16-2918-pr
Pollard v. United States Parole Commission

                                  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 ASUMMARY 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 24th day of May, two thousand seventeen.

PRESENT: REENA RAGGI,
         SUSAN L. CARNEY,
                                                    Circuit Judges,
                     LEWIS A. KAPLAN,
                                                    District Judge.*
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JONATHAN J. POLLARD,
                                               Petitioner-Appellant,
                 v.                                                         No. 16-2918-pr

UNITED STATES PAROLE COMMISSION, J.
PATRICIA WILSON SMOOT, solely in her capacity as
Chair of the United States Parole Commission, UNITED
STATES PROBATION OFFICE, FOR THE SOUTHERN
DISTRICT          OF       NEW        YORK,         MICHAEL            J.
FITZPATRICK, solely in his capacity as Chief United
States Probation Officer,
                                            Respondents-Appellees.
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APPEARING FOR APPELLANT:                          ELIOT LAUER (Jacques Semmelman, Gabriel
                                                  Hertzberg, Sylvi Sareva, on the brief), Curtis,
                                                  Mallet-Prevost, Colt & Mosle LLP, New York,
                                                  New York.
*
 Judge Lewis A. Kaplan, of the United States District Court for the Southern District of
New York, sitting by designation.

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APPEARING FOR APPELLEES:                   REBECCA S. TINIO, Assistant United States
                                           Attorney (Benjamin H. Torrance, Assistant
                                           United States Attorney, on the brief), for Preet
                                           Bharara, United States Attorney for the
                                           Southern District of New York, New York,
                                           New York.

         Appeal from a judgment of the United States District Court for the Southern

District of New York (Katherine B. Forrest, Judge).

         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on August 12, 2016, is AFFIRMED.

         In 1984, petitioner Jonathan J. Pollard was convicted, following a guilty plea, of

conspiracy to deliver national defense information to a foreign government in violation of

18 U.S.C. § 794(c), for which he was sentenced to life imprisonment. On November 20,

2015, after serving 30 years of his sentence, Pollard was paroled pursuant to 18 U.S.C.

§ 4206(d), subject to special conditions, including, as relevant here, GPS monitoring,

computer monitoring, and a curfew.1 That same day, Pollard filed a habeas corpus

petition pursuant to 28 U.S.C. § 2241 to challenge those conditions. He here appeals



1
    The parole statute provides:

         The Commission may impose or modify other conditions of parole to the
         extent that such conditions are reasonably related to—

         (1) the nature and circumstances of the offense; and
         (2) the history and characteristics of the parolee;

         and may provide for such supervision and other limitations as are reasonable to
         protect the public welfare.

18 U.S.C. § 4209(a) (1985).


                                              2
from the denial of that petition. See Pollard v. U.S. Parole Comm’n, No. 15-CV-9131

(KBF), 2016 WL 4290607 (S.D.N.Y. Aug. 11, 2016).

         We review the denial of a § 2241 petition de novo, while accepting factual

findings absent clear error. See Lugo v. Hudson, 785 F.3d 852, 854 (2d Cir. 2015). In

doing so, we are mindful that § 2241 review of parole commission decisions is

“extremely limited” to whether the commission has abused its “broad discretion to

determine parole eligibility” and to “interpret[] its own regulations.” Bialkin v. Baer, 719

F.2d 590, 593 (2d Cir. 1983) (internal citations omitted).2 As such, a federal reviewing

court may not substitute its own judgment for that of the Commission or gainsay the

Commission’s credibility determinations and factual findings. Rather, a court can disturb

the Commission’s ultimate determination only if it lacks a rational basis. See id.; see also

Iuteri v. Nardoza, 732 F.2d 32, 37 (2d Cir. 1984). In applying these standards here, we

assume the parties’ familiarity with the facts and procedural history of this case, which

we reference only as necessary to explain our decision to affirm for substantially the


2
    Under federal regulation, the Commission may,

         Impose a condition of release . . . if [it] determine[s] that imposing the
         condition is reasonably related to the nature and circumstances of [the
         parolee’s] offense or [his] history and characteristics, and at least one of the
         following purposes of criminal sentencing: The need to deter [him] from
         criminal conduct; protection of the public from further crimes; or the need
         to provide [him] with training or correctional treatment or medical care. In
         choosing a condition [the Parole Commission] will also consider whether
         the condition involves no greater deprivation of liberty than is reasonably
         necessary for the purposes of deterrence of criminal conduct, protection of
         the public from crime and offender rehabilitation.

28 C.F.R. § 2.40(b).

                                                3
reasons articulated by the district court. See Pollard v. U.S. Parole Comm’n, 2016 WL

4290607.

1.     GPS Monitoring and Curfew Conditions

       Pollard argues that the GPS monitoring and curfew conditions lack an evidentiary

basis. Insofar as the Commission explained that these conditions were imposed to deter

Pollard from further criminal conduct, to protect the public, and to minimize the risk of

flight, it relied, inter alia, on the deceptive nature of Pollard’s criminal conduct, his

professed desire (even recently) to leave the United States for Israel, and his propensity to

violate conditions imposed during his prosecution and incarceration relating to the

classified information he had compromised.

       To the extent Pollard faults the Commission for considering offense conduct more

than 30 years earlier, this argument is defeated by 18 U.S.C. § 4209(a), which expressly

identifies “the nature and circumstances of the offense” of conviction as a matter to be

considered in imposing any parole condition. The statute similarly requires Commission

consideration of a defendant’s “history and characteristics,” without regard to timeframe.

Id. Thus, as this court has recognized, “[i]n making parole decisions, the Commission is

required by statute to consider all available relevant information concerning the

prisoner.” Ochoa v. United States, 819 F.2d 366, 372 (2d Cir. 1987).

       Accordingly, we identify no error in the Commission’s consideration of conduct

and circumstances arising more than 30 years ago. Indeed, the age of this evidence

manifests the seriousness of Pollard’s crime, as reflected in his lengthy sentence.




                                             4
       In as much as Pollard’s arguments challenge the weight the Commission accorded

certain information and the credibility determinations it made, such decisions fall within

its broad discretion and may not be second-guessed by a federal court absent a clear

showing of abuse. See Bialkin v. Baer, 719 F.2d at 593. We identify no such abuse in

the fact that the Commission, in concluding that Pollard presented a risk of flight, gave

weight to a letter from two Members of Congress articulating “Mr. Pollard’s wish to

move to Israel.” J.A. 170. While Pollard asserts that he desired lawfully to move to

Israel, the Commission was entitled to weigh his recent expressions on that subject in

light of his past efforts to flee illegally to Israel. See Ochoa v. United States, 819 F.2d at

372 (referencing statutory requirement that Commission consider “all available relevant

information”).   Similarly, the Commission did not abuse its discretion in according

weight to a 1995 letter from the then-CIA Director reporting that classified information

had appeared in Pollard’s prison correspondence at least 14 times. The fact that Pollard

was never charged or disciplined for these communications did not strip the conduct of

relevancy in the Commission’s assessment of whether to impose special conditions on

Pollard’s parole. See generally 18 U.S.C. § 4207(5) (stating that Commission “shall

consider” victim’s statement, oral or otherwise, as to harm caused by crime); Bowen v.

U.S. Parole Comm’n, 805 F.2d 885, 888 (9th Cir. 1986) (recognizing Commission

authority to consider all relevant information to include unadjudicated matters).

       Pollard argues that the Commission could not base his parole conditions on

inaccurate facts, but he fails to show that the Commission did so. Such self-serving

denials as are made in his appellate brief do not show that the Commission abused its


                                              5
discretion in finding that he violated a court-imposed gag order in speaking to a reporter

while incarcerated, attempted to disseminate classified information in his prison

correspondence, and provided or attempted to provide classified information to foreign

countries or agents beyond Israel.

       Pollard argues that the challenged conditions lack a rational basis absent proof that

he still remembers, and, therefore, could still disseminate classified information that came

into his possession more than 30 years ago.            The argument fails because the

Commission’s duty to “protect the public welfare,” 18 U.S.C. § 4209(a), did not depend

on proof of his memory, cf. United States v. MacPherson, 424 F.3d 183, 189 (2d Cir.

2005) (“The law, however, recognizes that the mens rea elements of knowledge and

intent can often be proved through circumstantial evidence and the reasonable inferences

drawn therefrom.”); United States v. George, 779 F.3d 113, 121 (2d Cir. 2015). Rather,

the Commission acted within its discretion to impose special conditions in light of the

letter it received from James R. Clapper, the then-Director of National Intelligence,

reporting that a specific, recent re-review of documents compromised by Pollard

confirmed their continued classified status. Pollard points to no evidence to the contrary.

Indeed, Clapper’s conclusion is reinforced by a 2016 declaration submitted to the district

court by the Director of the Information Management Division, Office of the Director of

National Intelligence, which states that “some of the sources and methods” used to

develop the intelligence acquired by Pollard “not only remain classified but are still in

use by the Intelligence Community today,” J.A. 377, such that disclosure could place

foreign partnerships and human sources and their families at risk. On such a record, the


                                             6
Commission did not exceed its discretion in imposing special conditions on Pollard—

even absent proof of what he did or did not remember classified information—that

minimized the risk of harm he continued to pose for United States intelligence. Nor was

the Commission, whose members do not carry security clearances, required personally to

review or evaluate the information at issue to conclude that special conditions were

warranted.

      Finally, Pollard argues that because the GPS monitoring and curfew will not

absolutely prevent his further disclosure of classified information or his flight from the

United States, these conditions cannot be deemed rationally related to such government

interests. The argument is defeated by precedent recognizing that rational-basis review

does not demand that a law or rule—or here, a parole condition—“strike at all evils at the

same time,” but may “only partially ameliorate a perceived evil.” Minnesota v. Clover

Leaf Creamery Co., 449 U.S. 456, 466 (1981) (internal quotation marks omitted).

      In sum, for these reasons as well as those stated by the district court, see Pollard v.

U.S. Parole Comm’n, 2016 WL 4290607, at *9–10, we conclude that Pollard’s challenge

to the curfew and GPS monitoring conditions of his parole fails on the merits.

2.    Computer Monitoring Condition

      In conditioning Pollard’s parole on the monitoring of any computer used by him,

the Commission cited the need to minimize the risk of his disclosing classified

information and to monitor compliance with his plea agreement’s stipulation regarding

unauthorized disclosure and pre-publication review. See J.A. 216. The Commission

further cited Pollard’s tendency to dissemble, and, as already discussed above, his history


                                             7
of violating pre-trial conditions, as well as the continued classified status of information

he compromised. Because our discussion and conclusions in the previous section of this

order apply with equal force here, we need only address arguments unique to computer

monitoring.

       Pollard contends that the Commission misinterpreted evidence as to his professed

job offer and his characterization of himself as a “White Knight” for Israel in concluding

that he had a propensity to dissemble. In arguing that this conclusion is irrational, Pollard

maintains that he did not misrepresent the existence of a job offer upon his release; rather,

defense counsel, who orchestrated that offer, advised Pollard that he “could not

reasonably ask his prospective employer to subject its company computers to government

monitoring.” Appellant’s Br. 24. Pollard further maintains that his self-characterization

as a “White Knight for Israel” is accurate because he was never charged with disclosing

classified information to any other country. Id.

       The concerns identified by the Commission were rational. First, Pollard adduced

no evidence that he had ever discussed the monitoring condition with his purported

prospective employer or otherwise attempted to find employment consistent with the

condition. Rather, the record reveals that defense counsel instructed Pollard not to work

unless the condition was removed. On this record, viewed together with evidence that

Pollard’s parole officer would work with a prospective employer to minimize the

intrusion on employer functions in monitoring Pollard’s computer communications, the

Commission had a rational basis to conclude that Pollard’s representation that the

monitoring condition precluded him from obtaining any employment was less than


                                             8
candid or complete and, in fact, an example of his propensity to dissemble. Second, as

already discussed, the Commission’s statutory requirement to consider all record

evidence, including uncharged activities, see Ochoa v. United States, 819 F.2d at 372,

allowed it to rely on evidence of Pollard’s willingness to traffic classified information to

non-Israeli customers to find that Pollard has a propensity to dissemble.

         Insofar as Pollard asserts that the computer monitoring condition is not reasonably

related to government interests because he did not use a computer or the internet to

commit the crime of conviction, the argument fails for the reasons stated by the district

court. Specifically, there is a reasonable nexus between Pollard’s offense conduct, which

involved the distribution of information, and computers, which are the most efficient and

common means of undertaking that activity today. The Commission’s decision not to

restrict or monitor Pollard’s telephone conversations, meetings, or regular mail warrants

no different conclusion. See Minnesota v. Clover Leaf Creamery Co., 449 U.S. at 466

(holding that limitation can be rational even if it only partially ameliorates perceived

evil).

         Further, although Pollard broadly characterizes the condition as requiring

unfettered government access to any employer’s computers, which “effectively

precludes” him from securing any employment, Appellant’s Br. 28, we have already

acknowledged record evidence that the Parole Office is prepared to customize its

monitoring to accommodate employer concerns.           In any event, as also recognized,

Pollard’s claim that computer monitoring precludes him from finding any job is undercut

by his failure to show that he has conferred with any prospective employer, much less


                                              9
that every employer contacted has refused to hire him based on computer monitoring

even after discussing ameliorating possibilities with the Parole Office.

       Accordingly, we conclude that the Commission did not abuse its discretion or act

without a rational basis in imposing the computer monitoring condition.

3.    Conclusion

       We have considered Pollard’s remaining arguments and conclude that they are

without merit. For the reasons stated, the district court’s August 12, 2016 judgment is

AFFIRMED.

                                   FOR THE COURT:
                                   CATHERINE O’HAGAN WOLFE, Clerk of Court




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