In United States v. Birkedahl, 19-2304, the Second Circuit (Sullivan, Park, Nardini) rejected Defendant-Appellant Eric Birkedahl's challenges to the conditions of his supervised release imposed subsequent to his conviction for possession of child pornography. Birkedahl pleaded guilty in the United States District Court for the Western District of New York to one count of possession of child pornography. He was sentenced principally to 24 months' imprisonment, to be followed by a supervised release period of five years. Among the conditions of supervised released imposed by the district court were: (1) participation in a sex offender treatment program; (2) submission to computerized voice stress analyzer ("CVSA") testing or, alternatively, polygraph testing, to ensure compliance with the conditions of supervised release, referred to as the "verification testing condition"; and (3) a so-called "risk condition," standard in the Western District of New York, whereby Birkedahl could be required to notify members of the public that he posed a risk to them. Birkedahl objected to the imposition of each at the time of sentencing, and challenged on appeal the district court's imposition of each. He did not appeal his term of incarceration, which was a below-the-range sentence.
With respect to the sex offender treatment condition, Birkedahl argued that the component of the condition directing that "[t]he probation officer . . . supervise the details of the defendant's participation in the program, including the selection of a provider and schedule" afforded the Probation Department too much discretion in its supervision. In rejecting the challenge, the Second Circuit explained that under its recent precedent, while "a district court may not delegate to the Probation Department decision making authority which would make a defendant's liberty itself contingent on a probation officer's exercise of discretion," it may delegate "certain minor details of supervised release," including "the selection of a therapy provider or treatment schedule." (Slip Op. at 8–9). The delegation by the district court in Birkedahl's case fell squarely in the latter category of permissible delegations, held the Second Circuit, despite its use of the word "including," which could not be read as conveying impermissibly broad discretion.
In challenging the verification testing condition, Birkedahl conceded (in accordance with Circuit precedent) the district court's authority to impose such a verification condition, and claimed only that CVSA should not have been imposed as an alternative to polygraph testing because CVSA is not a sufficiently reliable indicator of whether someone is telling the truth. Birkedahl submitted scientific studies undermining the efficacy of CVSA to the district court in support of his argument. The Second Circuit avoided the issue and held that Birkedahl's challenge was not ripe for review because CVSA technology could change between now and Birkedahl's release approximately one year from now, and dismissed his appeal on this issue.
Following the Second Circuit's recent decision in United States v. Traficante, 966 F.3d 99 (2d Cir. 2020), the panel also dismissed as unripe Birkedahl's improper delegation challenge to the risk condition. The risk condition provides, in relevant part, that "if the court determines that, based on Birkedahl's criminal record, personal history and characteristics, and the nature and circumstances of his offense, he presents a risk of committing further crimes against another person, the probation officer may require Birkedahl to notify the person about the risk and may confirm compliance." (Slip Op. at 17 (alterations omitted)). Quoting Traficante, the Circuit held because any allegedly improper delegation to probation "is conditioned on the district court finding . . . that he poses a risk of committing further crimes against another person," and such a finding is "a contingency that may never occur," the challenge was unripe. (Slip Op. at 17).
The Second Circuit broke little new ground in this opinion. Each of the three aspects of the decision seems to be compelled by precedent. It seems possible and perhaps likely that each challenged condition will be the subject of litigation in the district court after the defendant is discharged from prison and placed on supervised release. Once the CVSA issue is ripe for review, it is reasonable to expect a challenge to make its way back to the Second Circuit. The delay is unfortunate for the defendant in that he has court-appointed counsel now, on direct appeal, who can litigate these issues for him at no charge. After his release from prison, he will have no such entitlement and will need to litigate these issue pro se (unless he violates a condition of release, in which case he will have a lawyer appointed).
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