19-2304
United States v. Birkedahl


                       United States Court of Appeals
                             For the Second Circuit


                                   August Term 2019

                                 Submitted: June 2, 2020

                                Decided: August 25, 2020



                                       No. 19-2304




                               UNITED STATES OF AMERICA,

                                        Appellee,

                                            v.

                                   ERIC A. BIRKEDAHL,

                                   Defendant-Appellant.




                       Appeal from the United States District Court
                          for the Western District of New York
                         No. 19-cr-6044, Frank P. Geraci, Judge.



Before: SULLIVAN, PARK, AND NARDINI, Circuit Judges.
       Defendant-Appellant Eric Birkedahl, who is serving a 24-month sentence
for possession of child pornography, challenges three conditions of his supervised
release, including a verification testing condition that permits the use of a
computerized voice stress analyzer to assess Birkedahl’s compliance with the
terms of his supervised release. Contending that there is a lack of scientifically
valid evidence supporting the test’s accuracy, Birkedahl argues that the district
court abused its discretion in including the computerized voice stress analyzer in
the condition, and at the very least should have conducted a hearing on the test’s
reliability. We hold that this challenge is not ripe because the efficacy of
computerized voice stress analyzers in promoting sentencing goals is subject to
change with technological advances. Accordingly, we DISMISS Birkedahl’s
challenge to the computerized voice stress analyzer, as well as his challenge to the
notification risk condition, which is also not ripe. Because Birkedahl’s challenge
to the remaining condition of supervised release is foreclosed by our precedents,
we AFFIRM the remainder of the sentence and judgment of the district court.

      AFFIRMED.

                                Jay S. Ovsiovitch, Assistant Public Defender,
                                Federal Public Defender’s Office, Rochester, New
                                York, for Defendant-Appellant Eric A. Birkedahl.

                                Tiffany H. Lee, Assistant United States Attorney,
                                for James P. Kennedy, Jr., United States Attorney
                                for the Western District of New York, Buffalo,
                                New York, for Appellee United States of America.

RICHARD J. SULLIVAN, Circuit Judge:

      Defendant-Appellant Eric Birkedahl, who is serving a 24-month custodial

sentence after pleading guilty to possession of child pornography in violation of

18 U.S.C. § 2252A, appeals three conditions of supervised release that will

commence after he completes his term of imprisonment. Specifically, Birkedahl
contends that: (1) the special condition requiring him to attend a sex offense

treatment program (the “treatment condition”) is impermissibly vague; (2) the

special condition that requires him to be tested to verify his compliance with the

conditions of his supervised release (the “verification testing condition”)

improperly permits the use of a computerized voice stress analyzer (“CVSA”) that

he claims is unreliable; and (3) the standard notification of risk condition, which

contemplates that Birkedahl may be required to notify third parties that he poses

a risk to them, delegates too much discretion to the probation officer. As to the

CVSA, we hold that the challenge is not ripe because the efficacy of computerized

voice stress analyzers in promoting sentencing goals is subject to change with

technological advances before Birkedahl’s term of supervision begins. We dispose

of the remaining challenges under our existing precedents, finding the challenge

to the risk condition also to be unripe and the challenge to the treatment condition

to be meritless.   We therefore dismiss the unripe challenges and affirm the

remainder of the district court’s judgment.


                                 I. BACKGROUND

      On April 9, 2019, Birkedahl waived indictment and pleaded guilty in the

United States District Court for the Western District of New York (Geraci, J.) to



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one count of possession of child pornography in violation of 18 U.S.C. § 2252A.

Birkedahl waived his right to appeal a sentence within or below an agreed-upon

Guidelines range of 97 to 121 months’ imprisonment and a supervised release

period of five years to life. Before sentencing, Birkedahl objected to several

conditions of supervised release proposed in the presentence investigation report,

including the two special conditions and the standard risk condition that he

challenges on appeal.

      At sentencing, the district court permitted oral argument on Birkedahl’s

objections. With respect to the treatment condition, 1 Birkedahl argued that it was

impermissibly vague because it failed to adequately specify which details of his

sex offense treatment would be supervised by the probation officer. Explaining

that “to spell out every single detail would be overwhelming for the condition,”

the probation officer present at sentencing affirmed that probation would

supervise the details of the court-imposed conditions “to be able to give [the court]

a report on . . . compliance or non-compliance,” not to act as a counselor or



1The treatment condition provides that: “The defendant must participate in a sex offense-
specific treatment program and follow the rules and regulations of that program. The
probation officer will supervise the details of the defendant’s participation in the
program, including the selection of a provider and schedule. The defendant is not to
leave treatment until complete or as ordered by the Court. The defendant is required to
contribute to the cost of services rendered.” App’x at 85.


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treatment provider as the defense suggested could be the case. App’x at 58–59.

The district court found that the condition was reasonably related to the offense

and that it provided that the probation officer would merely supervise Birkedahl’s

participation in treatment “and report back to the [c]ourt,” “not that [the officer]

will determine what the details are or determine what the particular aspects of the

program are.” Id. at 59.

      Arguing that the CVSA’s reliability in detecting deception lacked a scientific

basis, Birkedahl also asked the court to strike the reference to the CVSA in the

verification testing condition, 2 or in the alternative, to hold a hearing regarding the

reliability of the CVSA. In response, the probation officer explained that the CVSA

could be beneficial to Birkedahl because it could be provided at no cost, while

polygraph testing costs “approximately $275” per evaluation. Id. at 61. As

relevant here, the court retained the CVSA reference without holding a hearing. It

also clarified that the probation office could use the CVSA, as well as a polygraph,




2 The verification condition provides that: “The defendant shall submit to polygraph,
computerized voice stress analyzer, or other such testing as approved by the Court, not
to exceed twice in a calendar year, and an additional two re-tests per year, as needed.
That testing may include examinations using a polygraph, computerized voice stress
analyzer, or other similar device as approved by the Court, to obtain information
necessary for supervision, case monitoring, and treatment. . . . The defendant is required
to contribute to the cost of services rendered.” App’x at 85.

                                            5
without the court’s prior approval, though the use of other devices would require

court approval.

      The defense finally noted its objection to the risk condition, 3 and relied on

its written submission without elaboration.          The court also overruled that

objection.

      The district court ultimately imposed a below-Guidelines sentence of 24

months, to be followed by a five-year term of supervised release. The court then

reiterated that the term of supervised release was subject to various conditions,

including special conditions such as the treatment condition and verification

testing condition.

      On appeal, Birkedahl reiterates his challenges to those special conditions

and the standard risk condition. First, he maintains that the sex offense treatment

condition is vague and must be vacated and remanded for the district court to

explain what it means for probation to supervise the administrative details of the



3 The standard risk condition employed in the Western District of New York provides:
“If the court determines in consultation with your probation officer that, based on your
criminal record, personal history and characteristics, and the nature and circumstances
of your offense, you pose a risk of committing further crimes against another person
(including an organization), the probation officer may require you to notify the person
about the risk and you must comply with that instruction. The probation officer may
contact the person and confirm that you have notified the person about the risk.” App’x
at 84.


                                           6
treatment. Second, Birkedahl argues that he should not be subject, without a

hearing, to the condition requiring him to submit to a CVSA because that

technology is not scientifically reliable. Third, Birkedahl argues that the standard

risk condition imposed gives the probation officer too much discretion and that

the case should be remanded for the district court to clarify that it, not probation,

will determine whether a person should be notified. We address each challenge

in turn.

                                   II. DISCUSSION

      “A district court retains wide latitude in imposing conditions of supervised

release,” and this Court generally reviews the imposition of such conditions “for

abuse of discretion.” United States v. MacMillen, 544 F.3d 71, 74 (2d Cir. 2008).

“When a challenge to a condition of supervised release presents an issue of law,

we review . . . de novo, bearing in mind that any error of law necessarily constitutes

an abuse of discretion.” Id. at 74–75. As a general matter, “[a] court may order

special conditions of supervised release” if they are “reasonably related” to the

statutory purposes of supervision: namely, “the nature and circumstances of the

offense and the history and characteristics of the defendant”; “the need for the

sentence imposed to afford adequate deterrence”; “the protection of the public”;




                                          7
and “the rehabilitative and medical care needs of the defendant.” United States v.

Parisi, 821 F.3d 343, 348 (2d Cir. 2016) (internal quotation marks omitted). Special

conditions “must also involve no greater deprivation of liberty than is reasonably

necessary” to implement the statutory purposes of sentencing, and “must be

consistent with any pertinent [Sentencing Commission] policy statements.” Id.

(internal quotation marks omitted).

                    A. The Sex Offense Treatment Condition

      Birkedahl first contends that the special condition requiring him to

participate in a sex offense treatment program is erroneously vague as to the scope

of the probation officer’s supervisory role. He concedes that it is permissible for

probation to have discretion over “administrative aspects of the treatment such as

the ‘selection of a provider and the schedule.’” Birkedahl Br. at 22 (emphasis

omitted) (quoting United States v. Maggese, 785 F. App’x 879, 881 (2d Cir. 2019)).

Nevertheless, Birkedahl argues that because the condition fails to delineate the

other functions that constitute administrative aspects within the probation

officer’s supervision, it raises concerns “about the amount of discretion . . . given

to the probation officer not listed in the condition.” Id. at 21.

      The challenge is meritless. To be sure, “a district court may not delegate to

the Probation Department decisionmaking authority which would make a

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defendant’s liberty itself contingent on a probation officer’s exercise of

discretion.” United States v. Matta, 777 F.3d 116, 122 (2d Cir. 2015).       But as

Birkedahl himself recognizes, we have long upheld delegations “over certain

minor details of supervised release,” including “the selection of a therapy provider

or treatment schedule.” Id.

      Here, the district court made clear that it was delegating to the probation

officer discretion over only “the details of the defendant’s participation in the

program, including the selection of a provider and schedule.” App’x at 75–76. As

we recently explained in a summary order addressing a similar challenge to a sex

offense treatment condition, “[t]he court’s use of the word ‘including’ cannot

reasonably be understood as expanding Probation’s decisionmaking authority

beyond the administrative details of treatment such that it rendered [Birkedahl’s]

‘liberty itself contingent on a probation officer’s exercise of discretion.’” United

States v. Leone, No. 19-1670, 2020 WL 2550991, at *1 (2d Cir. May 20, 2020) (quoting

Matta, 777 F.3d at 122); see also United States v. Peterson, 248 F.3d 79, 85 (2d Cir.

2001) (holding that a district court may leave to the probation officer’s discretion

“a variety of details, including the selection of a therapy provider and schedule”




                                         9
(emphasis added)). Accordingly, the district court did not abuse its discretion in

imposing this condition.


                     B. The Verification Testing Condition

      Birkedahl’s next challenge concerns the verification testing condition, which

permits the probation officer to require Birkedahl to take a polygraph

examination, CVSA, or other verification test as approved by the court. As a

general matter, this Court has upheld the use of verification testing in supervising

defendants convicted of sex offenses, recognizing “the strong deterrent value of

polygraph conditions” and their ability to “further sentencing objectives such as

rehabilitation and deterrence, with reasonably small incremental deprivations of

liberty.” United States v. Boles, 914 F.3d 95, 112 (2d Cir. 2019) (internal quotation

marks omitted); see also Parisi, 821 F.3d at 349 (upholding a condition allowing the

use of polygraph, CVSA, or other similar devices); United States v. Johnson, 446 F.3d

272, 278 (2d Cir. 2006). Here, Birkedahl does not dispute the district court’s

authority to impose a verification testing condition. Nevertheless, citing the

CVSA’s alleged unreliability in detecting deception, Birkedahl seeks to remove the

reference to the CVSA from the condition, arguing that its imposition renders the

condition not reasonably related to the statutory purposes of supervision.



                                         10
Birkedahl also contends that the district court abused its discretion when it did not

hold a hearing to assess the CVSA’s reliability and, as alternative relief, requests

remand so that the district court can hold such a hearing. 4 In Birkedahl’s view,

because the probation officer or government did not attempt “to rebut the studies”

that Birkedahl cited as support for his assertion that the CVSA is unreliable, the

court was required to hold a hearing before imposing a condition that included

the CVSA as a permissible tool. Birkedahl Br. at 31. To be clear, Birkedahl’s

hearing-based challenge does not suggest that it was an abuse of discretion to

impose the verification testing condition itself. He merely argues that the district

court should not have included the CVSA as a means of carrying out verification

testing without first holding a hearing as to its reliability. We disagree, and find


4 In his briefing, Birkedahl insists that he was entitled to a Daubert hearing on the
reliability of the CVSA test. But a Daubert hearing relates to the “admissibility of . . .
scientific evidence at trial.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 585 (1993)
(emphasis added). Needless to say, the form of verification testing that may be required
as a condition of supervised release does not turn on whether the results from such a test
would be admissible as evidence at trial. See, e.g., United States v. Johnson, 446 F.3d 272,
278 (2d Cir. 2006) (noting that the fact that “polygraph results are inadmissible as
evidence” “does not much bear on the therapeutic value of the tool” to advance
sentencing goals). Notwithstanding this misplaced reference to Daubert, we understand
Birkedahl to be requesting a hearing regarding the CVSA’s reliability more generally, as
related to the appropriateness for inclusion in a supervised release condition. See, e.g.,
Birkedahl Br. at 30 (arguing that the district court should have held a Daubert hearing to
“assess the reliability and necessity of the [CVSA] before permitting its use as a supervisory
tool” (emphasis added)).



                                             11
that the reliability of the CVSA is a fact-specific scientific inquiry that is subject to

change with the advent of new technology and the passage of time. Accordingly,

whether the district court abused its discretion by including the CVSA as a

permissible test without first holding a hearing is not ripe for our review.

      “The ripeness doctrine prevents a federal court from entangling itself in

abstract disagreements over matters that are premature for review because the

injury is merely speculative and may never occur.” United States v. Balon, 384 F.3d

38, 46 (2d Cir. 2004) (internal quotation marks and brackets omitted). “Because

the ripeness doctrine is drawn both from Article III limitations on judicial power

and from prudential reasons for refusing to exercise jurisdiction, the court can

raise it sua sponte, and, indeed, can do so for the first time on appeal.” Thomas v.

City of New York, 143 F.3d 31, 34 (2d Cir. 1998) (internal quotation marks omitted).

In assessing ripeness, we consider two factors – the fitness of the issues on appeal

for judicial consideration, and the potential hardship to parties that will result

from withholding consideration. Balon, 384 F.3d at 46.

      Birkedahl’s challenges to the CVSA rest on the premise that the CVSA is so

unreliable at detecting deception that it cannot be imposed on Birkedahl, either

full-stop, or without further factual development. But where, as here, the necessity




                                           12
or propriety of a supervisory tool hinges on the state of technology available at the

time of supervision, we have previously declined to consider challenges to the tool

in question on direct appeal prior to the commencement of supervised release. Id.

at 47 (stating that where “the necessity of [a given] aspect of [a] special condition”

is “essentially a question of technology, it is . . . unripe and should be reconsidered

in the future”); see also id. at 48 (instructing the district court “to evaluate the

necessity” of the condition pursuant to 18 U.S.C. § 3583(e) “in light of the

technology existing closer to the time of . . . supervised release”).

      This is particularly true with respect to rapidly evolving technologies such

as computers and software.       As we observed in Balon, “changing computer

technology is an appropriate factor to authorize” modifications based on “new or

unforeseen circumstances” under § 3583(e). Id. at 47 (internal quotation marks

omitted).   And since the CVSA involves precisely such a rapidly changing

computer technology, we find that it is inappropriate “to predict the state of [the

CVSA’s] computer technology at the commencement of” Birkedahl’s term of

supervision. See id. at 40; see also Kelly R. Damphousse, Voice Stress Analysis: Only

15 Percent of Lies About Drug Use Detected in Field Test, NIJ J. Mar. 2008, at 11 n.3,

https://www.ncjrs.gov/pdffiles1/nij/221502.pdf (noting that the first version of the




                                          13
CVSA test at issue in the study was introduced in 1988 “and has undergone a

number of changes and system upgrades over the years”).

      As such, Birkedahl’s claim that the CVSA is too unreliable for use in

supervised release is “distinctly a matter of fact beyond the prescience of this court

and is thus currently subject to abstract disagreements over matters that are

premature for review.” Balon, 384 F.3d at 46 (internal quotation marks omitted).

Further, to the extent that the CVSA may advance sentencing goals by encouraging

candor, the salience of that objective will also increase or diminish with changes

in the technology’s reliability and, relatedly, its cultural currency. See Johnson, 446

F.3d at 277 (explaining that polygraphs may “deter lying notwithstanding its

arguable or occasional unreliability because of the subject’s fear that it might work,

or be credited by others whether it works or not”); Parisi, 821 F.3d at 349 (noting

that verification testing generally could further rehabilitation and deterrence).

      Though Birkedahl is serving a relatively short sentence of 24 months, his

supervised release term nevertheless will not start for nearly a year. In that time,

it is likely that the technology at issue may become more sophisticated or that new

studies regarding the efficacy of the technology will become available. Indeed,

Birkedahl cites in his opening brief two studies, one published in 2002 and one




                                          14
published in 2008, that he asserts support his view that the CVSA is unreliable.

But the considerable age of these studies weighs against the fitness of the issues

for judicial review now. After all, whatever conclusion we might reach today

based on decades-old evidence is even more likely to be superseded by the start

of Birkedahl’s supervised release. Moreover, since one of the studies cited by

Birkedahl found that a version of the CVSA introduced as far back as 1997 detected

deception at a rate comparable to what we have said renders polygraphs a

permissible verification tool, it is reasonable to expect that even incremental

advances in CVSA technology in the interim will be highly relevant to determining

whether, at the time of Birkedahl’s supervision, the CVSA is sufficiently reliable

to advance sentencing goals. 5 Accordingly, given that computer technology is

often rapidly changing, we are unable to predict whether the CVSA’s use will

render the verification testing condition not reasonably related or necessary to the

sentencing goals relevant to Birkedahl at the time it may be imposed. See Balon,

384 F.3d at 46.




5Compare Damphousse at 10, 11 (finding the CVSA to yield an average accuracy rate of
approximately 50 percent in a field test), with Johnson, 446 F.3d at 278 (noting that because
“even the bottom of the range” of polygraph reliability – at “greater-than-50%” – was
“still more-likely-than-not, the technology produces an incentive to tell the truth, and
thereby advances the sentencing goals”).


                                             15
      Turning to the second prong of the ripeness inquiry, we also identify little

hardship to the parties that would preclude withholding of judicial consideration

at this time. As noted above, “changing computer technology is an appropriate

factor to authorize a modification of supervised release conditions under Section

3583(e).” Id. at 47. And since Birkedahl can challenge the CVSA testing condition

at any time while he is on supervised release, he will not be disadvantaged by the

decision to forego resolution of this technology issue until the commencement of

his supervision.

      Because Birkedahl has not begun his term of supervised release, we can only

speculate “at this time whether one method or another, or a combination of

methods,” in a technology-dependent condition will be reasonably necessary to

further the goals of supervision. Id. at 46. Here, “[t]he [CVSA] technology that

holds the key to whether the special condition in this case” is reasonably related

to the sentencing factors is subject to change. Id. Accordingly, we decline to reach

his arguments.




                                        16
                      C. The Notification of Risk Condition

      Finally, Birkedahl maintains that the Western District’s revised standard

risk condition delegates more discretion to the probation officer than this Court’s

precedents allow. But this argument is foreclosed by our recent holding in United

States v. Traficante, which makes clear that this challenge is not ripe. 966 F.3d 99,

105–07 (2d Cir. 2020). Specifically, the condition provides that “[i]f the court

determines . . . that, based on [Birkedahl’s] criminal record, personal history and

characteristics, and the nature and circumstances of [his] offense,” he presents “a

risk of committing further crimes against another person[,] . . . the probation officer

may require [Birkedahl] to notify the person about the risk” and may confirm

compliance. App’x at 84. As we explained in Traficante, any allegedly improper

delegation “is conditioned on the district court finding, during [Birkedahl’s] term

of supervised release, that he poses a risk of committing further crimes against

another person” – a contingency that may never occur. 966 F.3d at 106–07.

Accordingly, this issue is not ripe for review, and therefore provides no basis for

overturning Birkedahl’s sentence.




                                          17
                               III. CONCLUSION

      For the foregoing reasons, we DISMISS Birkedahl’s challenges to the CVSA

and the risk condition, and otherwise AFFIRM the judgment of the district court.




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