12-1871-cr
U.S. v. Magner

                           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
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
6th day of May, two thousand thirteen.

Present:
         PIERRE N. LEVAL,
         ROBERT A. KATZMANN,
         PETER W. HALL,
                     Circuit Judges.
________________________________________________

UNITED STATES OF AMERICA,

                  Appellee,

                  v.                                                   No. 12-1871-cr

JOSEPH P. MAGNER, AKA reptilianagenda@msn.com,

               Defendant-Appellant.
_______________________________________________

For Defendant-Appellant:                 EDWARD S. ZAS, Federal Defenders of New York, New
                                         York, NY

For Appellee:                            ALLEN L. BODE (David C. James, on the brief),
                                         Assistant United States Attorneys, for Loretta E. Lynch,
                                         United States Attorney for the Eastern District of New
                                         York, Brooklyn, NY
       Appeal from the United States District Court for the Eastern District of New York
(Bianco, J.).

       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court be and hereby is AFFIRMED in part and

VACATED in part.

       Defendant-Appellant Joseph Magner appeals from an order entered on May 4, 2012 by

the United States District Court for the Eastern District of New York (Bianco, J.). That order

imposed a special condition of supervised release that prohibited Magner (1) from using “a

computer, Internet capable device, or similar electronic device to access pornography” and (2)

from “sending/receiving text (SMS – short messaging service), images, video, or audio (MMS –

multimedia messaging service) via cellular telephone or other capable device [except] as directed

by the Probation Department.” App’x at 187-88. The district court defined “pornography” to

mean “images or video(s) of adults or minors engaged in ‘sexually explicit conduct’ as that term

is defined in” 18 U.S.C. § 2256(2). Id. at 187. On March 19, 2010, Magner pled guilty to

knowingly receiving child pornography in violation of 18 U.S.C. § 2252(a)(2). On February 7,

2011, the district court sentenced Magner to 108 months of imprisonment and a five-year term of

supervised release. The district court entered its May 4, 2012 order after a prior decision by this

Court vacated one of the special conditions of supervised release imposed as part of Magner’s

initial sentence. See United States v. Magner, 455 F. App’x 131 (2d Cir. 2012) (summary order).

On the present appeal, Magner argues that the special condition of supervised release imposed in

the May 4, 2012 order is unconstitutionally vague, unnecessarily restrictive, and unrelated to the

purposes of sentencing. We assume the parties’ familiarity with the relevant facts, the procedural

history, and the issues presented for review.

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        Magner first challenges the prohibition on viewing pornography as unconstitutionally

vague, a “greater deprivation of liberty than is reasonably necessary,” and not “reasonably

related” to the purposes of sentencing. 18 U.S.C. § 3583(d); see also United States v. Simmons,

343 F.3d 72, 81 (2d Cir. 2003) (“Due process requires that the conditions of supervised release

be sufficiently clear to give the person of ordinary intelligence a reasonable opportunity to know

what is prohibited, so that he may act accordingly.” (internal quotation marks omitted)). In our

order resolving Magner’s prior appeal, however, we rejected these precise arguments. Magner,

455 F. App’x at 135-36. Specifically, we held that, “in the context of child pornography

convictions, the . . . definition of pornography in 18 U.S.C. § 2256 . . . is sufficiently clear to

defeat the vagueness argument and . . . restricting access to adult pornography as so defined is

permissible in such cases.” Id. at 135 (citations omitted). We nonetheless vacated the special

condition and remanded the case to allow the district court to formulate a definition of

pornography that did not sweep so broadly as to include even images of nude adults. Id. at 136.

        Our decision to remand, however, did not leave Magner free to relitigate the

appropriateness of a condition that prohibited him from viewing pornography, as defined by

reference to 18 U.S.C. § 2256. Instead, the so-called “mandate rule” foreclosed “relitigation of

all issues previously waived by the defendant or decided by the appellate court.” United States v.

Quintieri, 306 F.3d 1217, 1225 (2d Cir. 2002). Because Magner could not challenge our prior

decision before the district court, it follows that he cannot argue on appeal that the district court

erred by adhering to that decision.1 The mandate rule also forecloses Magner’s argument that the



        1
        While the law of the case doctrine leaves us free to depart from our prior rulings in the same case
“for compelling reasons,” Magner has presented no such reasons. United States v. Plugh, 648 F.3d 118,
123 (2d Cir. 2011) (internal quotation marks omitted).

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phrase “similar electronic device” is unconstitutionally vague. Because the condition Magner

challenged in his prior appeal also used the phrase “similar electronic device,” Magner has

“previously waived” any challenge to that phrase. Id. at 1225. Thus, because the district court’s

prohibition on viewing pornography complies with our earlier decision in this case, we reject

Magner’s challenges to that prohibition.

       We turn next to the restriction on texting. Because Magner did not object to this

restriction below, we review only for plain error. United States v. Gomez, 705 F.3d 68, 75 (2d

Cir. 2013). The restriction on texting appears to have neither a relationship to Magner’s crime

nor any basis in his history. Indeed, at oral argument, the Government declined to defend that

prohibition and consented to striking it from the relevant condition of supervised release,

characterizing it as an inappropriate holdover from earlier sentencings. We agree and conclude

that forbidding Magner from texting was plain error.

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

For the reasons stated herein, the judgment of the district court is AFFIRMED in part and

VACATED in part.

                                           FOR THE COURT:
                                           CATHERINE O’HAGAN WOLFE, CLERK




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