17-2641-cr
United States v. Adams

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                           SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT
ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
12th day of September, two thousand eighteen.

Present:
            DEBRA ANN LIVINGSTON,
            DENNY CHIN,
                  Circuit Judges,
            KATHERINE POLK FAILLA,
                  District Judge.*
_____________________________________

UNITED STATES OF AMERICA,

                          Appellee,

                 v.                                                             17-2641-cr

BRIAN ADAMS, also known as Bryan Adams,

                  Defendant-Appellant.
_____________________________________

For Defendant-Appellant:                          Norman Trabulus, New York, NY.

For Appellee:                                     Amy Busa, Michael P. Robotti, and Hiral D. Mehta,
                                                  Assistant United States Attorneys, for Richard P.
                                                  Donoghue, United States Attorney for the Eastern
                                                  District of New York, Brooklyn, NY.

*
  Judge Katherine Polk Failla, of the United States District Court for the Southern District of New York, sitting by
designation.


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         Appeal from an August 14, 2017 judgment of the United States District Court for the

Eastern District of New York (Weinstein, J.).

         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

         Brian Adams (“Adams”) appeals from a judgment of the United States District Court for

the Eastern District of New York, following his guilty plea to four counts of a seventeen-count

superseding indictment charging him with, inter alia, sex trafficking of children. The district court

sentenced Adams principally to a total of 15 years in prison followed by a total of 10 years of

supervised release. The district court also imposed several conditions on Adams’s supervised

release; Adams challenges two of those conditions on appeal. We assume the parties’ familiarity

with the underlying facts, the procedural history of the case, and the issues on appeal.

         We first address Adams’s challenge to the district court’s condition of supervised release

that he may not “view[], own[], and possess[] any obscene, pornographic or sexual[ly] stimulating,

visual or auditory material.” App’x at 86. Because Adams did not object to this condition below,

we review his claim for plain error. See Fed. R. Crim. P. 52(b); United States v. Dupes, 513 F.3d

338, 343 (2d Cir. 2008).1 “A finding of ‘plain error’ requires that (1) there is an error; (2) the error

is clear or obvious, rather than subject to reasonable dispute; (3) the error affected the appellant’s

substantial rights, which in the ordinary case means it affected the outcome of the district court




1
  We decline Adams’s invitation to apply a “relaxed” plain error standard of review. We have previously applied such
a “relaxed” standard in cases where a defendant lacked “a sufficient opportunity to raise a contemporaneous objection”
to a condition of supervised release. United States v. Matta, 777 F.3d 116, 121–22 (2d Cir. 2015). Here, however,
Adams had ample opportunity to object to this condition during his two-day sentencing hearing. In fact, during the
hearing, Adams voiced opposition to a different condition of supervised release, and upon being asked the following
day after imposition of the conditions whether Adams wanted to “add anything,” Adams did not use the opportunity
to object to the condition that he is now challenging. See App’x at 126–28. We therefore see no reason to “relax” our
plain error review here.


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proceedings; and (4) the error seriously affects the fairness, integrity or public reputation of judicial

proceedings.” United States v. Alvarado, 720 F.3d 153, 157 (2d Cir. 2013) (per curiam) (quoting

United States v. Marcus, 560 U.S. 258, 262 (2010)). Adams suggests that the district court’s

imposition of this condition was reversible error for two reasons; we reject both.

        First, Adams argues that the district court failed to provide an adequate explanation for

why this condition is reasonably related to the statutory sentencing factors and is consistent with

the relevant Sentencing Commission policy statements. Even assuming arguendo that Adams is

correct that the district court failed to provide an adequate explanation, however, any such alleged

error is harmless. The explanation for such a condition “is self-evident in the record”—i.e., the

condition was a part of Adams’s mental health treatment plan that he himself had requested, and

Adams acted in a sexually deviant manner towards both minors and adults—and “the condition[]

meet[s] the purposes of supervised release” by furthering the goal of rehabilitation. See United

States v. Balon, 384 F.3d 38, 41 n.1 (2d Cir. 2004). We therefore decline to vacate Adams’s

condition of supervised release on this basis. See id.; see also United States v. Simmons, 343 F.3d

72, 82–83 (2d Cir. 2003) (upholding a district court’s decision to impose a condition of supervised

release that prohibited “pornography generally, not only . . . child pornography”).

        Second, Adams insists that the phrase “sexual[ly] stimulating . . . material” is so vague that

the condition violates his due process rights. Even assuming arguendo that Adams has indeed

identified error, however, we do not believe that the error is “plain”—that is, “clear or obvious,

rather than subject to reasonable dispute.” See Alvarado, 720 F.3d at 157 (quoting Marcus, 560

U.S. at 262). Adams points to no binding precedent from this Court holding that this phrase is

unconstitutionally vague, and “an error cannot be deemed ‘plain,’ in the absence of binding

precedent, where”—as here—“there is a genuine dispute among the other circuits” concerning the


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issue. United States v. Whab, 355 F.3d 155, 158 (2d Cir. 2004); see, e.g., United States v. Miller,

665 F.3d 114, 136–37 (5th Cir. 2011) (explaining that the phrase “sexually stimulating [material]”

in a supervised release condition is not impermissibly vague and must be read in a “commonsense”

way); United States v. Bee, 162 F.3d 1232, 1235 (9th Cir. 1998) (“The district court did not abuse

its discretion in prohibiting Bee from possessing sexually stimulating material as a condition of

supervised release.”). Accordingly, Adams has not demonstrated that the district court plainly

erred in imposing this condition of supervised release. See Alvarado, 720 F.3d at 157.

       Second, Adams challenges his mental health treatment condition, arguing that the district

court left it ambiguous as to whether his treatment would be mandatory or at the probation

department’s discretion. Although Adams is correct that a sentencing judge may not delegate to a

probation officer the authority to determine whether an individual must participate in a mental

health treatment program, see United States v. Peterson, 248 F.3d 79, 85 (2d Cir. 2001) (per

curiam), it is clear that the district court did not delegate such authority in this case. Adams

specifically requested mental health treatment in his sentencing submission, and the district court

insisted during the sentencing hearing that Adams “[o]bviously . . . had the order to take psychiatric

treatment.” App’x at 83. Thus, read in context, the sentencing judge’s allegedly ambiguous

statement to the probation officer concerning Adams’s treatment—“[i]f you order it, he’s to give

it,” id. at 86—clearly referred to whether Adams must participate in polygraph testing, not to

whether he must participate in treatment at all. See also App’x at 150 (noting that Adams’s mental

health treatment program “may include polygraph testing if deemed appropriate by his treating

medical professionals” (emphasis added)). Furthermore, to whatever extent the written judgment

is ambiguous as to whether Adams’s treatment is mandatory, the district court’s oral

pronouncement is not—and it is the oral pronouncement that controls. See United States v.


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Jesurum, 819 F.3d 667, 673 (2d Cir. 2016). Thus, because the district court “intend[ed] that the

therapy be mandatory” and simply delegated the matter of polygraph testing to the probation

officer’s discretion, Adams’s challenge to his supervised release condition fails. See Peterson, 248

F.3d at 85.

                                         *       *       *

       We have considered Adams’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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