Release order prohibiting possession of computer violated without evidence of actual use – Fourth Circuit – Unpublished

4,898 Comments / By Brandon J. Huffman / February 10, 2016 February 10, 2016 / Fourth Circuit

US v. Cook. – Unpublished.

Cook pleaded guilty to travel with intent to engage in illicit sexual conduct. Following his imprisonment, he was subject to ten years of supervised release. The terms of that release included:

7. The defendant shall not possess or use a computer to access any online computer services at any location, including employment, without the prior approval of the probation officer. This includes any internet service providers, bulletin board systems, or any other public or private computer network. However, if the Court determines that the defendant should be allowed access to a computer and/or the Internet, it is recommended that the defendant comply with the requirements of the Computer Monitoring Program as administered by the Probation Office. The defendant shall consent to the installation of computer monitoring software on any computer to which the defendant has access.

He also signed a Computer & Internet Monitoring Program Participant Agreement, agreeing “not possess or permit another individual to bring or possess an unauthorized computer in my home.”

It should be no surprise, then, that when he was found with computers and an iPhone in his home, his probation was revoked.

On appeal, he tried to argue that the district court failed to find that he actually possessed or used the computer, or did so to access the internet. The Court rejected this argument, finding that the condition clearly stated that he could not possess the devices – use was not required.

He also tried to argue that the district court erred by referencing the Monitoring Agreement, which was not part of Condition 7, and by “impermissibly delegate[ing]” authority to the probation officer. The Court was unconvinced, concluding that this was well within the authority of the conditions of release.

His best argument (and I say best with a raised eyebrow), was that the district court erred because the devices could not give him access the internet. In one case, the computer was not connected. In the case of the iPhone, he did not have the password. The Circuit Court was more swayed by the fact that the “district court specifically discredited both witness’ testimony” and “Credibility determinations are not subject to review. United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989).”

The moral of the story: if you get out of prison but only on the condition that you not possess a device capable of accessing the internet, it would be best not to get a new iPhone or have multiple computers in your home.

Brandon J. Huffman

Brandon is the founder of Odin Law and Media. His law practice focuses on transactions and video games, digital media, entertainment and internet related issues. He serves as general counsel to the International Game Developers Association and is an active member of many bar associations and community organizations. He can be reached at brandon at odin law dot com.