   18‐832
   United States v. Maggese

                          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 29th day of August, two thousand nineteen.

   PRESENT:
                  PETER W. HALL,
                  DEBRA ANN LIVINGSTON,
                       Circuit Judges,
                  JANE A. RESTANI,
                       Judge.*


   UNITED STATES OF AMERICA,

                         Appellee,

                  v.                                                      No. 18-832-cr

   JOHN MAGGESE,

                         Defendant-Appellant.




   For Defendant-Appellant:                      JAY S. OVSIOVITCH, Federal Public
                                                 Defender’s Office, Western District of New
                                                 York, Rochester, NY.


   *Judge Jane A. Restani, of the United States Court of International Trade, sitting by
   designation.
For Appellee:                              TIFFANY H. LEE, Assistant United States
                                           Attorney, for James P. Kennedy, Jr.,
                                           United States Attorney for the Western
                                           District of New York, Rochester, NY.

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

District of New York (Geraci, C.J.).

      UPON      DUE     CONSIDERATION,           IT    IS   HEREBY       ORDERED,

ADJUDGED, AND DECREED that the district court’s judgment is AFFIRMED.

      Defendant John Maggese appeals from a March 21, 2018 judgment of the

United States District Court for the Western District of New York, revoking his

supervised release and sentencing him to six months’ imprisonment followed by three

years of supervised release. On appeal, Maggese challenges two special conditions of

his supervised release. The first (“Treatment” condition), requires him to “participate

in a sex offense-specific treatment program and follow the rules and regulations of

that program” with Probation “supervis[ing] the details of the defendant’s

participation in the program, including the selection of a provider and schedule.”

App’x 72.   The second (“Testing” condition), calls for Maggese to “submit to a

polygraph, computerized voice stress analyzer testing not to exceed twice in the

calendar year, and an additional two retests per year, as needed.” App’x 66. Maggese

argues that the first condition is impermissibly vague and that the second condition

is not reasonably related to the purposes of sentencing. We assume the parties’

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

      In 2007, Maggese was convicted of one count of possession of child

pornography, in violation of 18 U.S.C. §2252A(a)(5)(B) and sentenced to 48 months’


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imprisonment to be followed by ten years’ supervised release.           As part of his

conditions of his supervised release Maggese was required “to enroll, attend, and

participate in mental health intervention specifically designed for the treatment of

sexual offenders as approved by the U.S. Probation Office.” App’x 13.

        On March 12, 2018, Maggese admitted he had violated the terms of his

supervised release because he had been discharged from mental health treatment

due to his “deceptive and high-risk behaviors,” including viewing pornographic

material and watching the Little League World Series and religious shows to view

children as a stimulation for masturbation. App’x 23, 58. He was subsequently

sentenced to six months’ imprisonment followed by three years’ supervised release.

As part of his supervised release, the district court imposed several special conditions

of release, including the Treatment and Testing conditions.

   I.      The Treatment Condition

        We review for abuse of discretion the district court’s imposition of a condition

of supervised release. United States v. Peterson, 248 F.3d 79, 82 (2d Cir. 2001). In so

doing, we will determine that a district court has exceeded the bounds of its discretion

“if it based its ruling on an erroneous view of the law or a clearly erroneous

assessment of the evidence.” Id. (internal quotation marks omitted). Maggese asserts

that the Treatment condition is impermissibly vague because it “does not explain how

the probation officer will supervise Mr. Maggese’s participation in the program and

what responsibilities exist beyond the selection of a treatment provider and




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scheduling.” Brief for Appellant at 26. His argument is unavailing. The district court

did not impermissibly delegate its judicial authority to the Probation Office.

         The power to impose special conditions of supervised release is vested

exclusively in the district court. 18 U.S.C. § 3583; U.S.S.G. § 5D1.3(b)-(e). A district

court may delegate to a probation officer decisionmaking authority over certain minor

details of supervised release. Peterson, 248 F.3d at 85. A district court, however, “may

not delegate to the Probation Department decisionmaking authority which would

make a 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). “In other words,

the extensive supervision mission of federal probation officers includes executing the

sentence, but not imposing it.” Id.

         Here, the Treatment condition complained of makes clear that treatment is

mandatory. It states Maggese “must participate in a sex offense-specific treatment

program and follow the rules and regulations of that program.” App’x 72 (emphasis

added). Probation was merely given the discretion to decide administrative aspects

of the treatment such as the “selection of a provider and [the] schedule.” Id. The

condition mandating treatment is permissible.

   II.      The Testing Condition

         Maggese’s argument that the Testing condition is not reasonably related to the

purposes of sentencing because computerized voice stress analysis is unreliable is

without merit. Although Maggese expressly argues for the first time on appeal that

the Testing condition is not reasonably related to the purposes of sentencing, this was



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the clear implication of his challenge to the testing. We conclude that the district

court properly imposed the condition.

      As an initial matter, Maggese’s insistence that we must vacate the court’s

judgment because there is a conflict between the written special condition and the

court’s oral pronouncement is wrong.         We have previously held, and Maggese

concedes, see Brief for Appellant at 37, that “[i]nsofar as there is a variance between

the written and oral conditions, the District Court’s oral pronouncement controls.”

United States v. Young, 910 F.3d 665, 670 (2d Cir. 2018); see also United States v.

Washington, 904 F.3d 204, 208 (2d Cir. 2018). At oral argument Maggese’s counsel

conceded that resentencing was not needed to simply insert “or” where it was

intended in the oral pronouncement.

      Generally, a district court may impose a special condition of supervised release

so long as the condition, among other things, is “reasonably related” to the nature of

the offense and to the goals of deterrence, rehabilitation, and public safety described

in 18 U.S.C. § 3553(a). 18 U.S.C. § 3583(d)(1)-(3). We have held that “the incremental

tendency of polygraph testing to promote . . . candor” from a defendant “furthers the

objectives of sentencing by allowing for more careful scrutiny of offenders on

supervised release.” United States v. Johnson, 446 F.3d 272, 277 (2d Cir. 2006).

Acknowledging the potential unreliability of polygraph testing, we explained in

Johnson that the polygraph can still “deter lying . . . because of the subject’s fear that

it might work, or be credited by others whether it works or not.” Id. Although the

court in Johnson dealt with the issue of polygraph testing and here we are asked to



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address the use of computerized voice stress analysis, the principles underlying

Johnson apply equally in this case.

      Here, it is hard to distinguish Maggese’s challenge from the defendant’s

argument in Johnson; Maggese’s core argument with respect to the computerized

voice stress analyzer is practically identical to the defendant’s assertion in Johnson

about polygraph testing—that its purported unreliability precludes the court from

finding it is reasonably related to the purposes of sentencing. Maggese’s violations of

the terms of his supervised release indicate he was engaging in “deceptive and high-

risk behaviors” and that polygraph or computerized voice stress analyzer testing

would “help penetrate deception and encourage [Maggese] to confront his own

motivations and behaviors.” Johnson, 446 F.3d at 278. That testing was not intended

to be used to build a case against Maggese; rather, it was meant to help Maggese’s

progress in treatment. While counsel did state that he had researched the reliability

of computerized voice stress analyzers, he did not proffer evidence of unreliability to

the district court demonstrating that computerized voice stress analyzers are so less

reliable than polygraph testing that they have no therapeutic use. Thus, we have no

record to review on this point.

      We have considered Maggese’s remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the district court’s judgment.

                                        FOR THE COURT:
                                        Catherine O’Hagan Wolfe, Clerk of Court




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