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Third Circuit Vacates Lifetime Computer/Internet Ban

The Third Circuit Court of Appeals vacated sex offender special conditions of supervised release because they were not narrowly tailored or consistent with the factors of 18 USC § 3553(a).

Pennsylvania resident Daniel Voelker engaged in an online “chat” with Wyndell Williams. During the chat, Voelker exposed his three-year-old daughter’s bare buttock over a webcam connected to his computer. The chat was monitored by FBI agents who paid Voelker a visit.

He admitted to downloading child pornography and to exposing his daughter over the webcam. He claimed, however, “that statements he…made about sexual contact with minors or offering his daughter for sex were merely gratuitous statements in the nature of ‘role-playing.’ He claimed that he never intended to follow through on any of those statements but admitted that he engaged in such online ‘role-playing’ on a daily basis.”

Voelker pled guilty to receiving child pornography and was sentenced to 27 months in prison followed by a lifetime term of supervised release prohibiting: computer and internet access; possession of sexually explicit materials; and associating with children under 18 years of age.

The Third Circuit agreed that an absolute lifetime ban on computer and internet access, “with no exceptions for employment or education, involves a greater deprivation of liberty than is reasonably necessary and is not reasonably related to the factors set forth in 18 U.S.C. § 3583.” The Court was prevented from determining if the requisite “careful and sensitive individualized assessment” was undertaken, due to the lower court’s failure to “explain its reasons for imposing such an unprecedented and sweeping lifetime restriction.”

The Court found that “the condition is the antithesis of a ‘narrowly tailored’ sanction.” It had “never approved such an all-encompassing, severe, and permanent restriction, and nothing on this record inspires confidence in the propriety of doing so now.” The Court equated the ban to “unconstitutional banishment” and noted that it could not find any similar ban in any appellate decisions. While some computer and internet restriction may be acceptable, it must comport with 18 USC § 3583(d)(2) and “the court must…consider the First Amendment implications of any such restriction.”

The Court vacated the sexually explicit material condition, in part, “because it includes legal pornography depicting individuals who are clearly not minors.” It vacated the prohibition against contact with minors as well. While not expressing “any opinion about the legality of a condition that so drastically interferes with one’s right to associate with one’s children,” the Court cautioned that any such lifetime ban “should be supported by sufficient evidence to resolve the dispute over whether Voelker was simply role-playing.” It also recommended “expert testimony…to better resolve the dispute about Voelker’s potential threat to children, particularly his own children.”

“It is indeed unfortunate that we have had to review a sentence that mirrors one that this same judge previously imposed that we had to vacate not once, but twice,” declared the Court. See, e.g., United States v. Loy, 191 F.3d 360 (3rd Cir. 1999), and United States v. Loy, 237 F.3d 251 (3rd Cir. 2001). “We would have hoped that the judge would have realized the need for even greater care in ensuring the proper nexus between sentence, offense, and offender given the lifetime duration of the conditions imposed. Yet, it appears that this sentence was imposed with no more analysis, support, or explanation than was the case in Loy.” See: United States v. Voelker, 489 F.3d 139 (3rd Cir. 2007).

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Related legal case

United States v. Voelker