Yesterday, in United States v. Bari, 2010 WL 1006555 (2d Cir., March 27, 2010), the Second Circuit held that in the context of a supervised release revocation hearing, where relaxed rules of evidence apply, it was not reversible error for a judge to employ an Internet search to confirm a reasonable intuition on a matter of common knowledge.  Importantly, the Court did not hold that the opposite is true – that facts gleaned from an Internet search may be treated as common knowledge (because if that’s the case, there’s life on Mars, intelligent design is a valid scientific theory, and Elvis is still alive . . .). 

Facts

Bari, a convicted bank robber, was charged with violating the terms of his supervised release by committing another bank robbery.  At a hearing on the violation, the district judge noted the strong circumstantial case against Bari – “too many coincidences” that supported his conclusion that Bari had indeed robbed another bank, including the yellow rain hat found in Bari’s landlord’s basement that looked awfully like the hat worn by the bank robber in surveillance video tapes.  He pointed out that there are “lots of different yellow rain hats that one can buy,” something he confirmed with a simple Google search. 

On appeal, Bari argued that the court violated Fed.R.Evid. 605 – which prohibits a judge from testifying as a witness at a trial – “by conducting its own Internet search and relying on the results of that search in making its decision to revoke Bari’s supervised release.”

Holding

First, the Court held that “the Federal Rules of Evidence do not apply with their normal force in supervised release revocation proceedings . . . so long as [the judges’] findings are based on ‘verifed facts’ and ‘accurate knowledge.’”

Second, the Court held that the availability of many different types of yellow rain hats was a “matter of common knowledge” of which the district court could take judicial notice under Fed.R.Evid. 201 - “[t]he District Court’s independent Internet search served only to confirm this common sense supposition.”  The fact that the judge chose to confirm his intuition with an easy Internet search, rather than rely solely on his common sense, was thus incidental.  The dispositive issue was that the fact being confirmed was already one of common knowledge. 

Comment

The reason why the Google search was useful in this particular case – confirming the district judge’s reasonable intuition, which on its own, passed muster under Fed.R.Evid. 201 – is why courts should be suspicious of them in general.  Google is the perfect enabler of confirmation bias – the tendency to notice data that supports our beliefs and ignore the data that doesn’t – and since our intuitions are not always reasonable or accurate, reliance on Google searches as an investigatory tool should generally be met with skepticism.

Lawyers: David Hammer (defendant); AUSA Peter Skinner

Early release under the provisions of 18 U.S.C. 3621 (e) for successful completion of RDAP remains an incentive as well, but has been significantly changed by P.S. 5331-02.  Whereas offenders who previously completed RDAP and were otherwise eligible for early release were eligible for a sentence reduction of up to 12 months, this new policy substantially reduces the eligibility timeframe for some offenders.  Specifically, only those eligible inmates serving 37 months or more will now be eligible for up to a 12 month early release, while those serving 31-36 months will be eligible for only up to a 9 month sentence reduction, and those serving less than 31 months will be eligible for no more than a 6 month sentence reduction.  The authority in determining some eligibility factors for early release, for example whether prior offenses or the current offense might preclude early release, is now shifted from the B.O.P. institutions and Regional Offices to the Designation and Sentence Computation Center (DSCC) in Texas.  Noteworthy, for the first time, is that certain sex offenders, e.g., possessors of child pornography are not automatically disqualified from early release eligibility.  See also P.S. 5162.05 (Categorization of Offenses).

As the Supreme Court pointed out in Gall v. United States, 28 S.Ct. 586, 595 (2007), probation is no cake walk (probationers are “subject to several standard conditions that substantially restrict their liberty”).  So Harold Rentas got an early holiday gift when SDNY Judge Marrero granted his request in United States v. Rentas, 01 cr 288, 2008 WL 4033512 (S.D.N.Y. August 25, 2008), for termination of his supervised release twenty months early.  It helped that the probation department did not object and the prosecutor took no position, but most persuasive were the facts that while on release, Rentas had maintained steady employment, married, successfully completed outpatient drug treatment, never testified positive for drugs, never been arrested and complied in full with all of his probation officer’s directions.  In short, the court concluded “Rentas’s exemplary law-abiding behavior demonstrates ‘changed circumstances’ that warrant a reduction of the terms of supervised release.” 

The case is a welcome antidote to the otherwise remarkably punitive trend in federal sentencing, and of course, may be cited as a precedent for a non-custodial sentence in cases where the defendant has adhered to extraordinarily law-abiding behavior post-arrest. 

All defense lawyers have experienced a client wresting victory from the jaws of defeat with their heartfelt words at sentencing (and vice versa).  Now, in United States v. Gonzalez, 07-4824-cr, 2008 WL 2357234 (2d Cir. June 11, 2008), the Second Circuit has held, overruling prior precedent, that the defendant's right under Rule 32 to address the sentencing court and save his butt or shoot himself in the foot prior to the imposition of sentence is absolute, and cannot be given effect after the sentence has been imposed.

As Judge Newman, writing for the Court, sensibly points out:  "Whatever the value of sentencing allocution, neither a defendant nor observers in the courtroom are likely to believe that an opportunity to try to talk a judge out of a sentence already imposed is as effective as an opportunity to speak before a sentence has been imposed."

Thus, the sentence of Gonzalez - and any defendant going forward who is similarly denied an opportunity at presentence allocution - is vacated and a new sentencing proceeding must be held in accordance with Rule 32. 

The Court also vacated the sentence for the judge's failure to explain his reasons for departing above the applicable guideline range.  Here, the district court had sentenced a defendant on supervised release to two years, more than double the ten-month high end of the applicable range for the supervised release violation.  The Court criticized the brevity of the reasons given for the departure, noting that it was unclear if the sentencing court considered the  Sentencing Commission's policy statement concerning violation of supervised release that "the court should sanction primarily the defendant's breach of trust, while taking into account, to a limited degree, the seriousness of the underlying violation and the criminal history of the violator.”

Illustrating the complexity of striking a balance between liberty interests and public protection in sex offender cases, an EDNY judge imposed a series of restrictive supervised release conditions on a defendant convicted of possession of child pornography in United States v. Porter, 03 CR 129 (CPS), 2008 WL 117839 (E.D.N.Y. January 3, 2008).  They included mental health treatment with polygraph testing, a limit of one personal Internet-capable device, a ban on associating with children under the age of 18, and monitoring through a GPS device and undercover surveillance.

The controversial condition of polygraph testing as a component of sex offender mental health treatment had been approved by the Second Circuit in United States v. Johnson, 446 F.3d 272 (2d Cir. 2006), a case involving someone convicted of sexual predation of minors.  The Johnson court concluded that polygraph testing would help "penetrate deception and encourage an offender to confront his own motivations and behaviors," an observation quoted with approval in Porter.  Neither the Johnson nor Porter courts found a Fifth Amendment problem with the condition, "because [the defendant] can challenge the use of any incriminating statements made during the course of the polygraph examination in any court proceeding."  But having the option to challenge the use of the statements does not mean the challenge will automatically be successful, and neither court addresses the potential success of a challenge to derivative use of such statements or their use in the context of a civil commitment proceeding, where the standard of admission would be lower than in a criminal one.  Moreover, many psychologists would condemn as counter-productive an effort to police the therapeutic process in such an intrusive, minute and unreliable fashion.  While both the Johnson and Porter courts purport to view the polygraph testing as an aid to mental health treatment, in reality, it is less about promoting therapy than keeping tabs.
 
Also of interest in this decision is the court's handling of the Internet access issue.  The defendant would be limited to accessing the Internet through one Internet capable device, loaded with filtering software.  Until Porter acquired such a device, however, the court permitted him to access the Internet at the public library, upon 24 hours notice to his probation officer, and subject to undercover surveillance and a prohibition on disabling the filtering software on the library terminal.  Noting that "the software results in a degree of 'underblocking,'" the court nonetheless held that "accessing the Internet at a public library still provides a controlled environment in which Porter will be least likely to access pornography."

It bears noting that this case involved a violation of supervised release, and a particularly non-compliant supervisee.  The restrictions in the case, therefore, represent a painstaking effort to avoid punishing the defendant with additional incarceration (he was given a four-month prison sentence on the violation out of a maximum two years, and a recommended guideline range of three to nine months), but at the same time diminishing the inclination and opportunities for recidivism.  Porter's (and indeed, Johnson's) non-compliance are strong grounds to oppose the imposition of polygraph testing and GPS monitoring as a matter of routine in sex offender cases.