NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 9 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-30238
Plaintiff-Appellee, D.C. No. 3:13-cr-00064-HZ-1
v.
MEMORANDUM*
CYRUS ANDREW SULLIVAN,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernandez, District Judge, Presiding
Argued and Submitted October 6, 2017
Portland, Oregon
Before: PAEZ and BEA, Circuit Judges, and ANELLO,** District Judge.
Cyrus Sullivan appeals the district court’s order amending and modifying
conditions of supervised release imposed following Sullivan’s conviction for
making a threatening communication in violation of 18 U.S.C. § 875(c). We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Michael M. Anello, United States District Judge for
the Southern District of California, sitting by designation.
jurisdiction under 28 U.S.C. § 1291. We review a district court’s conclusions
regarding supervised release conditions for abuse of discretion. United States v.
Gnirke, 775 F.3d 1155, 1159 (9th Cir. 2015). We affirm.
Prior to his arrest, Sullivan created and operated a website called
STDCarriers.com that allowed registered users to post anonymously information
about the sexual health of third parties. One woman, A.K., learned that her former
boyfriend had posted derogatory information about her on Sullivan’s website.
A.K. contacted Sullivan to remove this information, which sparked a series of
combative communications between Sullivan and A.K. Eventually, Sullivan sent
A.K. a hostile and threatening email that resulted in the criminal charge under §
875(c). Sullivan pleaded guilty, and the district court imposed several conditions
of supervision. In this appeal, Sullivan seeks relief from special condition 8, which
prohibits Sullivan from owning or operating any former website, including
STDCarriers.com, and any similar website that offers reputation management
services.1
Sullivan contends special condition 8 constitutes an impermissible
1
Sullivan also challenges the imposition of special condition 12, which subjects
his employment to approval by the probation officer. The district court, however,
recently revoked Sullivan’s supervised release and imposed new release
conditions, which include special condition 8 but omit special condition 12. As
such, Sullivan’s challenge to special condition 12 is moot.
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occupational restriction.2 A district court can impose an occupational restriction
that limits a defendant’s engagement only “in a specified occupation, business, or
profession bearing a reasonably direct relationship to the conduct constituting the
offense.” 18 U.S.C. § 3563(b)(5). Additionally, the district court must find “there
is reason to believe that, absent such restriction, the defendant will continue to
engage in unlawful conduct similar to that for which the defendant was convicted.”
U.S.S.G. § 5F1.5(a)(2).
Sullivan argues there is no direct relationship between the operation of
STDCarriers.com and making a threatening communication via email. However,
as the district court noted, “This whole event arose because the defendant was
running this particular business.” Sullivan also used his business email address to
send the threatening email to A.K. Accordingly, the district court did not abuse its
discretion in finding a direct relationship between the occupational restriction and
2
This Court affirmed on direct appeal the imposition of a former version of
special condition 8, which prohibited Sullivan from accessing any online computer
service or directing third parties to do so on his behalf without prior written
approval of the probation officer. See United States v. Sullivan, 588 F. App’x 631,
632 (9th Cir. 2014) (“We have examined special conditions of supervised release 7
and 8 and conclude that they are not illegal.”). The government argues collateral
estoppel bars Sullivan’s current challenge, and moves for judicial notice of
Sullivan’s opening brief filed in his direct appeal. The government’s motion is
granted. Collateral estoppel, however, does not bar Sullivan’s current challenge
because the issues in the two actions are not “sufficiently similar and sufficiently
material . . . to justify invoking the doctrine.” United States v. Smith-Baltiher, 424
F.3d 913, 919 (9th Cir. 2005) (quoting United States v. Romeo, 114 F.3d 141, 143
(9th Cir. 1997)).
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Sullivan’s offense of conviction. See United States v. Betts, 511 F.3d 872, 874-75
(9th Cir. 2007).
We also reject Sullivan’s argument that special condition 8 is not reasonably
necessary to protect the public because there is no evidence that, absent special
condition 8, he “will continue to engage in unlawful conduct similar to that for
which he was convicted.” U.S.S.G. § 5F1.5(a)(2). The record reflects that
Sullivan’s website generated “complaints from people literally around the world,”
and Sullivan’s attorney conceded at the motion hearing that “it’s always possible
that this situation is going to resume itself.” The district court did not abuse its
discretion in finding that Sullivan would likely engage in unlawful conduct similar
to issuing threatening communications if he continued to operate his website or
any similar website. See Betts, 511 F.3d at 875 (“The public is entitled to be
protected against crimes flowing from the same character trait demonstrated by the
crime.”).
AFFIRMED.
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