08-6286-cr
United States v. Ayers


                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATIO N TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST 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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 30 th day of March, two thousand ten.

PRESENT:             REENA RAGGI,
                     PETER W. HALL,
                               Circuit Judges,
                     GREGORY W. CARMAN,
                               Judge.*

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UNITED STATES OF AMERICA,
                                 Appellee,

                          v.                                               No. 08-6286-cr

MICHAEL JAMES AYERS,
                                 Defendant-Appellant.
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APPEARING FOR APPELLANT:                          JAMES P. EGAN, Research & Writing Specialist
                                                  (Lisa A. Peebles, First Assistant Public Defender,
                                                  on the brief), for Alexander Bunin, Federal Public
                                                  Defender for the Northern District of New York,
                                                  Syracuse, New York.



          *
        Judge Gregory W. Carman of the United States Court of International Trade, sitting
by designation.
APPEARING FOR APPELLEE:                    GWENDOLYN CARROLL, Assistant United
                                           States Attorney (Thomas P. Walsh, Assistant
                                           United States Attorney, on the brief), for Andrew
                                           T. Baxter, United States Attorney for the Northern
                                           District of New York, Syracuse, New York.

       Appeal from the United States District Court for the Northern District of New York

(Thomas J. McAvoy, Judge).

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

DECREED that the judgment entered on February 13, 2009, is AFFIRMED.

       Defendant Michael James Ayers, presently serving a ten-year term of supervised

release following 60 months’ incarceration on his 2004 conviction for receipt of child

pornography, see 18 U.S.C. § 2252A(a)(2)(A), (B), appeals from an order modifying the

conditions of his supervision to include polygraph and computerized voice-stress

examinations. We assume the parties’ familiarity with the facts and procedural history,

which we reference only as necessary to explain our decision to affirm.

       In general, a district court may impose a special condition of supervised release so

long as the condition (1) 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); (2)

“involves no greater deprivation of liberty than is reasonably necessary” to achieve these

purposes of sentencing; and (3) “is consistent with any pertinent policy statements issued by

the Sentencing Commission.”        18 U.S.C. § 3583(d)(1)-(3); see also United States v.

MacMillen, 544 F.3d 71, 74-75 (2d Cir. 2008) (recognizing district court’s “wide latitude”

in imposing supervised release conditions).       Ayers does not dispute that the ordered

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examinations satisfy the first and third statutory requirements. He contends that the condition

violates the second requirement because the district court’s failure to prohibit the use of the

examination results in any subsequent civil commitment proceeding under 18 U.S.C. § 4248

effects a greater deprivation of liberty than is warranted by the legitimate objects of

supervision.

       1.      Jurisdiction

       The United States submits that Ayers’s appeal is not ripe for review.               The

constitutional requirement of ripeness derives from Article III’s limitation of federal

jurisdiction to live cases or controversies. See U.S. Const. art. III, § 2; United States v.

Johnson, 446 F.3d 272, 278 (2d Cir. 2006). To demonstrate ripeness, Ayers must assert “a

direct and immediate impact” from the challenged condition. United States v. Johnson, 446

F.3d at 279 (internal quotation marks omitted); see also Simmonds v. INS, 326 F.3d 351, 358

(2d Cir. 2003).

       Here, Ayers submits that, absent restrictions on the use of information obtained

through polygraph or voice-stress testing, he will be forced to choose between refusing to

undergo testing at the risk of having his supervised release revoked and submitting to testing

at the risk of providing information that could be used to effect his civil commitment. The

government responds that the possibility of Ayers’s civil commitment is too remote because

the law provides for such commitment only for persons already in custody. See 18 U.S.C.

§ 4248(a). For Ayers to be reordered to custody, he would have to violate the conditions of



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his supervision or be convicted of some other crime, events that might never occur. See

United States v. Johnson, 446 F.3d at 279 (observing that challenge generally lacks ripeness

if it concerns issues that might never arise). The government overlooks the fact that the

injury Ayers asserts on this appeal is not possible commitment but the mandate that he

provide information that could support such commitment. In Johnson, we held that a Fifth

Amendment challenge to a supervised release condition requiring polygraph testing was ripe

when the condition was imposed because it presented the defendant with the present dilemma

of invoking his right against self-incrimination at the risk of release revocation or of

revealing misconduct that could support a future prosecution. Id. For reasons discussed in

the next section, Ayers’s objection to providing evidence that might be used in a commitment

proceeding is not supported by the Fifth Amendment or any other legal authority. That

failing, however, goes to the merit of his claim, not its ripeness. It is not the prosecution or

commitment that must be imminent to demonstrate ripeness, but the challenged disclosure

of information.

       Because Ayers’s appeal is ripe, we proceed to exercise jurisdiction over his claim.

       2.     The Challenged Condition Does Not Impermissibly Intrude on a Liberty
              Interest

       In determining whether a condition of supervised release imposes an unnecessary

deprivation of liberty, “we must first identify the cognizable liberty interest with which the

condition interferes.” United States v. Reeves, 591 F.3d 77, 82 (2d Cir. 2010) (internal

quotation marks omitted). As noted, Ayers does not raise a general liberty challenge to the

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use of polygraph testing. Nor does he question our conclusion in Johnson that such testing

can further the legitimate sentencing goals of rehabilitation and deterrence without imposing

an excessive deprivation of liberty. See 446 F.3d at 278. His sole challenge is to the district

court’s failure to prohibit the use of testing results in any future civil commitment

proceedings.

       The absence of such a prohibition does not intrude on a cognizable liberty interest.

The Self-Incrimination Clause of the Fifth Amendment is expressly limited to “any criminal

case.” U.S. Const. amend. V; see United States v. Ward, 448 U.S. 242, 248 (1980).

Moreover, federal regulations contemplate that civil commitment decisions will be based on

all available relevant evidence. See generally 28 C.F.R. § 549.90(c) (“In determining

whether a person is a sexually dangerous person and should be so certified, the Bureau [of

Prisons] will consider any available information in its possession . . . .”).

       Ayers nevertheless suggests that because no statutory or constitutional provision

expressly bars the use of the ordered examination results during civil commitment

proceedings, the district court was required to provide such protection to ensure that the

condition did not reach farther than required by legitimate sentencing concerns. The

argument misunderstands the nature of the relevant inquiry under 18 U.S.C. § 3583(d)(2),

which focuses on the unnecessary deprivation of liberty as reflected in an existing right. See

United States v. Johnson, 446 F.3d at 280 (upholding supervised release condition of

mandatory polygraph testing because condition did not impair later invocation of defendant’s



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Fifth Amendment privilege against self incrimination); United States v. Myers, 426 F.3d 117,

125 (2d Cir. 2005) (examining whether condition barring visitation “interfered with

[defendant’s] constitutionally protected liberty interest in his relationship with his child”).

Here, nothing in the challenged supervised release condition deprives Ayers of existing

protections available in a civil commitment proceeding, including the right to challenge the

use, reliability, and probative value of any statements made by him during supervised release

testing. See 18 U.S.C. § 4247(d) (describing procedural protections afforded during civil

commitment hearing).

       Moreover, the use of supervised release testing results in civil commitment

proceedings is hardly unrelated to the sentencing goals of deterrence, public safety, and

rehabilitation, given the commitment statute’s focus on (1) protecting the public from people

who “would have serious difficulty in refraining from sexually violent conduct or child

molestation if released,” 18 U.S.C. § 4247(a)(6); and (2) providing treatment for such people,

see id. § 4248(d), (e). Finally, the challenged supervised release condition does not make

Ayers’s test results generally available. Indeed, it requires a court order for disclosure of test

information beyond the United States Probation Department, thereby affording the court and

the parties the flexibility to address the propriety of particular disclosures as circumstances

warrant.

       Under these circumstances, we identify no merit in Ayers’s legal claim that, without

a limitation on the use of test information in commitment proceedings, the testing condition



                                                6
of his supervised release violated 18 U.S.C. § 3583(d)(2). See United States v. Reeves, 591

F.3d at 80 (providing for de novo review of legal challenge to supervised release condition).

Having identified no legal error, we conclude that the district court did not abuse its

discretion in imposing this condition. See United States v. MacMillen, 544 F.3d at 74.

       We have considered Ayers’s remaining arguments on appeal and conclude that they

lack merit. Accordingly, we AFFIRM the judgment of the district court.

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




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