19-268-cr
United States v. Casey Dill


                                  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 August, two thousand twenty.

PRESENT:             ROBERT D. SACK,
                     DENNY CHIN,
                     JOSEPH F. BIANCO,
                                         Circuit Judges.
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UNITED STATES OF AMERICA,
                    Appellee,

                                        -v-                                                19-268-cr

CASEY DILL,
                                        Defendant-Appellant.

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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, New York.
FOR DEFENDANT-APPELLANT:                            JAY S. OVSIOVITCH, Assistant Federal
                                                    Public Defender, for Marianne Mariano,
                                                    Federal Public Defender for the Western
                                                    District of New York, Rochester, New
                                                    York.


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

New York (Wolford, J.).

              UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

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

              Defendant-appellant Casey Dill appeals from a judgment of the district

court entered January 22, 2019 convicting him, following a guilty plea, of one count of

possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), and

sentencing him principally to 48 months' imprisonment and ten years of supervised

release with special conditions of supervision. Dill challenges three special conditions

of his supervised release: (1) the probation officer's supervision of his mental health and

sex offender treatment programs; (2) aspects of the requirement that he submit to

computer monitoring; and (3) the notification of risk condition (as revised by the

standing order issued by the Western District of New York) permitting the probation

officer to require Dill to notify third parties about the risk of additional criminal

conduct. 1 Specifically, Dill argues that the conditions improperly delegate the district


1       The judgment entered on January 11, 2019 contained the then-standard notification of
risk provision. On January 25, 2019, this Court held that this standard notification of risk
condition was too vague and afforded too much discretion to the probation officer. See United
States v. Boles, 914 F.3d 95, 111-12 (2d Cir. 2019). On March 22, 2019, the Western District of

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court's authority to the probation officer. We assume the parties' familiarity with the

underlying facts, procedural history, and issues on appeal.

               We review a district court's imposition of conditions of supervised release

for abuse of discretion. See United States v. Boles, 914 F.3d 95, 111 (2d Cir. 2019). "When

a challenge to a condition of supervised release presents an issue of law, however, we

review the imposition of that condition de novo, bearing in mind that any error of law

necessarily constitutes an abuse of discretion." Id. (internal quotation marks omitted).

Where an objection was not raised in the district court, we review for plain error. See

United States v. Hendricks, 921 F.3d 320, 326 (2d Cir. 2019). We may use our discretion to

correct the unpreserved error "only where the appellant demonstrates that (1) there is

an error; (2) the error is clear or obvious . . . ; (3) the error affected the appellant's

substantial rights . . . ; and (4) the error seriously affects the fairness, integrity or public

reputation of the judicial proceedings." United States v. Gasperini, 894 F.3d 482, 487 (2d

Cir. 2018) (internal quotation marks and alterations omitted). At sentencing, Dill

challenged the condition relating to supervision of his treatment, and so we review this

challenge for abuse of discretion. See Boles, 914 F.3d at 111. Because Dill failed to

challenge the other conditions in the district court, however, we review them for plain

error. See Hendricks, 921 F.3d at 326. We consider each challenge in turn.



New York issued an order "amend[ing] the Judgment and Commitment order in all criminal
cases in which a term of probation or supervised release is imposed by removing the standard
‘risk’ condition and replacing it" with revised language. Appellant's Br. at 49.

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I.     Supervision of Dill's Mental Health and Sex Offender Treatment

              "The power to impose special conditions of supervised release . . . is

vested exclusively in the district court." United States v. Matta, 777 F.3d 116, 122 (2d Cir.

2015). While the "district court 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," it "may delegate to a probation officer

decisionmaking authority over certain minor details of supervised release -- for

example, the selection of a therapy provider or treatment schedule." Id.

              Further, an individual on supervised release has a "diminished

expectation of privacy." United States v. Reyes, 283 F.3d 446, 471 (2d Cir. 2002). We have

held that a waiver of therapeutic confidentiality permitting a probation officer access to

a defendant's mental health treatment records "well may advance [a defendant's]

treatment," could "reasonably further public safety," and is not an abuse of discretion.

United States v. Dupes, 513 F.3d 338, 344-45 (2d Cir. 2008).

              Dill argues that the condition providing that "[t]he probation officer will

supervise the details of any testing and treatment, including the selection of a provider

and schedule," is an improper delegation of the district court's authority because it gives

the probation officer unfettered discretion in supervising his treatment. J. App'x at 94.

We are unpersuaded. Entrusting a probation officer with authority to oversee "minor

details" of supervised release, including selecting the "therapy provider" and setting the


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"treatment schedule," is not an improper delegation. Matta, 777 F.3d at 122; see also

United States v. Young, 910 F.3d 665, 671-72 (2d Cir. 2018) (holding no improper

delegation where district court unambiguously holds that treatment is mandatory but

leaves details of treatment to discretion of Probation Department).

               Dill further argues that permitting the probation officer to "access his

treatment records" violates his privacy interests in his treatment and treatment records. 2

Appellant's Br. at 17. The argument fails. We have previously upheld a condition of

supervised release requiring a defendant to waive confidentiality of records relating to

his sex offender treatment in the interest of public safety. See Dupes, 513 F.3d at 344-45.

As in Dupes, here we do not find that allowing a probation officer access to records

"seriously affect[s] the fairness, integrity or public reputation of the judicial

proceedings." Id. at 345. Accordingly, we find that the district court did not abuse its

discretion when it imposed the condition authorizing the probation officer to "supervise

the details" of Dill's treatment. J. App'x at 94.

II.    Computer Monitoring

               Dill argues that the special condition imposing monitoring requirements

on his computer usage is an improper delegation of the district court's authority,



2       In passing, the district court seemed to say that the probation officer could attend Dill's
therapy sessions. The district court appeared, however, to be entertaining the notion as a
hypothetical matter and, in any event it did not include in the written judgment authorization
for the probation officer to attend Dill's therapy sessions. We do not construe the judgment as
authorizing the probation officer to do so.

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making his liberty contingent on the probation officer's exercise of discretion, as well as

an infringement of his First Amendment rights. We disagree.

              While we have held that "citizens have a First Amendment right to access

the Internet," United States v. Eaglin, 913 F.3d 88, 96 (2d Cir. 2019), we have also held that

a defendant may be required, in certain circumstances, to submit to a computer

monitoring program, see United States v. Browder, 866 F.3d 504, 512 (2d Cir. 2017).

              Here, the condition in question provides that "[Dill] shall not use or

possess any computer . . . unless [he] participates in the Computer and Internet

Monitoring Program (CIMP), or unless authorized by the Court or the U.S. Probation

Office." J. App'x at 94. The operative deprivation of liberty -- a restriction on computer

usage -- is ordered by the district court, not the probation officer. See Matta, 777 F.3d at

122. Moreover, while a probation officer may grant Dill access to a computer, Dill can

also gain access by participation in the CIMP or by authorization from the district court.

Thus, the condition in question does not constitute an improper delegation of the

district court’s authority.

              Dill further argues that requiring him to pay the cost of monitoring

services infringes on his First Amendment right to access and communicate on the

internet because he may be unable to pay such costs. Dill argues that although prior to

his arrest he earned $70,000 a year as an engineer, his employment options after his

release are unknown. The record is, however, silent as to how much monitoring would


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cost, and Dill provides no guidance even as to a range of costs. Because "the record

before us did not establish [that the cost of monitoring would be prohibitive] as a matter

of fact," we need not reach whether the condition is "illegitimate as a matter of law."

Brooklyn Legal Servs. Corp. v. Legal Servs. Corp., 462 F.3d 219, 232 (2d Cir. 2006), abrogated

on other grounds by Bond v. United States, 564 U.S. 211 (2011). And if circumstances

should change such that the cost of monitoring were to become prohibitive, Dill can

always return to the district court to request a modification of the condition.

Accordingly, we find no plain error in the district court's imposition of the condition.

III.   Notification of Risk Requirement

              Dill argues that the risk notification condition, even as amended by the

standing order, gives the probation officer too much discretion in determining who

should be notified about a risk Dill may pose. This argument is, however, unripe. See

United States v. Traficante, No. 18-1962, 2020 WL 4032220, at *5 (2d Cir. July 17, 2020)

(declining to rule on challenge to third-party risk notification condition, as amended by

standing order, noting that "while it could be argued that the standing order

contemplates vesting the probation officer with a degree of discretion that is

inconsistent with our holding in Boles, such a challenge . . . [is] unripe, since the

ostensibly improper delegation may never actually occur"). Accordingly, we decline to

reach this challenge.

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             We have considered Dill's remaining arguments and conclude they are

without merit. For the foregoing reasons, we AFFIRM the judgment of the district

court.

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




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