17-1320
United States v. Randazzo

                             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
18th day of April, two thousand nineteen.

Present:
            GUIDO CALABRESI,
            DEBRA ANN LIVINGSTON,
            RAYMOND J. LOHIER, JR.,
                  Circuit Judges.
_____________________________________

UNITED STATES OF AMERICA,

                            Appellee,

                 v.                                                   17-1320

ALBERTO RANDAZZO,

                  Defendant-Appellant.*
_____________________________________

For Appellee:                                SUSAN CORKERY, Tyler J. Smith, Assistant U.S.
                                             Attorneys, for Richard P. Donaghue, U.S. Attorney for
                                             the Eastern District of New York, Brooklyn, NY.

For Defendant-Appellant:                     RANDOLPH Z. VOLKELL, Merrick, NY.




*
    The Clerk of Court is respectfully requested to amend the official caption as set forth above.


                                                   1
       Appeal from a judgment of the United States District Court for the Eastern District of New

York (Chen, J.).

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

DECREED that the appeal is DISMISSED as unripe for review.

       Defendant-Appellant Alberto Randazzo (“Randazzo”) appeals from an April 26, 2017

judgment of the United States District Court for the Eastern District of New York (Chen, J.),

convicting Randazzo of two counts of conspiracy to sexually exploit a child and one count of

receiving child pornography, and sentencing him to twenty-eight years’ imprisonment, eight years’

supervised release, and a $300 special assessment. Among other conduct, Randazzo met women

through social-media websites and persuaded them to perform simulated or actual sex acts on their

minor children while recording the sexual abuse in photographs and videos. We assume the parties’

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

       Randazzo challenges as unduly restrictive three of the special conditions imposed as part

of his supervised-release term. Those special conditions, which would take effect when Randazzo

is released from prison in over two decades, read as follows:

       [Special condition] 7. . . . The defendant shall . . . cooperate with the U.S. Probation
       Department’s Computer and Internet Monitoring program. Cooperation shall
       include, but not be limited to, identifying computer systems, Internet capable
       devices, and/or similar electronic devices the defendant has access to, and allowing
       the installation of monitoring software/hardware on said devices, at the defendant’s
       expense.

       [Special condition] 8. The defendant may not access any website that permits
       persons under the age of 18 to be registered users for the purposes of establishing
       personal relationships with other users; allow[s] minors to post profiles that provide
       information about themselves; or allows for direct or real time communication with
       other users.

       [Special condition] 10. The defendant will not purchase or possess photographic or
       video equipment, without the prior knowledge and permission of the U.S. Probation
       Department.

                                                  2
A-5. We conclude that none of Randazzo’s challenges to these conditions are ripe for review, and

thus we need not—and should not—at this juncture take a position on whether the conditions are

unduly restrictive.

       A challenge is ripe if “(1) the issues are fit for judicial consideration, and (2) withholding

of consideration will cause substantial hardship to the parties.” United States v. Balon, 384 F.3d

38, 46 (2d Cir. 2004) (quoting United States v. Quinones, 313 F.3d 49, 58 (2d Cir. 2002)). As to

the first prong, we have previously held that where “the necessity” of a special condition is

“essentially a question of technology,” and a defendant will not begin a term of supervised release

for a number of years, the challenge to the special condition is not fit for judicial consideration,

because “constantly and rapidly changing” technology makes it impossible to evaluate the

condition’s necessity before the condition takes effect. See id. at 46–47. Here, all three of the

challenged conditions involve rapidly changing technology, and whether any of the conditions

unnecessarily deprive Randazzo of liberty will turn on what technology is available in more than

two decades. Therefore, Randazzo’s challenges to those conditions are not fit for judicial

consideration at this time. As to the second ripeness prong, we have held that a defendant suffers

no hardship from our withholding consideration where he or she will have an opportunity to

challenge the special conditions at a later date. Id. Here, the special conditions can be challenged

at a later date through a proceeding under Section 3583(e)(2). See id.

       For these reasons, neither ripeness prong is met. As a result, Randazzo’s challenges to

special conditions 7, 8, and 10 are not ripe. Cf. United States v. Millar, 111 F. App’x 644, 645 (2d

Cir. 2004) (dismissing challenge to special condition relating to computer monitoring as unripe

under Balon).

                                         *       *       *


                                                 3
       We have considered Randazzo’s remaining arguments and find them to be without merit.

Accordingly, we dismiss the appeal. Special conditions 7, 8, and 10 are to be reconsidered by the

district court at the instance of Randazzo or the government under 18 U.S.C. § 3853(e) at a time

closer to Randazzo’s supervised release date.

                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk




                                                4
