[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 02-16210 JULY 25, 2003
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D.C. Docket No. 02-00094-CR-J-21
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES FINLEY TAYLOR,
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Middle District of Florida
_________________________
(July 25, 2003)
Before CARNES, BARKETT and HULL, Circuit Judges.
PER CURIAM:
James Finley Taylor appeals the special conditions of supervised release
imposed on him pursuant to his conviction for use of interstate facilities to
transmit information about a minor “with the intent to entice, encourage, offer, or
solicit any person to engage in [criminal] sexual activity” with the minor, 18
U.S.C. § 2425, and for possession of a firearm by a convicted felon, 18 U.S.C. §§
922(g)(1), 924(a). We affirm.
I. BACKGROUND
A woman hired Taylor to remodel her kitchen.1 About a month into the
project, the woman informed Taylor that she was not happy with his work, would
no longer require his services, and may choose not to pay him any more.
Taylor responded by engaging in a series of harassing and threatening
activities, including posting a message on an internet bulletin board encouraging
men to call the woman’s 12-year-old daughter in order to engage in sexual
activities. The woman and her daughter reported receiving fifteen to thirty calls
and that these calls emotionally traumatized the child.
Authorities searched Taylor’s house, finding the computer that he used to
post the message as well as seven firearms. They seized the firearms because
Taylor’s 1986 guilty plea to a sexual battery charge involving his toddler daughter
made him a convicted felon prohibited from possessing firearms.
1
In order to protect their privacy, the names of the victims are not used.
2
Taylor pleaded guilty to use of interstate facilities, here, the internet, to
transmit information about a minor “with the intent to entice, encourage, offer, or
solicit any person to engage in [criminal] sexual activity” with the minor, 18
U.S.C. § 2425, and to possession of a firearm by a convicted felon, 18 U.S.C. §§
922(g)(1), 924(a). He was sentenced to 63 months imprisonment and three years
of supervised release. On appeal, Taylor challenges the following special
conditions of supervised release: (1) submission to polygraph testing, (2)
restrictions on internet access, (3) registration as a sex offender, and (4) a
restriction on visiting places where children congregate.
II. SENTENCING CONSIDERATIONS
In fashioning a sentence, the district court must consider the factors listed in
18 U.S.C. § 3553(a). These 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 . . . (A) to reflect the seriousness of the offense . . .; (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 . . .
correctional treatment in the most effective manner . . . .” 18 U.S.C. § 3553(a).
“The district court may impose any condition of supervised release it deems
appropriate so long as it comports with the factors enumerated in § 3553(a).”
3
United States v. Zinn, 321 F.3d 1084, 1089 (11th Cir. 2003) (citing 18 U.S.C. §
3583(d)). “Similarly, the federal Sentencing Guidelines permit the sentencing
court to impose any conditions of supervised release that are ‘reasonably related’
to the § 3553(a) factors, so long as the conditions ‘involve no greater deprivation
of liberty than is reasonably necessary for the purposes set forth in § 3553(a) and
are consistent with any pertinent policy statements issued by the Sentencing
Commission.’ ” Id. (citing United States Sentencing Guidelines (U.S.S.G.) §
5D1.3(b)). “We have observed it is not necessary for a special condition to be
supported by each factor enumerated in § 3553(a). Rather, each is an independent
consideration to be weighed.” Id. (citing United States v. Bull, 214 F.3d 1275,
1278 (11th Cir. 2000)). “Moreover, while the Sentencing Guidelines recognize
that a condition of supervised release should not unduly restrict a defendant's
liberty, a condition is not invalid simply because it affects a probationer's ability to
exercise constitutionally protected rights.” Id.
III. DISCUSSION
We review the district court’s imposition of a special condition of
supervised release for abuse of discretion, so long as the objection was preserved
for appeal. See United States v. Bull, 214 F.3d 1275, 1278 (11th Cir. 2000). We
will reverse only if we have a “definite and firm conviction that the [district] court
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committed a clear error of judgment in the conclusion it reached.” Davenport
Recycling Assoc. v. Cmm’r, 220 F.3d 1255, 1258 (11th Cir. 2000).
A. SUBMISSION TO POLYGRAPH TESTING
As a special condition on Taylor’s supervised release, the district court
ordered Taylor to “participate in a mental health program specializing in sexual
offender treatment approved by the probation officer, and abide by the rules,
requirements and conditions of the treatment program, including submitting to
polygraph testing to aid in the treatment and supervision process.” Taylor makes
five challenges to the polygraph testing.
First, Taylor contends that the polygraph testing is not reasonably related to
his conviction under the standards listed in 18 U.S.C. § 3553(a), quoted in Section
II above. Given his record, we disagree. The district court required polygraph
testing to help insure Taylor’s compliance with the supervised release terms
imposed on him. 2 Following his 1986 conviction, Taylor failed to comply with
the terms of his supervised release and that release was revoked. The district court
also required the polygraph testing to help insure that Taylor receives the mental
2
We have recognized that examinations of this kind help insure compliance with the
conditions of supervised release because probationers fear that any false denials of violations will
be detected. Owens v. Kelly, 681 F.2d 1362, 1364, 1369-70 (11th Cir. 1982) (discussing
Psychological Stress Evaluation examinations).
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health/sexual offender treatment he requires. Taylor’s 1986 conviction was for
sexual battery of his toddler daughter. Taylor’s current conviction is based on his
extreme reaction to a contractual dispute which ultimately resulted in his placing a
12-year-old-child in harm’s way by presenting her as a willing victim for
pedophiles. Under these circumstances, the district court did not abuse its
discretion in determining that the polygraph testing is reasonably related to the
factors listed in 18 U.S.C. § 3553(a). Compare United States v. Zinn, 321 F.3d
1084, 1089-90 (11th Cir. 2003). Further, the polygraph testing does not, as Taylor
suggests, result in an “excessive deprivation of [his] liberty interests.”
Second, Taylor contends that the polygraph testing condition is so vague
that it “delegat[es]. . .judicial responsibility to the probation office and deprives
Taylor [of] notice of what is required of him.” We rejected this argument in Zinn,
although the review was only for plain error because the objection had not been
preserved for appeal. Zinn, 321 F.3d at 1087, 1092. In Zinn, we recognized that
the sentencing guidelines “expressly permit[ ]” the district court to require
defendants to “ ‘participate in a mental health program approved by the United
States Probation Office,’ ” and we repeated our firm belief that probation officers
play a vital role in effectuating the sentences imposed by district courts. Id. at
1092 (quoting U.S.S.G. § 5B1.3(d)(5), p.s. and citing United States v. Bernardine,
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237 F.3d 1279, 1283 (11th Cir. 2001)). In Bernardine, we said that a probation
officer “is appointed by the district court and acts. . . under the discretion of the
appointing court,” is an “arm of the court,” and is “a liaison between the [district]
court . . . and the defendant.” Bernardine, 237 F.3d at 1282-83 (citations and
internal marks omitted). We also said that “a probation officer is statutorily
mandated to perform any other duty that the court may designate” and that we
interpret this grant of authority broadly, though it is limited by Article III of the
Constitution which prohibits the delegation of judicial functions. Id. at 1283
(citations and internal marks omitted). For these reasons, the district court in this
case did not abuse its discretion.
Third, Taylor contends that the polygraph testing condition violates his
Fifth Amendment privilege against self-incrimination. He argues that the district
court’s failure to specify the subject matter of the testing means that he could be
asked questions that incriminate him, and that Florida law would require the
examiner to report those answers, thereby subjecting Taylor to criminal liability.
However, Taylor’s injury is entirely speculative because no incriminating
questions have been asked. See Zinn, 321 F.3d at 1091. Because Taylor has not
been compelled to testify despite a valid claim of privilege, we can “only decide
whether requiring polygraph testing as a condition of supervised release generally
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violates the Fifth Amendment so as to amount to [an abuse of discretion].” Id. at
1092. Zinn held there was no plain error. Id. We hold there was no abuse of
discretion.
Fourth, Taylor contends that the district court improperly ordered him “to
pay the costs of polygraph examinations, notwithstanding its conclusion that [he]
did not have the ability to pay a fine.” What the district court’s order actually
says is: “[T]he defendant shall contribute to the costs of such treatment and/or
polygraphs, not to exceed an amount determined reasonable by the probation
officer based on ability to pay or availability of third-party payment and in
conformance with the probation office’s applicable sliding scale.” Taylor’s
argument is meritless.
Finally, Taylor contends that the cumulative effect of his arguments requires
that we find that the district court abused its discretion. We disagree. Taylor’s
arguments, which are inadequate individually, are no more adequate collectively.
B. RESTRICTIONS ON INTERNET ACCESS
Taylor contends that the special condition prohibiting him from using or
possessing a computer with internet access is unreasonable and overbroad.
Further, he maintains that “[b]ecause the court authorized [the probation officer] to
search [his] computer hard drives and other applications, the probation officer
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could easily monitor [his] use of the computer.” He concludes that this restriction
fails because it is ambiguous and impinges upon his First Amendment right to use
computers for legitimate purposes.3
In Zinn, we addressed restrictions on internet access. Id. at 1092. In the
face of Zinn’s challenges that the restriction was both unconstitutionally
overbroad and not reasonably related to the appropriate sentencing considerations
(set forth in Section II above), we found no abuse of discretion. Id. at 1092-94.
While recognizing the value of the internet for legitimate purposes, we were also
cognizant of the dangers to the public when sex offenders are on-line. Id. at 1093.
Here, we agree with the government that Taylor’s crime was not merely enabled
by the internet. In fact, he used the internet as his tool to harass his former client
and to endanger her daughter by capitalizing on the internet’s effectiveness as a
means of reaching pedophiles. Restrictions on Taylor’s internet access are
undeniably related to the factors listed in 18 U.S.C. § 3553(a).
As to his other arguments, if Taylor has a legitimate need to use a computer
after his release, the district court’s order authorizes his probation officer to allow
3
Taylor also argues in this appeal for the first time that the internet restrictions are
unnecessary to the extent that they prohibit him from possessing child pornography which is already
against Florida law. However, the child pornography restriction is a separate condition and any issue
involving it is not properly before us because it was not raised in the district court. In any event,
Taylor’s argument is meritless.
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that use. Also, the district court did not abuse its discretion in authorizing the
probation office to monitor Taylor’s compliance with this condition by searching
Taylor’s computer hard drive and other applications, especially in light of the
qualification that “[t]he inspection shall be no more intrusive than necessary to
insure compliance.” Finally, we reject Taylor’s arguments that the district court’s
order is ambiguous because it is not clear whether he may use a computer which is
capable of being connected to the internet but is not connected, or whether he may
use other technology, such as a phone or television, to access the internet.
C. REGISTRATION AS A SEX OFFENDER
Taylor pleaded guilty to violating 18 U.S.C. § 2425, which is codified in
chapter 117 of title 18. The sentencing guidelines mandate that individuals
convicted under that chapter register as sex offenders. U.S.S.G. § 5D1.3(a)
(requiring, in pertinent part, individuals described by 18 U.S.C. § 4042(c)(4) to
register as sex offenders); 18 U.S.C. § 4042(c)(4) (describing individuals
convicted under chapter 117 of title 18 as among those subject to the sex offender
registration requirement). Accordingly, the district court required Taylor to
register as a sex offender. Taylor challenges this special condition.
Taylor argues that he has a procedural due process right to a hearing before
being stigmatized as a sex offender. A panel of this Court recently rejected this
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precise argument under indistinguishable circumstances. See United States v.
Veal, 322 F.3d 1275 (11th Cir. 2003). Taylor first relies on Kirby v. Siegelman,
195 F.3d 1285 (11th Cir. 1999), which is inapplicable because the defendant in
Kirby , unlike Taylor, was never convicted of a sex crime. See Veal, 322 F.3d at
1277. Taylor next relies on Doe v. Dep’t of Public Safety, 271 F.3d 38 (2d Cir.
2001), reversed ___ U.S. ___, 123 S.Ct. 1160 (2003). Doe was never binding
precedent on this Court, see Veal, 322 F.3d at 1278 (citing United States v.
Rosenthal, 763 F.2d 1291, 1294 n. 4 (11th Cir.1985)), and has recently been
reversed, see Connecticut Department of Safety v. Doe, ___ U.S. ___, 123 S.Ct.
1160 (2003). As Taylor cannot present binding precedent to support a convicted
sex offender’s due process right to a hearing prior to imposing the special
condition mandated by the sentencing guidelines, the district court did not abuse
its discretion by not conducting a hearing. See Veal, 322 F.3d at 1278-79.
D. RESTRICTION ON VISITING PLACES WHERE CHILDREN
CONGREGATE
Taylor also challenges the special condition on his supervised release that
he have no direct contact with minors without his probation officer’s written
approval and that he “refrain from entering into any area where children frequently
congregate, including schools, day care centers, theme parks, playgrounds, etc.”
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Taylor maintains that the condition is vague because the list uses the term “etc.”
Conceivably, he suggests, the restriction could extend to churches, libraries, fast
food restaurants, movie theaters, and shopping malls. Moreover, he asserts that
the restriction does not put him on notice of “how many young people must be
present to trigger the condition . . . .” He concludes that the restriction has “the
potential to severely curtail, if not eliminate, [his] freedom of movement and
association,” and “[l]eft to the discretion of the probation office, [he] could be
conceivably restricted from the majority of public locations.”
Once again, Zinn raised this same challenge and we rejected it. Zinn, 321
F.3d at 1088. However, we did so without elaboration. Id. While the same
process is justified here, we note that our sister Circuits have provided persuasive
arguments in support of the conclusion stated in the Zinn opinion. See United
States v. Paul, 274 F.3d 155, 167 (5th Cir. 2001), cert. denied, 535 U.S. 1002, 122
S.Ct. 1571 (2002) (“Sentencing courts must inevitably use categorical terms to
frame the contours of supervised release conditions. Such categorical terms can
provide adequate notice of prohibited conduct when there is a commonsense
understanding of what activities the categories encompass.”); United States v.
Gallo, 20 F.3d 7, 12 (1st Cir. 1994) (“[T]hough a probationer is entitled to notice of
what behavior will result in a violation, so that he may guide his actions
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accordingly, fair warning is not to be confused with the fullest, or most
pertinacious, warning imaginable. Conditions of probation do not have to be cast
in letters six feet high, or to describe every possible permutation, or to spell out
every last, self-evident detail.”) We hold that the district court did not abuse its
discretion.
IV. CONCLUSION
Because the special conditions imposed by the district court are reasonably
related to factors set forth in 18 U.S.C. § 3553(a), and because the special
conditions do not impinge upon Taylor’s constitutional rights, we find that the
district court did not abuse its discretion by imposing the special conditions of
supervised release.
AFFIRMED.
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