Sunday, May 15, 2016

Case o' The Week: LaCoste Riposte - Conditions of Supervised Release

  Barred from the internet, barred from four counties – all for security fraud?  
  Probation didn’t ask for these conditions of supervised release – and the government didn’t suggest them.
  The Ninth, turns out, isn’t keen on them either.   
United States v. LaCoste, 2016 WL 2754736 (9th Cir. 2016), decision available here.

Players:  Decision by Judge Watford, joined by Judge Berzon and Sr. DJ
Hon. Judge Paul Watford

Facts: After misleading investors on the solvency of real estate projects, LaCoste pleaded guilty to securities fraud. Id. at *1. One victim complained of internet rants against her and her husband; she suspected LaCoste. Id. Other victims’ comments suggested LaCoste’s criminal conduct had caused “significant financial and emotional strife among residents of Albany, Oregon, the community in which LaCoste lived.” Id. As a condition of supervision, the court prohibited internet access without the prior approval of Probation. Id. The court also prohibited LaCoste from living in four counties (stressing LaCoste shouldn’t return to Albany.) Id. The court opined this would give the community “a chance to heal.” Id. at *2.

Issue(s): “LaCoste challenges both the Internet-use restriction and the residency restriction. Neither of those supervised release conditions had been recommended in the Presentence Report or suggested by the government, so the district court's remarks at sentencing provide the only explanation for why the conditions might be warranted. LaCoste's lawyer objected to the residency restriction but not to the Internet-use restriction.” Id. at *2.

Held:We address the Internet-use restriction first. Because LaCoste failed to object . . . plain error review applies. . . . We conclude that relief is warranted under this standard.” Id. at *2. “Even if the district court could impose a supervised release condition prohibiting such conduct here, the condition it actually imposed sweeps far more broadly. The court prohibited LaCoste from making any use of the Internet without first getting his probation officer's approval. In our view, that condition involves a greater deprivation of liberty than is reasonably necessary to address the district court’s concerns. . . . . Cutting off all access to the Internet constrains a defendant's freedom in ways that make it difficult to participate fully in society and the economy.” Id. at *3.

  “We turn next to the supervised release condition barring LaCoste from residing in (four) counties. . . . We conclude that this condition, too, must be vacated.” Id. at *4. “[T]he court did not adequately explain the basis for its view. Simply declaring that a defendant is likely to resume a life of crime if he returns to a given area is not enough, unless the reasons are obvious from the record. . . . Here they are not.” Id. at *5.

Of Note: Does the First Amendment protect a defendant’s right to disparage victims? Interesting question, avoided in LaCoste. Id. at *3. The parties didn’t raise it – intriguing that the Court flagged it here.

How to Use: “With Probation approval” ain’t the fix. “Imposing a total ban and transferring open-ended discretion to the probation officer to authorize needed exceptions is not a permissible alternative.” Id. at *4. Use LaCoste to fight “P.O. supervision” as an attempt to salvage overbroad conditions of supervised release.
For Further Reading: SFPD Officer Nicholas Buckley, Badge / Star Number 528, testified with great sincerity at the suppression hearing. He explained that a dice game and our client’s suspicious and evasive behavior provided the basis for a Tenderloin stop. Officer Buckley sailed through cross unscathed, credibly demonstrating how Mr. Simpson walked; illustrating precisely how Mr. Simpson held his hands before the stop. When asked, the officer carefully marked the locations of various events on a map.
  And then?
  And then AFPD Ellen Leonida turned to the surveillance video, obtained by our comrades at the SF Public Defender’s office before the case went federal.
Hon. District Judge Charles R. Breyer
As noted by Judge Breyer, the video contracted Officer Buckley’s testimony as to every pertinent fact.
  The USAO was given an opportunity for – reflection – by the Court, and quickly dismissed the indictment. 
  Judge Breyer then delivered an extraordinary soliloquy on the integrity expected from law enforcement, and the ramifications of Buckley’s testimony for our confidence in criminal convictions. Police body-cams, Judge Breyer now concludes, are a necessity.
  His Honor was not enraged by the day’s events. Instead, he confessed that he was “deeply saddened” -- a profoundly moving courtroom moment, from a respected and experienced jurist.
   What next? Will Officer Buckley be prosecuted in federal court for perjury? How many Buckley convictions at the Hall of Justice, and at 450 Golden Gate, are now vulnerable? What are the broader ramifications for the SFPD?
   Developments await.
  See ABC article here ; see also SF Chronicle Article here 

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


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