Sunday, March 09, 2014

Case o' The Week: If At First You Don't Succeed, Try, Try Again (if you're a P.O. or AUSA) - Post-prison modifications of supervised release

Sentencing is, of course, final. Absent changed conditions, there’s no going back after the jail sentence is done, to get a second bite of the apple and tinker with the terms of supervised release.
  Unless you are the government.
  Or Probation.
  Or both.
United States v. Bainbridge, 2014 WL 878832 (9th Cir. Mar. 6, 2014), decision available here.

Players: Decision by Judge Bea, joined by Justice (Ret.) O’Connor and Judge Tallman. Hard-fought appeal by D. W. Wa. & Idaho Ass’t Federal Defender Matthew Campbell.

Facts: After being convicted for Assault with Intent to Kidnap, Bainbridge was sentenced to 97 months of custody and three years of supervised release. Id. at *1. There were bad facts, involving the rape of a disabled woman in a motor home. Id. 
  Bainbridge served his term, and Probation then petitioned to modify his conditions of supervised release. Id. The government then filed a motion compelling Bainbridge to undergo a sexual deviancy evaluation, to determine whether Probation’s requested conditions were necessary. Id. The district court granted the government’s motion, over the defense objection that the court lacked jurisdiction to change conditions of supervised release absent a change of circumstances and that the changed conditions were unreasonable. Id.

Issue(s): “This case presents two questions: can a district court impose a sexual deviancy evaluation as a condition of supervised release when deviant sexual conduct was not an element of the underlying crime of conviction? If so, is it essential the Government prove a change in circumstances since the original supervised release conditions were imposed, to justify such an additional condition?” Id. at *1.

Held: “We hold that in the circumstances of this case, the sexual deviancy evaluation can be so imposed, without proof of a change in such circumstances.” Id.

Of Note: This is a disappointing and dangerous decision. On appeal, Bainbridge argued that Federal Rule of Criminal Procedure 32.1(c) did not provide the district with jurisdiction to modify the conditions of supervision absent changed circumstances. Id. at *3. NOTE that there was no violation alleged: the Probation office (and the government, riding the P.O.’s coattails), just thought that sexual deviancy evaluation (and forced psych counseling, and polygraph tests) would be a good idea. Id. at *2.
  Does this mean that the government and the Probation Office can forget to add conditions at sentencing, and get a second bite at the supervised release apple later – even with no violation or changed condition? Yep: while “it may be inefficient to omit important conditions and later, upon further reflection, petition the court to incorporate such conditions, the relevant statutes and rules do not prohibit such practice.” Id. at *5 (internal quotations and citation omitted).

How to Use: Does the “law of the case” doctrine prevent a district court from flip-flopping and adding conditions later after release from custody, when no circumstances have changed? 
  It didn’t here. Id. at *5 & n.8. 
  Note, however, that Judge Bea repeatedly notes that the sentencing court in Bainbridge didn’t impose these sex offender conditions at sentencing, but explicitly left it open at sentencing for the Probation Office to return and seek modifications at a later time if additional conditions are something that “needs to be addressed.” Id. “In such circumstances” the law of the case doctrine doesn’t preclude the new conditions – but worth litigating whether the doctrine would preclude these modifications if the sentencing court hadn’t left this door open.
For Further Reading: What do Senator Rand Paul (and reportedly half the Senate’s Republicans) and Attorney General Eric Holder have in common? They’re fed up with federal mandatory minimum sentencing laws and are itching for reform. For a great piece on an unexpected bipartisan alliance (with discussion of good legislation to come), see Matt Apuzzo, Holder and Republicans Unite to Soften Sentencing Laws, New York Times, Mar. 3, 2014, available here.

Image of “second bite of the apple” album cover from
Image of Attorney General Holder and Senator Rand Paul from

Steven Kalar, Federal Public Defender N.D. Cal. Website at

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