Although the court did not provide us with an explanation

for this condition either, the conduct the defendant admitted to

offers some support for this restriction. When the District Court

27
does not articulate its reasons for imposing a given sentence,

“‘we may . . . examine the record and perform the required

balancing ourselves.’” United States v. Johnson, 388 F.3d 96,

101 (3d Cir. 2004) (quoting Becker v. ARCO Chemical Co., 207

F.3d 176, 181 (3d Cir. 2000)).11

It is apparent from the charges Voelker pled guilty to, as

well as the conduct he admitted, that the court thought this

condition was consistent with the nature of Voelker’s offense.

Although “the District Court could, perfectly consonant with the

Constitution, restrict [an offender’s] access to sexually oriented

materials,” such a restriction must have a nexus to the goals of

supervised release. United States v. Loy, 237 F.3d 251, 267 (3d

Cir. 2001) (“Loy II”). We are unable to find any such nexus

here, and the District Court’s failure to explain its reasons makes

our review all the more difficult.12 We assume the court believed

11
Although in Johnson we were addressing Federal Rule
of Evidence 609(b), this statement is equally applicable here.
12
The government asserts, without explanation, that this
condition “does reasonably relate to the nature and
circumstances of the Appellant’s offense.” Appellee’s Br. 19.

28
a lifetime ban on possessing “sexually explicit materials” would

further his rehabilitation and reduce the chances of recidivism.

At first blush, this restriction appears to be sufficiently

related to Voelker’s offense to survive his challenge. Although

a ban on accessing sexually explicit material involving children

would certainly be reasonable, there are First Amendment

implications for a ban that extends to explicit material involving

adults. We assume that the condition was specifically intended

to include explicit material involving adults because such

material cannot legally involve children, and the statutorily

mandated conditions of supervised release require Voelker to

comply with those laws. Those conditions prohibit future

possession of child pornography. However, nothing on this

The government points us, presumably for clarification, to
United States v. Bee, where a similar condition was upheld. 162
F.3d 1232, 1235 (9th Cir. 1998). It is not entirely clear why the
court in Bee felt that restricting sexually explicit materials “was
necessary to address Bee’s problems with deviant sexual
behavior triggered by his abuse of alcohol.” Id. In any event,
that case involved physical abuse of a six year-old girl. Id. at
1234. The supervised release condition was limited to three
years and narrower in scope than the restriction the court
imposed here. Id.

29
record suggests that sexually explicit material involving only

adults contributed in any way to Voelker’s offense, nor is there

any reason to believe that viewing such material would cause

Voelker to reoffend.13

Even assuming this restriction has some unexplained

rehabilitative, deterrent or penological purpose, given our

discussion in United States v. Loy, 191 F.3d 360 (3d Cir. 1999)

(“Loy I”),14 it should have been apparent that any such purpose

13
Compare United States v. Simmons, 343 F.3d 72 (2d
Cir. 2003), where Simmons was convicted of transporting a
minor in foreign commerce for the purpose of engaging in
illegal sexual conduct and of producing sexually explicit
videotapes. Id. at 74. Simmons’ sentence involved a three year
term of supervised release, which included a condition
prohibiting him from possessing or viewing “pornographic
material.” Id. at 74-75. In upholding the condition, the court
explained that since Simmons “often videotaped his sexual
attacks upon his victims, it was reasonable for [the District
Court] to conclude that there was a connection between
Simmons’ viewing and possessing sexually explicit material and
his criminal behavior.” Id. at 82.
14
We vacated a sentence in Loy I because of the
conditions of supervised release and remanded for resentencing.
In Loy II, we vacated the sentence that was imposed on remand
and remanded the case once again. Since both Loy I, and Loy II
are relevant to the issues here, we will collectively refer to them
as “Loy,” where appropriate.

30
had to be balanced against the serious First Amendment

concerns endemic in such a restriction.15 See Loy II. The

conditions imposed here are particularly troublesome when

viewed against the backdrop of our discussion in Loy. As we

discuss below, these conditions of supervised release are almost

identical to the conditions we vacated there. Moreover, these

conditions were imposed by the same sentencing judge.

Loy entered a guilty plea to knowingly receiving child

pornography through the mails in violation of 18 U.S.C. §

2252(a)(2) and also entered a conditional guilty plea to violating

§ 2252(a)(4)(B).16 Loy II, 237 F.3d. at 255. The sentence that

was imposed included a three year term of supervised release

with conditions that included testing and treatment for drugs and

15
Nonobscene, sexually explicit materials involving
persons over the age of seventeen are protected by the
Constitution, without regard to their social worth. See United
States v. X-Citement Video, Inc., 513 U.S. 64, 72 (1994), Stanley
v. Georgia, 394 U.S. 557, 563-64 (1969).
16
Loy reserved his right to challenge the legitimacy of
an anticipatory search warrant that was used during the course
of the investigation. See Loy I, 191 F.3d at 364.

31
alcohol, a prohibition on unsupervised contact with minors, and

a prohibition against possessing any kind of pornography. Id.

On appeal, Loy challenged each of those conditions. Id. at 253.

He argued that there was nothing in the record to suggest that

drug and alcohol treatment or counseling was appropriate. Loy

I, 191 F.3d at 370. He also argued that prohibiting unsupervised

contact with minors and the possession of any kind of

pornography was “not reasonably related to any of the statutory

goals and involve[d] a greater deprivation of liberty than

required.” Id. at 371.

We remanded the case to the District Court for

resentencing because the court imposed the special conditions

“without making any factual findings relating to them or

providing any reasons in support of them.” Id. “Since we

[could] not know why the district court imposed these

conditions, we [could not] properly review Loy’s abuse of

discretion claim.” Id. In remanding, we “remind[ed] the court

that the conditions of supervised release must be reasonably

32
related to the goals of deterrence, protection of the public and

rehabilitation of the defendant.” Id. (citing 18 U.S.C. §§

3583(d)(1), 3553(a)(2)). We added, “[m]oreover, we caution

that any condition implicating the deprivation of liberty can be

no greater than necessary to meet these goals.” Id. (emphasis

added) (citing 18 U.S.C. § 3583(d)(2)).

On remand, the District Court eliminated the requirement

of drug and alcohol testing and treatment but reimposed the

conditions “barring Loy from possessing pornography of any

type, as well as from having any unsupervised contact with

minors.” Loy II, 237 F.3d at 255. The court amended the latter

condition to add the requirement that “any supervision must

come from someone other than [Loy’s] wife” because

information learned during the investigation suggested that she

was also involved with child pornography. Id.

In reimposing the conditions, the court explained that “‘it

is sometimes impossible to differentiate between children and

adults in pornographic materials,’ [and the prohibition of all

33
pornography] was necessary to protect children who are

victimized in child pornography as well as to deter Loy from

further criminal conduct or from attempting to obtain illegal

child pornography.” Id. (quoting the District Court’s opinion).

Loy again appealed. Id. at 253. He argued that the ban on “all

forms” of pornography was overbroad and that the prohibition

against unsupervised contact with minors was not reasonably

related to statutory goals of sentencing and interfered with his

right to procreate and raise a family. Id.

In adjudicating the appeal, we described the ban on all

forms of pornography as “an unusually broad condition.” Id. at

266. We concluded that a ban is not “‘narrowly tailored’ if it

restricts First Amendment freedoms without any resulting

benefit to public safety.” Id. We explained that the ban the

court imposed was so broad that it extended “not only to

Playboy magazine, but also to medical textbooks[,] . . . serious

art [and] ubiquitous advertising.” Id. at 266-67. Since it included

both legal and illegal pornography, it was overly broad and

34
could not stand. Id. at 267. We also concluded that it violated

Loy’s due process rights by “failing to provide [him] with

adequate notice of what he may and may not do, chilling First

Amendment rights in the process.” Id. at 267.

As we noted above, that sentence was imposed by the

same judge who imposed the sentence here. However, unlike

the undefined ban the judge imposed in Loy, the court here

incorporated 18 U.S.C. § 2256(2) into the prohibition into the

definition of “pornographic material” in an apparent attempt to

avoid the fatal flaw that afflicted the sentence in Loy. The

definition of “sexually explicit conduct” contained in § 2256(2)

is set forth below.17 However, even given this refinement, the

17
18 U.S.C.§ 2256(2) defines “sexually explicit
conduct,” as follows:
(2)(A) 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 person[.]

35
prohibition on possessing sexually explicit material still sweeps

within its reach some legal adult pornography as well as illegal

child pornography. Thus, in attempting to avoid the problems

the court encountered in Loy, it ignored our caution that “the

deprivation of liberty can be no greater than necessary to meet

[the] goals [of 18 U.S.C. § 3583(2)].” Loy I, 191 F.3d at 371.

Furthermore, the court once again failed to provide an analysis

or explanation to support this broad restriction.

We realize that the court attempted to justify the

prohibition of adult pornography on remand in Loy by relying

upon the asserted difficulty of knowing whether persons

depicted in pornography are minors. 237 F.3d at 255. However,

that justification does not appear anywhere on this record. We

will not scour the jurisprudence of a sentencing judge in an

attempt to divine the justification for a sentence based upon

similar sentences that the judge may have explained in a similar

36
case years before, especially since § 3583 requires sentencing

courts to explain the sentences they impose.

Moreover, even if we were to reach beyond this record

and assume the court was relying upon the same justification it

furnished in Loy, the instant condition would still be problematic

because it includes legal pornography depicting individuals who

are clearly not minors. Accordingly, we will also vacate this

condition of special release.

C. RESTRICTION ON ASSOCIATING WITH CHILDREN

The District Court prohibited Voelker from associating

with minors without the prior approval of the Probation Officer

and mandated that any such contact be in the presence of an

adult who is familiar with Voelker’s criminal background.

Voelker argues that this condition prevents him from having

unsupervised contact with his two children or any children he

may have in the future. He claims that it therefore interferes

with his constitutional right of procreation, as well as his

fundamental liberty and his freedom of association under the

37
First Amendment. Since Voelker did not object to this condition

at sentencing, we review for plain error. See Jones v. United

States, 527 U.S. 373, 389 (1999).

In order for us to find plain error:

There must be an “error” that is “plain” and that
“affects substantial rights.” The deviation from a
legal rule is “error,” and an error is “plain” if it is
“clear” or “obvious.” In most cases, an error
affects substantial rights if it is prejudicial, i.e.,
“affected the outcome of the district court
proceedings.” . . . We will exercise our discretion
and vacate the sentence if the plan error affecting
substantial rights also “seriously affects the
fairness, integrity, or public reputation of judicial
proceedings.”

United States v. Evans, 155 F.3d 245, 251 (3d. Cir.1998)

(internal citations omitted).

“A plainly erroneous condition of supervised release will

inevitably affect substantial rights, as a defendant who fails to

meet that condition will be subject to further incarceration.”

United States v. Pruden, 398 F.3d 241, 251 (3d Cir. 2005).

Similarly, “imposing a sentence not authorized by law seriously

38
affects the fairness, integrity, and reputation of the proceedings.”

Evans, 155 F.3d at 252.

We have held that a sentence is “imposed in violation of

law,” and therefore plainly erroneous, when it is imposed

without proper consideration for the statutory factors that govern

sentencing. United States v. Cooper, 437 F.3d 324, 328 (3d Cir.

2006). “The court need not discuss every argument made by a

litigant . . . . Nor must the court discuss and make findings as to

each of the §3553(a) factors . . . .” Id. at 329. However, the

record must contain sufficient reference to those factors to allow

us to review for reasonableness.

We need not engage in an in-depth discussion of this

claim. There is evidence on this record that Voelker exposed

his daughter’s buttocks over the internet using his webcam.

There is also evidence that he jeopardized his minor daughter’s

welfare by offering her for sex during an online communication.

Although Voelker claims that he never intended to follow

through with that offer and that he was merely “role-playing,”

39
the record nevertheless clearly support restricting his association

with minors. However, the court delegated absolute authority

to the Probation Office to allow any such contacts while

providing no guidance whatsoever for the exercise of that

discretion. Thus, Voelker’s Probation Officer becomes the sole

authority for deciding if Voelker will ever have unsupervised

contact with any minor, including his own children, for the rest

of his life. This is the very kind of unbridled delegation of

authority that we struck down in Loy II. See 237 F. 3d at 266.

There, we stated: “[T]he sentencing court may not wholesaledly

‘abdicate[] its juridical responsibility’ for setting the conditions

of release.” Id. (quoting United States v. Mohammad, 53 F.3d

1426, 1438 (7th Cir. 1995)).18

Even though the record contains evidence that supports

a conclusion that Voelker may be capable of exploiting his own

children, it is not clear to us that the District Court intended this

18
In Mohammad, the court vacated an order of restitution
because the sentencing court allowed the probation officer to
decide the method of payment. 53 F.3d at 1429.

40
lifetime ban on association with minors to extend to his own

children. In Loy II, we resolved the profound legal issues that

arose from a three year ban on association with minors by

assuming that the court did not intend it to apply to the

defendant’s own family. We explained: “Given the severe

intrusion on Loy’s family life that would otherwise result, we

believe that, absent a clearer sign from the District Court, the

condition should be construed to apply only to other people’s

children, and not to Loy’s own.” Loy II, 237 F. 3d at 270.

Although we resolved the ambiguity in Loy by supplying

a presumption that ameliorated the problems that would have

arisen had the ban included the defendant’s own family, we

cannot do that here. Given this record, the court may have

intended the condition to extend to Voelker’s own family. On

remand, the court will have yet another opportunity to clarify the

intended scope of this restriction and to provide sufficient

guidance for the exercise of the Probation Officer’s discretion

if a ban on associating with minors is reimposed.

41
 We do not now express any opinion about the legality of

a condition that so drastically interferes with one’s right to

associate with one’s own children. We do, however, caution that

any lifetime ban on association with minors should be supported

by sufficient evidence to resolve the dispute over whether

Voelker was simply role-playing. On remand, the court may

wish to supplement this record with expert testimony from

persons knowledgeable in this area in order to better resolve the

dispute about Voelker’s potential threat to children, particularly

his own children, rather than merely adopting the findings of the

Presentence Report without further explanation. This is

particularly true since the record does not set forth the expertise

of the person(s) who prepared the Presentence Report, in

addressing this sensitive and difficult area.

We need not reiterate that a sentencing court has broad

discretion in fashioning an appropriate sentence and in resolving

any factual dispute relevant to that difficult task. It is equally

clear that the court should proceed cautiously in imposing any

42
condition that could impact Voelker’s parental rights absent

sufficiently reliable supporting evidence. We realize, of course,

that parental rights are not absolute and that they are subject to

the state’s interest in the welfare of the defendant’s children.

Parents can “lose custody of their children or have restrictions

placed on their parental rights” when there is sufficient evidence

“to support a finding that children are potentially in danger from

their parents.” Loy II, 237 F.3d at 269. However, there must be

sufficient “evidence to support a finding that children are

potentially in danger from their parents, [otherwise] the states’

interest cannot be said to be ‘compelling,’ and thus interference

in the family relationship is unconstitutional.” Id. at 269-70.19

19
Voelker is now receiving psychological evaluation and
treatment. Those actively involved in his treatment are well
placed to assist the District Court in determining whether
Voelker poses a sufficient threat to children to justify this
restriction. On remand, the court will have access to the
professionals treating Voelker as well as other professionals
who can assist in determining the propriety of any condition
restricting his contact with minors and whether any such
restriction should extend to his own children. That testimony
can assist the court’s analysis under § 3553(a).

43
 III. CONCLUSION.

It is indeed unfortunate that we have had to review a

sentence that mirrors one that this same judge previously

imposed that we had to vacate not once, but twice. We realize

that cases involving child pornography can be particularly

difficult because they involve especially defenseless and

vulnerable victims. Nevertheless, having previously explained

the necessity for narrowly tailoring the kind of conditions of

supervised release that were imposed here, we once again have

to remand with instructions nearly identical to those we issued

twice before. The court’s failure to apply our decision in Loy

is even more worrisome when we consider that the conditions

we vacated there pertained to a term of supervised release that

only lasted three years. Here, for reasons that are not at all

apparent on this record, the court concluded it was appropriate

to impose a lifetime period of supervised release on a thirty-five

year-old defendant, with the conditions we have discussed,

44
without any explanation of why such an unprecedented sanction

was necessary or appropriate.

We would have hoped that the judge would have realized

the need for even greater care in ensuring the proper nexus

between sentence, offense, and offender given the lifetime

duration of the conditions imposed. Yet, it appears that this

sentence was imposed with no more analysis, support, or

explanation than was the case in Loy.

Accordingly, for the foregoing reasons, we will vacate

the challenged conditions of supervised release and remand to

the District Court for further proceedings consistent with this

opinion.

45