18‐832
United States v. Maggese
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH
THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 29th day of August, two thousand nineteen.
PRESENT:
PETER W. HALL,
DEBRA ANN LIVINGSTON,
Circuit Judges,
JANE A. RESTANI,
Judge.*
UNITED STATES OF AMERICA,
Appellee,
v. No. 18-832-cr
JOHN MAGGESE,
Defendant-Appellant.
For Defendant-Appellant: JAY S. OVSIOVITCH, Federal Public
Defender’s Office, Western District of New
York, Rochester, NY.
*Judge Jane A. Restani, of the United States Court of International Trade, sitting by
designation.
For Appellee: TIFFANY H. LEE, Assistant United States
Attorney, for James P. Kennedy, Jr.,
United States Attorney for the Western
District of New York, Rochester, NY.
Appeal from a judgment of the United States District Court for the Western
District of New York (Geraci, C.J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the district court’s judgment is AFFIRMED.
Defendant John Maggese appeals from a March 21, 2018 judgment of the
United States District Court for the Western District of New York, revoking his
supervised release and sentencing him to six months’ imprisonment followed by three
years of supervised release. On appeal, Maggese challenges two special conditions of
his supervised release. The first (“Treatment” condition), requires him to “participate
in a sex offense-specific treatment program and follow the rules and regulations of
that program” with Probation “supervis[ing] the details of the defendant’s
participation in the program, including the selection of a provider and schedule.”
App’x 72. The second (“Testing” condition), calls for Maggese to “submit to a
polygraph, computerized voice stress analyzer testing not to exceed twice in the
calendar year, and an additional two retests per year, as needed.” App’x 66. Maggese
argues that the first condition is impermissibly vague and that the second condition
is not reasonably related to the purposes of sentencing. We assume the parties’
familiarity with the underlying facts, procedural history, and issues on appeal.
In 2007, Maggese was convicted of one count of possession of child
pornography, in violation of 18 U.S.C. §2252A(a)(5)(B) and sentenced to 48 months’
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imprisonment to be followed by ten years’ supervised release. As part of his
conditions of his supervised release Maggese was required “to enroll, attend, and
participate in mental health intervention specifically designed for the treatment of
sexual offenders as approved by the U.S. Probation Office.” App’x 13.
On March 12, 2018, Maggese admitted he had violated the terms of his
supervised release because he had been discharged from mental health treatment
due to his “deceptive and high-risk behaviors,” including viewing pornographic
material and watching the Little League World Series and religious shows to view
children as a stimulation for masturbation. App’x 23, 58. He was subsequently
sentenced to six months’ imprisonment followed by three years’ supervised release.
As part of his supervised release, the district court imposed several special conditions
of release, including the Treatment and Testing conditions.
I. The Treatment Condition
We review for abuse of discretion the district court’s imposition of a condition
of supervised release. United States v. Peterson, 248 F.3d 79, 82 (2d Cir. 2001). In so
doing, we will determine that a district court has exceeded the bounds of its discretion
“if it based its ruling on an erroneous view of the law or a clearly erroneous
assessment of the evidence.” Id. (internal quotation marks omitted). Maggese asserts
that the Treatment condition is impermissibly vague because it “does not explain how
the probation officer will supervise Mr. Maggese’s participation in the program and
what responsibilities exist beyond the selection of a treatment provider and
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scheduling.” Brief for Appellant at 26. His argument is unavailing. The district court
did not impermissibly delegate its judicial authority to the Probation Office.
The power to impose special conditions of supervised release is vested
exclusively in the district court. 18 U.S.C. § 3583; U.S.S.G. § 5D1.3(b)-(e). A district
court may delegate to a probation officer decisionmaking authority over certain minor
details of supervised release. Peterson, 248 F.3d at 85. A district court, however, “may
not delegate to the Probation Department decisionmaking authority which would
make a defendant’s liberty itself contingent on a probation officer’s exercise of
discretion.” United States v. Matta, 777 F.3d 116, 122 (2d Cir. 2015). “In other words,
the extensive supervision mission of federal probation officers includes executing the
sentence, but not imposing it.” Id.
Here, the Treatment condition complained of makes clear that treatment is
mandatory. It states Maggese “must participate in a sex offense-specific treatment
program and follow the rules and regulations of that program.” App’x 72 (emphasis
added). Probation was merely given the discretion to decide administrative aspects
of the treatment such as the “selection of a provider and [the] schedule.” Id. The
condition mandating treatment is permissible.
II. The Testing Condition
Maggese’s argument that the Testing condition is not reasonably related to the
purposes of sentencing because computerized voice stress analysis is unreliable is
without merit. Although Maggese expressly argues for the first time on appeal that
the Testing condition is not reasonably related to the purposes of sentencing, this was
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the clear implication of his challenge to the testing. We conclude that the district
court properly imposed the condition.
As an initial matter, Maggese’s insistence that we must vacate the court’s
judgment because there is a conflict between the written special condition and the
court’s oral pronouncement is wrong. We have previously held, and Maggese
concedes, see Brief for Appellant at 37, that “[i]nsofar as there is a variance between
the written and oral conditions, the District Court’s oral pronouncement controls.”
United States v. Young, 910 F.3d 665, 670 (2d Cir. 2018); see also United States v.
Washington, 904 F.3d 204, 208 (2d Cir. 2018). At oral argument Maggese’s counsel
conceded that resentencing was not needed to simply insert “or” where it was
intended in the oral pronouncement.
Generally, a district court may impose a special condition of supervised release
so long as the condition, among other things, is “reasonably related” to the nature of
the offense and to the goals of deterrence, rehabilitation, and public safety described
in 18 U.S.C. § 3553(a). 18 U.S.C. § 3583(d)(1)-(3). We have held that “the incremental
tendency of polygraph testing to promote . . . candor” from a defendant “furthers the
objectives of sentencing by allowing for more careful scrutiny of offenders on
supervised release.” United States v. Johnson, 446 F.3d 272, 277 (2d Cir. 2006).
Acknowledging the potential unreliability of polygraph testing, we explained in
Johnson that the polygraph can still “deter lying . . . because of the subject’s fear that
it might work, or be credited by others whether it works or not.” Id. Although the
court in Johnson dealt with the issue of polygraph testing and here we are asked to
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address the use of computerized voice stress analysis, the principles underlying
Johnson apply equally in this case.
Here, it is hard to distinguish Maggese’s challenge from the defendant’s
argument in Johnson; Maggese’s core argument with respect to the computerized
voice stress analyzer is practically identical to the defendant’s assertion in Johnson
about polygraph testing—that its purported unreliability precludes the court from
finding it is reasonably related to the purposes of sentencing. Maggese’s violations of
the terms of his supervised release indicate he was engaging in “deceptive and high-
risk behaviors” and that polygraph or computerized voice stress analyzer testing
would “help penetrate deception and encourage [Maggese] to confront his own
motivations and behaviors.” Johnson, 446 F.3d at 278. That testing was not intended
to be used to build a case against Maggese; rather, it was meant to help Maggese’s
progress in treatment. While counsel did state that he had researched the reliability
of computerized voice stress analyzers, he did not proffer evidence of unreliability to
the district court demonstrating that computerized voice stress analyzers are so less
reliable than polygraph testing that they have no therapeutic use. Thus, we have no
record to review on this point.
We have considered Maggese’s remaining arguments and find them to be
without merit. Accordingly, we AFFIRM the district court’s judgment.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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