United States v. Leone

19-1670
United States v. Leone
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 20th day of May, two thousand twenty.

PRESENT:
BARRINGTON D. PARKER,
SUSAN L. CARNEY,
STEVEN J. MENASHI,
Circuit Judges.
_________________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 19-1670

ADAM J. LEONE,

Defendant-Appellant.
_______________________________________

FOR DEFENDANT-APPELLANT: TIMOTHY P. MURPHY, Federal Public
Defender’s Office for the Western District
of New York, Buffalo, NY.

FOR APPELLEE: TIFFANY H. LEE, Assistant United States
Attorney, for James P. Kennedy, Jr., United
States Attorney for the Western District of
New York, Buffalo, NY.
 Appeal from a judgment of the United States District Court for the Western District
of New York (Wolford, J.).

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment entered on May 23, 2019, is
AFFIRMED, and the cause is REMANDED for further proceedings consistent with this
Order.

Adam J. Leone appeals from a judgment of conviction for possession of child
pornography in violation of 18 U.S.C. § 2252A, entered after a guilty plea. The United States
District Court for the Western District of New York (Wolford, J.) sentenced Leone primarily
to 60 months of incarceration, to be followed by ten years of supervised release. We assume
the parties’ familiarity with the underlying facts, procedural history, and arguments on
appeal, to which we refer only as necessary to explain our decision to affirm.

On appeal, Leone challenges certain conditions that the district court imposed on his
supervised release. We review preserved challenges to conditions of supervised release under
“an abuse of discretion standard.” United States v. Reeves, 591 F.3d 77, 80 (2d Cir. 2010).
When a defendant fails to object to the condition in the district court, we review “only for
plain error.” United States v. Green, 618 F.3d 120, 122 (2d Cir. 2010). 1

1. The Drug, Sex Offense, and Mental Health Treatment Conditions

Leone first contends that three of the special conditions impermissibly delegate
treatment decisions to the U.S. Probation Office (“Probation”). These three conditions
require him to participate in various treatment programs. They are: Special Condition #1
(the “Drug Treatment Condition”), Special Condition #3 (the “Sex Offense Treatment
Condition”), and Special Condition #9 (the “Mental Health Treatment Condition”). Because
the power to impose special conditions is vested exclusively in the district court, see 18
U.S.C. § 3583, we have explained that “a district court may not delegate to the Probation

1Leone objected at his sentencing to the imposition of all but one of the conditions he attacks on appeal. As
he acknowledges, he failed to challenge the imposition of Special Condition #4 (the “Pre-Approval
Condition”).

2
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). A district court may, however, “delegate to a probation officer
decisionmaking authority over certain minor details of supervised release—for example, the
selection of a therapy provider or treatment schedule.” Id. (citation omitted).

Here, with respect to each of the three challenged conditions, the sentencing court
was careful to delegate to Probation only “the details” of “any testing and treatment” or of
“the defendant’s participation in the program,” “including the selection of a treatment
provider and schedule.” App’x 150-51. Those limitations were expressed by the district court
both orally at sentencing and in the written judgment that the court entered. The court’s use
of the word “including” cannot reasonably be understood as expanding Probation’s
decisionmaking authority beyond the administrative details of treatment such that it rendered
Leone’s “liberty itself contingent on a probation officer’s exercise of discretion.” Matta, 777
F.3d at 122. Indeed, this Court has used the same word in the same context. See United States
v. Petersen, 248 F.3d 79, 85 (2d Cir. 2001) (holding that a district court may leave to the
probation officer’s discretion “a variety of details, including the selection of a therapy provider
and schedule” (emphasis added)). We easily conclude that the district court did not abuse its
discretion in imposing these special conditions.

2. The Monitoring Condition

Next, Leone urges that the court’s imposition of Special Condition #2 (the
“Monitoring Condition”) violates his rights under the First, Fifth, and Eighth Amendments
to the U.S. Constitution. The Monitoring Condition provides in relevant part:

The defendant shall not use or possess any computer, data
storage device, or any internet capable device unless the
defendant participates in the Computer and Internet Monitoring
Program (CIMP), or unless authorized by the Court or the U.S.
Probation Office. The defendant must provide the U.S.
Probation Office advance notification of any computer(s),
automated service(s), or connected device(s) that will be used
during the term of supervision. . . . The defendant will be required

3
 to pay the cost of monitoring services unless otherwise ordered
by the Court.
App’x 150.

Leone first characterizes the Monitoring Condition as amounting to a total ban on his
access to the Internet and therefore contravening the Supreme Court’s decision in
Packingham v. North Carolina, 137 S. Ct. 1730 (2017), and our own recent decision in United
States v. Eaglin, 913 F.3d 88 (2d Cir. 2019). This argument misunderstands the plain text and
effect of the Monitoring Condition. As its text reflects, this provision merely imposes
conditions on Leone’s Internet use, not an absolute ban: it requires Leone to participate in the
monitoring program or to obtain advance permission from Probation or the court for his
usage. Indeed, we have previously explained that “internet or computer monitoring” is
separate and distinct from, and—at least as the condition is generally stated in similar
judgments—does not amount to “an internet ban.” United States v. Browder, 866 F.3d 504, 511
n.26 (2d Cir. 2017) (emphases in original).

Thus, this case simply does not implicate Packingham, 137 S. Ct. at 1733, 1737—in
which the Supreme Court invalidated a statute that subjected registered sex offenders to
criminal penalties for accessing certain social media websites—or Eaglin, 913 F.3d at 94—in
which this Court rejected a special condition of supervised release that altogether prohibited
the defendant from accessing the Internet without the specific approval of the court. To the
contrary, we have often approved the imposition of conditions that are similar or identical to
the Monitoring Condition in circumstances such as those presented here, where a defendant
has a history of accessing child pornography over the Internet. See Browder, 866 F.3d at 509-
12; see also United States v. Savastio, 777 F. App’x 4, 6-7 (2d Cir. 2019). We see no reason to
depart from our precedent.

The argument that the Monitoring Condition is unduly vague because, for example,
“[m]icrowaves and modern refrigerators” could, but do not necessarily, fall within its scope,
Appellant’s Br. 20, is one that we “quickly dispose of,” for the reasons that we have rejected
similar arguments along those lines elsewhere. United States v. Balon, 384 F.3d 38, 43 (2d Cir.
2004) (rejecting contention that “the term computer, as it is commonly understood, includes

4
everything from an automated teller machine, to an airport self-service check-in kiosk”
(internal quotation marks omitted)). Moreover, as we have said, a vagueness challenge is
unripe where “[t]he district court retains the discretion to remedy a potential ambiguity in
the language of a special condition.” United States v. Burdick, 789 F. App’x 886, 888-89 (2d
Cir. 2019).

Finally, Leone takes the position that the Monitoring Condition’s “requirement” that
he pay the full cost of monitoring services is arbitrary and punitive, and prohibited by the
Eighth Amendment’s Excessive Fines Clause. Appellant’s Br. 21-24. As an initial matter, we
do not read the condition as imposing an absolute requirement that Leone pay a fee; rather,
we understand the condition to establish a presumption that he will pay for monitoring
services he chooses to use unless he cannot afford to do so, in which case the condition
empowers him to seek an exemption from the district court. Nor is reimbursement for
services rendered properly labeled a “fine.” E.g., United States v. Bajakajian, 524 U.S. 321, 327-
28 (1998) (explaining that a payment to the government is a “fine” if it is “punishment for
some offense”).

Moreover, a proper reading of the Monitoring Condition highlights why Leone’s
challenge to the possible charge is unripe: “it presents issues that might never arise.” United
States v. Johnson, 446 F.3d 272, 279 (2d Cir. 2006). At present, we do not know what the cost
of participating in the monitoring program will be when Leone is released, whether
Probation will hold Leone responsible for paying those costs, whether Leone will have the
financial means to pay, and whether the district court will require him to pay if he says that
he cannot. If it proves to be the case that the district court requires an indigent Leone to pay
to participate in monitoring services, he may mount a challenge at that time. See Balon, 384
F.3d at 47. At this time, however, as the condition is currently framed and in the
circumstances now presented, we identify no abuse of discretion in the district court’s
imposition of the Monitoring Condition.

5
 3. The Polygraph Condition

Leone then asks us to vacate the imposition of Special Condition #8 (the “Polygraph
Condition”), which requires him to submit to two polygraph or similar tests each year. His
challenge rests on the plaint that the district court did not address his objection that such
testing procedures are unreliable. This argument is foreclosed by our body of precedent
affirming the imposition of similar or identical conditions on the ground that “the
incremental tendency of polygraph testing to promote such candor [i.e., truthful statements
to the defendant’s probation officer] furthers the objectives of sentencing by allowing for
more careful scrutiny of offenders on supervised release.” Johnson, 446 F.3d at 277. We have
upheld such testing “notwithstanding [polygraph testing’s] arguable or occasional
unreliability because of the subject’s fear that it might work, or be credited by others whether
it works or not.” Id. In fact, we have frequently articulated our willingness to adopt new or
potentially uncertain testing methods where the purpose of the testing is not to assess
truthfulness, but rather the ancillary purpose of encouraging it. Id.; see also United States v. Boles,
914 F.3d 95, 112 (2d Cir. 2019) (polygraph testing); United States v. Parisi, 821 F.3d 343, 349
(2d Cir. 2016) (polygraph/computer voice stress analyzer (“CVSA”) testing); United States v.
Maggese, 785 F. App’x 879, 881-82 (2d Cir. 2019) (CVSA).

We conclude that the district court acted well within in its discretion in imposing this
condition.

4. The Pre-Approval Condition

For the first time on appeal, Leone takes issue with Special Condition #4 (the “Pre-
Approval Condition”). Although we could treat this challenge as waived, see, e.g., United States
v. Kelly, 147 F.3d 172, 177 (2d Cir. 1998), we address it, applying plain error review.

The Pre-Approval Condition provides:

The defendant shall not have deliberate contact with any child
under 18 years of age, excluding his biological or adopted
children, unless approved by the probation officer or by the
Court. The defendant shall not loiter within 100 feet of school
yards, playgrounds, arcades or other places primarily used by

6
 children under the age of 18. The Probation Office has the
discretion to authorize the defendant to pick up his children from
school or other functions; however, authorization must be
obtained in advance from the Probation Office, or alternatively
from the Court.
App’x 150. As the government conceded at oral argument, and as we agree based on its text,
the condition does not preclude Leone from entering locations such as shopping malls,
where he may encounter, but that are not “primarily used” by, children, provided that he
does not enter such locations for the deliberate purpose of having contact with children.

In Leone’s view, the district court did not adequately explain why the Pre-Approval
Condition was reasonably necessary in his case to promote the relevant 18 U.S.C. § 3553(a)
factors, as we have explained it “must” unless those reasons are “obvious from the record.”
United States v. Bleau, 930 F.3d 35, 43 (2d Cir. 2019). The district court explained that Leone’s
extensive child pornography collection, history of online communication with minors, and
admission that he “receiv[ed] sexual gratification from [handling his minor sister’s]
underwear” and “spying on” his minor sister, and that he sought underwear from his sister’s
friends, all forced it to conclude that he “present[ed] a danger to the community and in
particular to minors.” App’x 124-25. We see no plain error—or even an abuse of
discretion—in the imposition of this condition or in the adequacy of the district court’s
explanation.

5. The Risk Notification Condition

We turn finally to Standard Condition #12 (the “Risk Notification Condition”),
which Leone says is invalid because the district court failed to orally pronounce it during
sentencing. The Risk Notification Condition allows the probation officer to require Leone to
notify persons or entities of a risk of his committing further crimes if the court determines,
in consultation with the probation officer, that Leone presents such a risk based on his
criminal record, personal history and characteristics, and the nature and circumstances of his
offense.

A district court is not required to make “explicit reference to each and every standard
condition of supervision.” United States v. Truscello, 168 F.3d 61, 63 (2d Cir. 1999). To the

7
contrary, “at oral sentencing, even the most general allusion to the ‘standard conditions’ of
supervised release is a sufficient basis on which to predicate the imposition of each of the
conditions normally regarded as standard.” Id. The district court’s discussion of which
iteration of the Risk Notification Condition it was imposing (the version amended by
standing order of the Western District of New York), see App’x 135-36, easily clears that low
bar. So too does the court’s command that Leone comply with “the standard conditions
adopted by this court.” App’x 137. See generally United States v. Smith, 982 F.2d 757, 759, 764
(2d Cir. 1992) (explaining that a court’s reference to “the standard conditions that have been
adopted by this court” suffices to impose those conditions).

Leone makes a new argument on appeal: He maintains that the Risk Notification
Condition is (or at least should be) a special condition, not a standard condition, of
supervised release, and that its imposition was not warranted in his own case. 2 Of course, the
Risk Notification Condition is not a special condition. See U.S. Sentencing
Guidelines § 5D1.3(c)(12). But, even if it were, we think the record more than supports its
imposition. The district court determined, including for the reasons stated above, that Leone
presented a significant risk to the public. It rightly recognized its duty “to protect children
and not allow them to be abused or victimized.” App’x 126. The court did not abuse its
discretion or otherwise err in determining that evidence of Leone’s positive characteristics
was outweighed by the “danger [he presented] to the community and in particular to
minors,” App’x 125, and therefore some warning of that danger might be warranted in some
(but not all) circumstances.

In addition, Leone (like others with pending appeals), submits that the Risk
Notification Condition impermissibly delegates judicial authority to Probation and is
impermissibly vague. We cannot resolve these issues at this time, however, because another
panel of our Court is considering parallel challenges in a pending appeal that has priority
over this case. United States v. Traficante, No. 18-1962 (argued Oct. 25, 2019). That panel’s

2As we explained, we often decline to review issues raised for the first time on appeal, Kelly, 147 F.3d at 177,
or in reply briefs, see, e.g., JP Morgan Chase Bank v. Altos Hornos de Mex., S.A. de C.V., 412 F.3d 418, 428 (2d Cir.
2005). In the interest of finality, however, we briefly explain why Leone’s argument has no merit.

8
decision will likely be controlling as to Leone’s challenges. In the interest of expediency, we
therefore remand Leone’s cause to the district court to enable it to give timely consideration
to our forthcoming decision in Traficante and, if necessary, to modify the relevant provision
of Leone’s sentence accordingly. We further grant the parties leave to reinstate this appeal by
letter to the Clerk of this Court, to permit timely review of the district court’s decision on
remand as to the Risk Notification Condition.

* * *

We have considered Leone’s remaining arguments and conclude that they are without
merit. For the reasons set forth above, the district court’s judgment is AFFIRMED, and the
cause is REMANDED for further proceedings consistent with this Order.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court

9