Appeal from the United States District Court for the District of Columbia (No. 01cr00239-01)
Before: Edwards, Garland, and Roberts, Circuit Judges.
The opinion of the court was delivered by: Roberts, Circuit Judge
David Christian Stanfield appeals from the district court's revocation of his probation and imposition of a special condition of supervised release limiting his use of the internet. He argues that the probation revocation hearing was tainted by vindictiveness on the part of the district court and by several procedural violations, including a ruling that certain documents were not producible to the defense under Federal Rule of Criminal Procedure 26.2, a failure to provide adequate time for defense counsel to review the documents that were produced at the hearing, and a time limitation on the cross-examination of a government witness. Stanfield further contends that the internet restriction is so broad and vague that it contravenes both the First Amendment and relevant statutory guidelines. We find that most of these claims lack merit, but remand to the district court for clarification of the internet restriction and a more considered determination of whether the documents held not to be producible should in fact have been produced.
Stanfield was sentenced to five years probation in December 2002, following a plea of guilty to charges of identity theft, conspiracy to distribute methamphetamine, and transferral of a false identification document in furtherance of a drug trafficking crime. The district court imposed a set of standard conditions of probation, including requirements that Stanfield work regularly and notify his probation officer at least ten days prior to any change in employment status. In addition to the standard conditions, the court imposed a number of special conditions: Stanfield was required to participate in a mental health evaluation and obtain mental health treatment, required to submit to periodic drug testing, prohibited from working at a job affording access to customer information such as social security numbers and birth dates, and barred from using the internet "in any way, shape, or form until further order of the Court." The latter two conditions were a response to Stanfield's history of identity theft, although it was conceded that he had not used the internet in the commission of those crimes.
In imposing the five-year probation term, the district court departed downward from the sentence that Stanfield faced under the Sentencing Guidelines -- a prison term of fifty-seven to seventy-one months. The significant downward departure was an acknowledgment of Stanfield's substantial assistance in the investigation of the drug conspiracy in which he had been involved. At the sentencing hearing, however, the court warned Stanfield that it would carefully monitor his compliance with the terms of his probation: "[A]ny problems at all and I will hold you accountable, and if I find that you are at fault, I will revoke your probation and impose a period of incarceration. You are so warned." Sentencing Hr'g (Dec. 17, 2002), quoted in Violation Sentencing Hr'g Tr. (Aug. 25, 2003), at 13 (Sentencing Tr.).
In April 2003, the district court became aware that Stanfield had apparently been using the internet in violation of the conditions of his probation -- specifically by posting on a website poetry and e-mail addresses through which he could be reached. See Letter from Edward Shaw, U.S. Probation Officer, to Stanfield (Apr. 14, 2003). The court alerted the probation office, which wrote Stanfield that "the court directs you to remove the website and to cancel the e-mail addresses." Id. On April 23, Stanfield filed a motion for clarification of the internet restriction; two days later, the district court ordered that a previously scheduled probation progress hearing be converted to a hearing on violation and asked the probation office to prepare a violation report.
In the probation office's report and at the hearing, held on May 15, 2003, evidence emerged that Stanfield's compliance with the terms of his probation had been mixed. With respect to the employment condition, the record showed that he had worked for only one full day since the December 2002 sentencing. Apparently chafing at the limited range of jobs available to him under the terms of his probation, he had told both his probation officer and a mental health counselor that he refused to take a job "flipping burgers." See Tr. of Hr'g on Violation (May 15, 2003), at 25, 61 (HOV Tr.); Mem. from Sharon Davis, Frayser Family Counseling Center, to Shaw (Apr. 28, 2003), at 2 (Davis Memo).*fn1 Probation Officer Edward Shaw later testified that Stanfield had applied to only a few of the approximately twenty employment agencies in the Memphis, Tennessee area where Stanfield had been permitted to serve his probation. See HOV Tr. at 25, 61-62. Shaw also testified that Stanfield had violated one of the conditions of his probation by failing to tell Shaw in advance about a one-day temporary job that he took in February 2003. Id. at 24. The evidence on Stanfield's efforts to gain employment was not entirely negative, however: a number of faxes and logs showed that he had been searching for work, see id. at 63-65, and Shaw testified that on two occasions Stanfield received offers for substitute teaching jobs that were later revoked when the employers learned that Stanfield was on probation, id. at 24.
Other evidence at the hearing related to Stanfield's compliance with his obligation to receive mental health counseling. Under a treatment plan dated February 26, 2003, which Stanfield had signed, he was obligated to attend weekly group therapy sessions at the Frayser Family Counseling Center and biweekly intensive therapy sessions one-on-one with Sharon Davis, a counselor at the center. No staff members from the center testified at the hearing; although the court had issued a subpoena (at Stanfield's request) for the testimony of Seth McCaskill, a counselor who led the group therapy sessions, McCaskill received the subpoena just one day before the hearing and was unable to travel from Memphis on such short notice. HOV Tr. at 2-3. The evidence on Stanfield's compliance with this condition thus came primarily from Probation Officer Shaw, who testified about information he received from Davis. Over the defense's objection on doublehearsay grounds, Shaw testified that Davis had told him what McCaskill had told her about Stanfield's allegedly disruptive behavior at one of the group therapy sessions. Id. at 14-16. Shaw then stated that Davis had notified him on April 21, 2003 that Stanfield "had not yet ever presented himself to her" for the biweekly individual counseling sessions. Id. at 16. Later that day, Stanfield went to the center and met with Davis. According to Davis's account of the meeting, Stanfield became "defensive" when reminded of his obligation to meet with her for individual sessions, and "began escalating" to the point where she ended the discussion and asked him to leave. Letter from Davis to Shaw (Apr. 22, 2003). One week later, Davis sent a memorandum to Shaw with a more detailed description of what had transpired during the meeting, stating that "[t]he more I attempted to advise Mr. Stanfield [about] his requirements of treatment, the more verbally defiant he became." Davis Memo at 2. The memorandum formally notified Shaw that Stanfield's treatment at the center had been terminated. Id. at 3.
The final subject of testimony at the hearing was Stanfield's obligation to submit to random drug testing. Shaw testified that Stanfield failed to appear for a drug test on March 13, 2003 -- apparently because Stanfield did not call the probation office as required each evening to hear a recording with instructions on whether a drug test would be held the next day. See HOV Tr. at 9-11, 41-42; Letter from Shaw to Stanfield (Feb. 24, 2003) (instructions for drug screening). On the morning of March 14, Shaw explained, Stanfield called in dismay at having missed the drug screen the previous day; he came in later on the 14th and tested negative for illegal drugs. HOV Tr. at 11.
At the end of Shaw's direct testimony, Stanfield's counsel moved for production of his statements pursuant to Federal Rule of Criminal Procedure 26.2, which is analogous to the Jencks Act, 18 U.S.C. § 3500, see FED. R. CRIM. P. 26.2 Advisory Committee note (1979) (Rule "place[s] in the criminal rules the substance of" the Jencks Act). Rule 26.2(a) provides that after a witness has testified, the opposing party may move the court to order the party who called the witness to turn over "any statement of the witness that is in their possession and that relates to the subject matter of the witness's testimony." Shaw gave to Stanfield's counsel what she described at the time as "a very thick stack of papers," HOV Tr. at 31, and later described as "a stack of paper between one and two inches high," Appellant Br. at 22. Stanfield's counsel (assisted by co-counsel) was then given a total of nine minutes to review the papers. HOV Tr. at 31-32. At the end of that time, counsel stated that she "ha[d] not had sufficient time to review" the documents, which were "voluminous" and "essential to the issues before the court." Id. at 32. The court nonetheless ordered counsel to begin the cross-examination of Shaw, stating that because the direct examination had taken twenty-two minutes, the crossexamination would be limited to the same amount of time. Id. at 32-33. The court eventually allowed the crossexamination to run longer, see id. at 52, but admonished counsel to "[f]inish up," id. at 56, 63; see also id. at 58 (counsel apologizing for interrupting the witness, stating "I am a little conscious of the time."). At the end of the crossexamination, counsel stated, "I have nothing further, Your Honor, although I would like briefly to restate for the record that I feel that without having had sufficient time to review all the papers that my cross-examination was not as effective and [a]s wide-ranging as it should have been and could have been." Id. at 65.
Only three of the conditions of Stanfield's probation -- the employment condition, the mental health treatment condition, and the drug screening requirement -- were addressed at the May 15 hearing, despite the pendency of Stanfield's motion to clarify the internet condition. See id. at 2.*fn2 The district court concluded that the evidence of Stanfield's noncompliance with the employment condition was "more or less in equipoise except with respect to this requirement that he report in advance employment that he secures." Id. at 123. With respect to the mental health counseling, the court found that Stanfield "most assuredly did not comply with this condition and he is in violation of this and it is willful," id. at 122; regarding the drug screening requirement, the court concluded that Stanfield's failure to comply with the March 13 drug screen was not willful, id. at 120. In a subsequent hearing, the court revoked Stanfield's probation based on the violations of the employment and mental health counseling conditions, emphasizing that this action was "not predicated on any one violation" and that "the presence or the absence of any one would not materially influence" the court's decision. Sentencing Tr. at 10. The court sentenced Stanfield to nine months in prison, and specified a series of conditions that would govern his subsequent release, including a revised restriction on his use of the internet. The court imposed the revised internet restriction without providing notice to or hearing argument from the defendant. Id. at 2, 15-18.
We begin with Stanfield's challenge to the internet condition that will apply during his supervised release. The revised condition states:
The defendant's use of the internet is limited as follows:
a) The defendant may use the internet as any employer legally directs, so long as he has no access to personal information including bank account numbers, credit card numbers, social security numbers and birth dates.
b) The defendant may not view and use internet sites that provide personal information as ...