15‐963
USA v. Parisi
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
_______________
August Term, 2015
(Submitted: March 2, 2016 Decided: May 3, 2016)
Docket No. 15‐963
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UNITED STATES OF AMERICA,
Appellee,
—v.—
JOHN W. PARISI, A/K/A SEALED DEFENDANT, A/K/A JOHN PARISI,
Defendant‐Appellant,
MELODY PARISI,
Defendant.
_______________
Before:
KATZMANN, Chief Judge,
SACK and LOHIER, Circuit Judges.
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Appeal from a decision of the District Court for the Northern District of
New York, granting a request of the United States Probation and Pretrial Services
to modify the conditions of Defendant‐Appellant John Parisi’s supervised
release. Affirmed.
_______________
Kofi Sansculotte and Paul D. Silver, Assistant
United States Attorneys, for Richard S. Hartunian,
United States Attorney for the Northern District
of New York, Albany, NY, for Appellee.
Timothy Austin, Assistant Federal Public
Defender, and Melissa A. Tuohey, Appellate
Attorney, for Lisa A. Peebles, Federal Public
Defender, Syracuse, NY, for Defendant‐Appellant.
_______________
PER CURIAM:
Defendant‐Appellant John Parisi appeals a March 23, 2015 decision of the
District Court for the Northern District of New York (Kahn, J.) modifying the
special conditions of supervised release that had been imposed on Parisi at the
time of his sentencing in 2004 to include what are now standard conditions of
supervision for individuals convicted of sex offenses. Parisi contends that the
modification was improper because there are no new or changed circumstances
relating directly to his case that warrant the imposition of these conditions.
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However, even though new or changed circumstances may justify a modification,
see United States v. Lussier, 104 F.3d 32, 36 (2d Cir. 1997), they are not a
prerequisite to a district court’s decision to modify the conditions of release.
Therefore, the modification was not improper on that basis.
Parisi also argues that the new conditions are improper because they are
not reasonably related to his underlying offense conduct and involve a greater
deprivation of liberty than is reasonably necessary. And he challenges the
modifications on procedural grounds, arguing that he did not receive an
adequate modification hearing pursuant to Rule 32.1(c)(1) of the Federal Rules of
Criminal Procedure. These arguments also lack merit. Accordingly, the district
court’s decision modifying the conditions of Parisi’s supervised release is
AFFIRMED.
I
In 2003, Parisi pled guilty to four counts of sexual exploitation of a minor
under 18 U.S.C. §§ 2251(a) and (d), and to one count of witness tampering under
18 U.S.C. §§ 1512(b) and 2. Parisi had operated an adult pornographic website
since about 1997. In August 1996, he videotaped two 15‐year‐old females (“Jane
Doe #1” and “Jane Doe #2”) posing in a number of sexually explicit positions and
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then modified the images to make it appear that he was engaging in sexual acts
with them. On three occasions, all in 1997, he videotaped a third female (“Jane
Doe #3”), then 17 years old, posing in a number of sexually explicit positions. In
1998, he again videotaped Jane Doe #1 and altered the images. A number of these
images were made available on his website. Shortly after her third video
modeling session, Jane Doe #3 asked Parisi to delete photos of her from the
website. Although he said he would, he never did.
A federal search warrant was executed at Parisi’s residence in May 2000,
resulting in the seizure of business records, modeling contracts, videotapes,
computer discs, and a computer containing explicit images of Jane Doe #1, Jane
Doe #2, and Jane Doe #3. Included in these seized materials was a modeling
contract with Jane Doe #3 that was dated on her eighteenth birthday, but she
denied ever having signed the agreement. Officials executed a second search
warrant at Parisi’s residence in June 2000, because his website was active, had
been updated since the first search, and continued to offer images of Jane Doe #1.
Later, a third search warrant was executed after officials learned the website was
still operating through a different internet service provider and still offering
images of Jane Doe #1, Jane Doe #2, and Jane Doe #3. During the investigation,
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Parisi persuaded Jane Doe #1 and Jane Doe #2 to sign false affidavits stating that
they were 18 years old when they were videotaped by him.
On February 11, 2004, Parisi was sentenced to 150 months’ imprisonment
and 3 years’ supervised release. He served his prison term and was released on
supervision on December 24, 2014. In January 2015, the United States Probation
and Pretrial Services (“Probation Services”) petitioned to modify the special
conditions of his supervised release to include, inter alia, the following two
conditions:
1) You shall submit your person, and any property, house,
residence, vehicle, papers, effects, computer, electronic
communications devices, and any data storage devices or media, to
search at any time, with or without a warrant, by any federal
probation officer, or any other law enforcement officer from whom
the Probation Office has requested assistance, with reasonable
suspicion concerning a violation of a condition of probation or
supervised release or unlawful conduct by you. Any items seized
may be removed to the Probation Office or to the office of their
designee for a more thorough examination.
2) Your supervision may include examinations using a polygraph,
computerized voice stress analyzer [(“CVSA”)], or other similar
device to obtain information necessary for supervision, case
monitoring, and treatment. You shall answer the questions posed
during the examination, subject to your right to challenge in a court
of law the use of such statements as violations of your Fifth
Amendment rights. In this regard, you shall be deemed to have not
waived your Fifth Amendment rights. The results of any
examinations shall be disclosed to the United States Probation Office
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and the Court, but shall not be further disclosed without the
approval of the Court.
App. at 38. Probation Services explained that these conditions are now standard
conditions for the supervision of individuals convicted of sex offenses.
On February 27, 2015, the district court held a hearing on Probation
Services’ request. Just prior to the hearing, Parisi submitted a letter to the court
through counsel objecting to the modified conditions. At the hearing, the court
heard brief arguments by each party and requested supplemental briefing with
respect to Parisi’s objections. On March 23, 2015, having considered the
additional briefing and without holding another hearing, the court issued an
order granting Probation Services’ request. Parisi filed a notice of appeal on
March 31, 2015.
II
We first consider Parisi’s arguments that the court erred in modifying the
conditions of his release because (1) there were no new or unforeseen
circumstances relating specifically to Parisi’s conduct that warranted the
modification, and (2) the new conditions are not reasonably related to the
statutory purpose of supervision and result in a greater deprivation of liberty
than is reasonably necessary. “We review the propriety of a supervised release
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condition,” and modifications to the condition, “for abuse of discretion.” See
United States v. Brown, 402 F.3d 133, 136 (2d Cir. 2005).
A
A court “may modify, reduce, or enlarge the conditions of supervised
release, at any time prior to the expiration or termination of the term of
supervised release” after considering certain sentencing factors outlined in 18
U.S.C. § 3553(a). 18 U.S.C. § 3583(e)(2). Parisi contends, however, that a court
may modify conditions of release under this provision only where new or
unforeseen circumstances specifically relating to the defendant justify the
modification. Because there are no such circumstances here, he argues that the
modification was improper.
As an initial matter, the government contends that Parisi waived this
argument before the district court and, therefore, cannot raise it on appeal. See
United States v. Olano, 507 U.S. 725, 733 (1993); United States v. Jackson, 346 F.3d 22,
24 (2d Cir. 2003). We disagree. Although Parisi conceded below that a violation of
a condition of supervised release is not a prerequisite to modifying conditions of
release, he argued before the district court and again on appeal that in order to
justify a modification, Probation Services must present some new fact or
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circumstance that relates specifically to the defendant. See App. at 69 n.1. In other
words, his position was and is that the court cannot base its modification
determination solely on the same set of facts that it considered at the initial
sentencing hearing. Because he did not waive this position below, we consider
the argument on appeal.
Nonetheless, Parisi’s position is without merit. He relies primarily on our
decision in United States v. Lussier, 104 F.3d 32 (2d Cir. 1997), where we noted that
a district court may modify conditions of supervised release “in order to account
for new or unforeseen circumstances.” Id. at 36. He contends that Lussier suggests
that a modification of supervised release conditions cannot take place without
some action by the defendant or a new circumstance in the defendant’s life that
arises after the original sentence was imposed. However, this reasoning is
contrary to the plain language of Lussier, which does not require new or changed
circumstances relating to the defendant in order to modify conditions of release,
but simply recognizes that changed circumstances may in some instances justify
a modification. See id. So long as the court, when modifying supervised release
conditions, considers the relevant 18 U.S.C. § 3553(a) sentencing factors, there is
no additional requirement that it make a finding of new or changed
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circumstances with respect to the defendant. Cf. United States v. Vargas, 564 F.3d
618, 623–24 (2d Cir. 2009) (holding that a district court may extend a term of
supervised release under 18 U.S.C. § 3583(e) at any time prior to its expiration,
even in the absence of new circumstances); see also United States v. Bainbridge, 746
F.3d 943, 950 (9th Cir. 2014) (“[A] district court can modify a defendant’s
conditions of supervised release . . . even absent a showing of changed
circumstances.”); United States v. Begay, 631 F.3d 1168, 1172 (10th Cir. 2011)
(holding that a district court is not “require[d] . . . to find changed circumstances
in order to modify conditions of supervised release”); United States v. Davies, 380
F.3d 329, 332 (8th Cir. 2004) (“[T]he statute that authorizes district courts to
modify the conditions of supervised release does not require new evidence, nor
even changed circumstances in the defendant’s life.”). Accordingly, because a
change in Parisi’s circumstances is not a prerequisite to a modification under 18
U.S.C. § 3583(e), we decline to reverse the district court on that basis.
B
Parisi next argues that, even if new or changed circumstances are not
required, the district court improperly imposed the new conditions because they
do not satisfy the substantive requirements under 18 U.S.C. § 3583(d) and (e).
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Again, we disagree. A court may order special conditions of supervised release
in addition to the usual general conditions, so long as they are “reasonably
related” to:
(A) “the nature and circumstances of the offense and the history and
characteristics of the defendant”; (B) “the need for the sentence
imposed to afford adequate deterrence to criminal conduct”; (C) the
protection of the public; and (D) the rehabilitative and medical care
needs of the defendant.
Brown, 402 F.3d at 136–37 (quoting U.S. Sentencing Guidelines Manual
§ 5D1.3(b)). The condition “must also involve ‘no greater deprivation of liberty
than is reasonably necessary for the purposes’ of sentencing, and it must be
‘consistent with any pertinent policy statements’ in the Guidelines.” Id. at 137
(quoting 18 U.S.C. § 3583(d)).
The district court found that the new search condition is reasonably related
to the nature of Parisi’s offense conduct and to the broader goals of public safety.
In particular, it found that changes in technology since Parisi was originally
sentenced justify a broader search condition, because Parisi could commit similar
conduct using new technology that would not fit within the scope of the original
search condition. Furthermore, the new search condition includes an outside
constraint—Probation Services must have a reasonable suspicion that Parisi has
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violated a condition of his release or engaged in unlawful conduct before it
engages in a search.
The new search condition is also consistent with the pertinent policy
statement in the Guidelines, which recommends including the following
“special” supervised release condition in cases involving sex offenses:
A condition requiring the defendant to submit to a search, at any
time, with or without a warrant, and by any law enforcement or
probation officer, of the defendant’s person and any property,
house, residence, vehicle, papers, computer, other electronic
communication or data storage devices or media, and effects upon
reasonable suspicion concerning a violation of a condition of
supervised release or unlawful conduct by the defendant, or by any
probation officer in the lawful discharge of the officer’s supervision
functions.
U.S. Sentencing Guidelines Manual § 5D1.3(d)(7)(C). This Guidelines provision is
actually broader than the condition applied to Parisi in that it allows a search by
a probation officer “in the lawful discharge of the officer’s supervision
functions,” even without reasonable suspicion.
Reviewing the new search condition in light of the facts of Parisi’s case, we
cannot conclude that the district court abused its discretion in finding that the
condition was reasonably related to the offense conduct and purposes of the
sentence or that it was a greater deprivation of liberty than reasonably necessary.
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Parisi similarly fails to show that the district court abused its discretion in
imposing the new polygraph/CVSA condition. In United States v. Johnson, 446
F.3d 272 (2d Cir. 2006), we held that “polygraph testing can . . . further
sentencing goals without excessive deprivations of liberty.” Id. at 278.
Specifically, it can “further sentencing objectives such as rehabilitation and
deterrence.” Id. Parisi argues that his case is distinguishable from the facts of
Johnson, because the defendant there was a “serial offender who apparently
resisted honest self‐assessment” and was not “adequately engaged in the
recovery process.” Id. However, the district court could properly conclude that
Parisi’s deceptive behavior during the course of the investigation similarly
warranted the imposition of the modified condition here. Accordingly, we find
that the district court did not abuse its discretion in modifying Parisi’s conditions
of supervised release to include the new polygraph/CVSA condition.
III
We turn next to Parisi’s argument that the district court failed to hold a
hearing in accordance with Rule 32.1(c)(1) of the Federal Rules of Criminal
Procedure. Because he failed to raise this issue before the district court, we
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review the adequacy of the hearing for plain error. See Puckett v. United States,
556 U.S. 129, 135 (2009).
Rule 32.1(c)(1) requires that “[b]efore modifying the conditions of
probation or supervised release, the court must hold a hearing, at which the
person has the right to counsel and an opportunity to make a statement and
present any information in mitigation.” Parisi argues that the modification
hearing that the district court held on February 27, 2015, was inadequate because
the merits of his objections were not reached and he was not given an
opportunity to make a statement and present information in mitigation. We
conclude that Parisi’s arguments on this point are without merit. The district
court heard arguments from Parisi’s counsel and the government on the merits
of Parisi’s objections, and received additional briefing from the parties on its
authority to order the proposed modifications. There is no requirement that the
district court resolve the modification request at the time of the Rule 32.1
hearing. Furthermore, although the court did not specifically invite Parisi to
make a statement on his own behalf, we cannot conclude that he did not have the
opportunity to do so. Accordingly, the district court did not err by not holding a
second hearing on Probation Services’ modification request.
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IV
We have considered all of Parisi’s remaining arguments on this appeal and
do not find them persuasive. The judgment of the district court is AFFIRMED.
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