                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   May 19, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 08-2176
 v.
                                               (D.C. No. 1:07-CR-805-JCH-1)
                                                          (D.N.M.)
 FRANCISCO L. MATTESON,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before BRISCOE, EBEL, and GORSUCH, Circuit Judges.


      In May 2005, New Mexico authorities arrested Francisco Matteson for

defrauding various banks. Mr. Matteson admits that he stole mail in order to

obtain personal information and bank account numbers belonging to at least

eighty-nine people. Using this stolen information along with his personal

computer and other equipment perhaps belonging to another individual, Mr.

Matteson produced counterfeit checks that he sold for cash. Under an agreement

with the government, Mr. Matteson pled guilty to one count of possession of

stolen mail, 18 U.S.C. § 1708, and another count of bank fraud, 18 U.S.C.


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
§ 1344(1)-(2). The district court sentenced him to thirty-three months’

imprisonment followed by a three year term of supervised release.

      This appeal concerns one of the special conditions of supervised release

imposed by the district court. The district court is invested with broad discretion

to prescribe such conditions, subject to the limitations imposed by law, including

18 U.S.C. § 3583(d). United States v. Hanrahan, 508 F.3d 962, 970 (10th Cir.

2007). Section 3583(d) requires, among other things, that any special condition

be reasonably related to certain factors set out in 18 U.S.C. § 3553(a), including

“the nature and circumstances of the offense and the history and characteristics of

the defendant,” as well as three purposes of punishment: deterring criminal

conduct, protecting the public, and providing the defendant with training, medical

care, and other correctional treatment. 18 U.S.C. § 3583(d)(1); id. § 3553(a)(1),

(a)(2)(B)-(D). The condition must also “involve[] no greater deprivation of

liberty than is reasonably necessary” to achieve those three purposes. Id.

§ 3583(d)(2).

      In our case, the challenged condition provides that

      [t]he defendant shall consent, at the direction of the United States
      Probation Officer, to having installed on his/her computer(s), any
      hardware or software systems to monitor his/her computer use. The
      defendant understands that the software may record any and all activity
      on his/her computer, including the capture of keystrokes, application
      information, Internet use history, e-mail correspondence, and chat
      conversations. Monitoring will occur on a random and/or regular basis.
      The defendant further understands that he/she will warn others of the


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      existence of the monitoring software placed on his/her computer or any
      such computer [to which] the defendant may have access.

D. Ct. Judgment at 4 (emphasis added).

      Before us, Mr. Matteson argues that this condition is problematic in two

respects. First, he claims that the condition (in particular, the italicized language)

is impermissibly vague. Second, he contends that the level of monitoring

authorized (down to the last keystroke) is too intrusive to comply with § 3583(d)

or the Fourth Amendment. Because Mr. Matteson raised neither argument to the

district court, normally our review would be for plain error.

      In this case, however, the government has commendably conceded Mr.

Matteson’s first, vagueness argument. In light of this concession, “the question

of whether we apply plain error review” with respect to that argument is not

“trigger[ed].” United States v. White, 244 F.3d 1199, 1207 n.11 (10th Cir. 2001).

As counsel for the government rightly pointed out in a letter to us, it is unclear

from the terms of the district court’s condition whether that court intended to

authorize the government to monitor not just Mr. Matteson’s computer, but also

any other computer to which he might have access. The first part of the district

court’s condition authorizes monitoring only on “his[] computer(s).” By contrast,

the last sentence of the court’s condition imposes an obligation on Mr. Matteson

to “warn others” that the monitoring software has been placed on his computer

“or any such computer [to which] the defendant may have access.” As the


                                         -3-
government acknowledges, it is possible that the district court did not mean to

require monitoring of any computers beyond those owned by Mr. Matteson. See

United States’ Letter of March 19, 2009, at 2. But it is also possible that the

district court intended in the final words of the condition to expand the number of

monitored computers. Indeed, the government submits this is the more plausible

reading of the district court’s intentions for two reasons: first, the alternative

renders the last eleven words of the special condition superfluous; second, the

evidence in this case suggested a need to encompass more than just computers

belonging to Mr. Matteson because he “committed the offense using both his own

computer and a borrowed computer.” Id. In any event, both sides before us agree

a remand is necessary to clear this up.

      While conceding Mr. Matteson’s first argument about the vagueness of the

district court’s condition, the government nonetheless urges us to reject Mr.

Matteson’s second argument, at least in part. Specifically, the government asks

us to affirm keystroke monitoring of those computers owned by Mr. Matteson,

arguing that such a requirement would not offend § 3583(d)(2)’s requirement of

impinging no more than is reasonably necessary on Mr. Matteson’s liberty.

      We think the better course in this particular case is to defer resolution of

this question until after remand. It may be that the district court wishes keystroke

monitoring to apply only to computers owned by Mr. Matteson, while other

computers Mr. Matteson uses (such as those owned by an employer) are subject

                                          -4-
either to no monitoring at all or to some other, less intrusive and as yet

unspecified form of monitoring. But, again, it could be the intent of the condition

to require keystroke monitoring of all computers Mr. Matteson uses, not just

those he owns. And it is difficult to evaluate the propriety of the district court’s

keystroke monitoring requirement as a whole without first knowing to which

computers it pertains; what might be sustainable in isolation might become

unsustainable when the condition is viewed as a whole. Underscoring this is the

fact that the government itself has suggested not only that the district court most

likely wished its condition to apply to any computer Mr. Matteson might access,

but also that, if the keystroke monitoring requirement does pertain so broadly, it

is “too broad” for us to sustain. United States’ Letter of March 19, 2009, at 2.

Rather than evaluating this case piecemeal, and doing so based on hunches about

the district court’s intentions and what might ultimately prove sustainable, we

believe the district court should have a chance in the first instance to think

comprehensively about which conditions it wishes to impose, if any, on which

computers. After the district court’s evaluation, the case may look very different

than our assumptions now suggest.

      Our decision to wait for the district court’s evaluation in the first instance

is also influenced by the fact that determining the boundaries of permissible

computer monitoring has vexed several of our sister circuits, and our circuit has

not yet issued comparable guidance. Compare United States v. Sales, 476 F.3d

                                         -5-
732, 737-38 (9th Cir. 2007) (vacating computer monitoring as not narrowly

tailored); United States v. Lifshitz, 369 F.3d 173, 192-93 (2d Cir. 2004) (vacating

and remanding computer monitoring condition to permit district court to evaluate

potential overbreadth in the first instance), with United States v. Goddard, 537

F.3d 1087, 1090-91 (9th Cir. 2008) (monitoring condition valid if narrowly

construed); United States v. Holm, 326 F.3d 872, 879 (7th Cir. 2003) (random

searches of probationer’s computer “entirely reasonable”). Before weighing in on

this weighty subject for the first time, we would no doubt benefit not just from a

clearer understanding of what we are being asked to review, but also from the

district court’s considered views on how its conditions mesh with and are tailored

to both § 3583(d)(2)’s requirements and the Fourth Amendment.

      The challenged condition of supervised release requiring computer

monitoring is vacated in its entirety, and the case is remanded for further

proceedings consistent with this order.


                                       ENTERED FOR THE COURT



                                       Neil M. Gorsuch
                                       Circuit Judge




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