INTHE UNITED STATES DIST RICT COURT

 FOR THE EASTERN DISTRICT OF PENNSYLVANIA

 

UNITED STATES OF AMERICA,

 

 v.

STEVEN ROBERTS and DANIEL

MANGINI,

 Defendants.

 CRIMINAL ACTIONS

 No. 04-00037-1 and

 No. 04-00037-2

 

M E M O R A N D U M & O R D E R

Katz, S.J. July 31, 2007

Before the court are “Defendants’ Joint Motion for Reconsideration

of Their Request for Clarification or Modification of the Terms of Supervised

Release” (Document No. 106), the government’s response thereto (Document No.

115), the parties’ proposed findings of fact and conclusions of law and supporting

affidavits (Documents No. 135, 136, 137, 138, and 139), and the arguments and

evidence presented at the hearing on July 31, 2007. For the following reasons,

Defendants’ Joint Motion will be granted, and Defendants will be granted

permission to associate with each other in person and by telephone and mail

(including electronic mail) during their periods of supervised release. Defendants

shall seek separate permission, however, for any change of residence while on

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supervised release. All other conditions of Defendants’ supervised release shall

remain in effect.

I. Findings of Fact

1. In the years preceding 2003, Defendants Steven Roberts and

Daniel Mangini became addicted to and trafficked in methamphetamine. 

2. On December 30, 2003, the government obtained a search warrant

to open a package from Arizona addressed to Defendants’ shared residence. The

package contained more than 100 grams of a substance that tested positive for

methamphetamine. Agents made a controlled delivery of the package and

subsequently executed a search warrant at Defendants’ residence, resulting in the

discovery of a safe containing additional methamphetamine, packaging and

weighing materials, $2,788 in cash, tally sheets for drug sales, and travel

documents to Arizona for both Defendants. 

3. Both Defendants were arrested by federal authorities on December

30, 2003. On January 2, 2004, they were released on bond with multiple

conditions, including the condition that they not leave the Eastern District of

Pennsylvania without permission. Despite this condition, Defendants fled to

Florida, where they were subsequently recaptured by the United States Marshals

Service and returned to the Eastern District of Pennsylvania. 

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4. On January 28, 2004, an indictment was returned charging

Defendants Roberts and Mangini and a co-defendant Peter Pepe with (1)

conspiracy to distribute and possess with intent to distribute methamphetamine,

(2) distribution of methamphetamine, and (3) possession of methamphetamine

with intent to distribute.

5. On May 19, 2004, Defendant Mangini pleaded guilty to Count

One of the indictment, charging him with conspiracy to distribute and possess with

intent to distribute methamphetamine. On May 25, 2004, Defendant Roberts

pleaded guilty to the same offense. In return for their guilty pleas, the government

agreed to dismiss the remaining charges against Defendants Roberts and Mangini.

6. On September 9, 2004, the court sentenced Defendant Mangini to

18 months’ imprisonment, five years of supervised release, and a $100 special

assessment. 

7. On September 10, 2004, the court sentenced Defendant Roberts to

30 months’ imprisonment, five years of supervised release, and a $100 special

assessment.

8. Neither Defendant Roberts nor Defendant Mangini appealed his

conviction or sentence or filed a motion under 28 U.S.C. § 2255.

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9. Defendant Mangini was released from custody on April 29, 2005. 

Defendant Roberts was released from custody on June 29, 2006. Both are

currently under the supervision of Probation Officer John Sanderson of the United

States Probation Office in Reading, Pennsylvania, within the Eastern District of

Pennsylvania.

10. The conditions of supervised release for both Defendants include

Standard Condition No. 9, which provides that each Defendant “shall not associate

with any persons engaged in criminal activity and shall not associate with any

person convicted of a felony, unless granted permission to do so by the probation

officer.”

11. Defendants do not challenge Standard Condition No. 9 on its

face, and do not seek to be exempted from it. Instead, each of them has sought the

permission of the Probation Office, consistent with the condition, to have contact

with the other. 

12. Prior to their arrest at the end of 2003, Defendants lived together

in a committed relationship for 18 years. They made a home together and built a

life together. They supported one another financially, sharing a joint bank

account. They also supported one another emotionally, each caring for the other

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when he was sick, celebrating successes and sharing sorrows. They considered,

and still consider, themselves to be spouses. 

13. Defendants were in every way a family. They even raised a child

together, as Defendant Roberts’s niece was placed with them as a foster child by

the City of Philadelphia Department of Human Services. The relationship

between them was and remains the most significant in each of their lives. 

14. Upon his release from prison in April 2005, with the permission

of the Probation Office, Defendant Mangini moved into the home of Defendant

Roberts’s uncle, where he still resides. Defendants Roberts and Mangini had

planned that Defendant Roberts would move into the same residence when he was

released from prison in late June 2006. When that time came, Defendant Roberts

requested permission for this living arrangement from the United States Probation

Office and was initially told that the arrangement was approved. About a week

before his release, however, Defendant Roberts was told that he could not live

with Defendant Mangini because of the condition of his supervised release that

prohibits him from associating with other convicted felons (i.e., Standard

Condition No. 9). Defendant Roberts made alternative arrangements to live with

his brother. 

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15. The Probation Office denied Defendants Roberts and Mangini’s

subsequent requests for permission to associate with each other. On August 27,

2006, Defendant Roberts wrote to Probation Officer Sanderson’s supervisor,

Charles Donahue. In the letter, Defendant Roberts stated, “I am asking that you

might grant us permission to see and speak to one another and resume living

together based on the fact that we were in a relationship for 18 years prior to our

arrest.” On September 6, 2006, Supervising Probation Officer Donahue denied the

request, stating that “Mr. Mangini has made it clear to Mr. Sanderson that he does

not approve of your request. Furthermore, the U.S. Probation Office’s Standard

Condition No. 9 precludes felons from associating with each other.”

16. On December 14, 2006, counsel for Defendants Roberts and

Mangini wrote a letter to the court, captioned as a Request for Modification of

Conditions of Supervised Release, asking that the conditions of release be

interpreted so as not to forbid them from communicating and associating with each

other for non-criminal purposes. By Orders dated December 18, 2006 (as to

Defendant Mangini) and January 4, 2007 (as to Defendant Roberts), the court

denied Defendants’ letter request. 

17. On January 4, 2007, Defendants Roberts and Mangini filed a

Joint Motion for Reconsideration, with Declarations and an accompanying

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Memorandum of Law. On the same date, the United States Probation Office

submitted a memorandum to the court. In that memorandum, Probation Officer

Sanderson stated that Defendant Mangini had become romantically involved with

another individual since his release from custody, and that Defendant Mangini had

told him that he was not interested in resuming a relationship with Defendant

Roberts. In the memorandum, Officer Sanderson further stated that “[d]ue to the

above-stated information, it is felt that there is no compelling reason as to why

association should be permitted and that the probation office does not want to set

precedent in this case.”

18. On January 23, 2007, the government filed a response to

Defendants’ Joint Motion for Reconsideration (Document No. 115). The

government’s response included the following paragraph:

The Probation Office has advised the government that “blanket

permission” to associate is sometimes granted when the parties are

blood relatives or family members who reside together. According to

the Probation Office, it is their policy not to grant blanket permission

for felons to associate where the felons, regardless of their sexual

preference, are not blood relatives and are not spouses or partners

residing together in a relationship equivalent to or analogous to a

spousal relationship. It is the government’s understanding that the

defendants are being treated by the Probation Office in the same way

that former spouses or estranged spouses would be treated in similar

circumstances. 

Government’s Response at 3–4.

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19. The Probation Office therefore took the position that Defendants

Roberts and Mangini were not in a relationship that would entitle them to blanket

permission to associate. 

20. On January 24, 2007, the court issued a memorandum and order

denying Defendants’ Joint Motion for Reconsideration. 

21. Defendants Roberts and Mangini filed a Joint Notice of Appeal

on February 2, 2007. 

22. After Defendants’ appeal was filed, by stipulation of the parties,

and with the approval of the court, Defendants filed Supplemental Declarations

summarizing the testimony they would have given had a hearing been granted on

their Joint Motion for Reconsideration. In those declarations, Defendants asserted

that they do in fact still consider themselves to be a couple. Defendant Mangini

denied that he was romantically involved with another person and stated that he

was eager to resume his relationship with Defendant Roberts. 

23. Subsequently, at the direction of the Court of Appeals, the parties

met in an effort to clarify the relevant facts. The parties then agreed to the

pertinent facts, which were stated as follows to the Court of Appeals in a letter

dated May 21, 2007:

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All parties now agree and accept that Mr. Mangini and Mr. Roberts

have been for over twenty years and remain, despite the separation

that resulted from their incarceration, committed life partners. From

the moment of their arrest, each has planned and worked toward the

time when they can be reunited. Both men acknowledge that their

relationship suffered from their pre-incarceration drug use and each

has committed himself to recovery from addiction and the rebuilding

of their relationship without that type of destructive influence. Both

are well aware that this rebuilding will take time and talking and care,

in order to ensure that their future is not only loving but also healthy

and long-lasting. The tragedy of Mr. Mangini’s development of

AIDS has further complicated their plans: Mr. Mangini must plan his

life to avoid not only the risk of infection but also the deleterious

effects of stress, which directly and dramatically threaten his day-today health. Because of these factors, Appellants – and particularly

Mr. Mangini – have spoken of the need for them to return to their

relationship in a way that is cautious and extremely protective of Mr.

Mangini’s health. It was Mr. Mangini’s statements about this need

for caution that led the Probation Office to conclude, understandably

but mistakenly, that he did not wish to continue his relationship with

Mr. Roberts. All parties now understand and agree that is not the

case.

Document No. 137, Exhibit 4.

24. On July 9, 2007, the Court of Appeals vacated the court’s

January 24, 2007 Order, and remanded for further proceedings consistent with its

opinion.

25. Specifically, the Third Circuit held that the court has authority,

pursuant to 18 U.S.C. § 3583(e)(2), to consider whether to modify the conditions

of Defendants’ supervised release in light of “the probation office’s refusal to

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grant defendants’ requests to see one another despite their longstanding intimate

relationship.” United States v. Roberts, No. 07-1371, slip op. at 10 (3d Cir. July 9,

2007). The Court continued: “We will therefore instruct the District Court that it

has the authority on remand, under § 3583, to clarify how the probation office may

apply the anti-association condition of defendants’ supervised release.” Id.

26. The Court of Appeals stated that Defendants do not seek to

remove Standard Condition No. 9, but rather to challenge the probation office’s

application of that condition to their particular circumstances. Id. at 11–12. “We

therefore instruct the District Court on remand to address defendants’ actual

request, which is for modification or clarification of the proper application of the

anti-association condition, in light of the probation office’s allegedly unlawful

exercise of its discretion in a manner that violates 18 U.S.C. § 3583(d)(2) and

defendants’ constitutional rights.” Id. at 13–14.

27. Defendants meet with their probation officer regularly and submit

to regular urine tests. These tests have been uniformly negative, indicating an

absence of relapse. Defendant Mangini meets with Mr. Sanderson at home

because of his health. Defendant Mangini has AIDS and became extremely ill

after leaving prison in April 2005. Defendant Roberts sees Mr. Sanderson each

week, provides a urine sample, and reports on his current activities. 

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28. Both Defendants have maintained clean drug testing records

since their release and have otherwise progressed in their rehabilitation and return

to society. Both have undergone drug addiction therapy. Defendant Roberts has

been employed since his release from prison. Defendants’ probation officer has no

complaint about their compliance with the terms of their supervised release. 

29. Defendants repeatedly have sought permission to have varying

degrees of contact with each other, and their requests have been uniformly denied.

30. The prohibition of any association between Defendants has

caused great hardship to them and to their families. Prior to their arrest,

Defendants not only shared their lives but also were treated by their own and each

other’s extended families as a couple which was part of a larger family network. 

Now that they are denied any contact with each other, regardless of the

circumstances, their families must choose whom to invite to family events. In

addition, the now-grown daughter that Defendants raised cannot see her two

fathers together. 

31. The separation imposed is particularly harsh in light of the fact

that Defendant Mangini is fighting AIDS. Defendant Mangini is forbidden from

seeing or even speaking with the person who has been more important to him than

anyone else; the emotional and psychological effect of this separation undermines

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his physical health and causes him great distress. Defendant Roberts wants to be

able to provide comfort and support to the man with whom he shared most of his

life, but is forbidden from contacting Defendant Mangini while knowing that he is

facing the most difficult challenge of his life. Defendant Mangini’s doctor has

advised him to avoid unnecessary stress, yet the separation from Defendant

Roberts enhances his stress. Defendant Roberts will be on supervised release until

June 2011, and he dreads the thought that Defendant Mangini could die of AIDS

before then, without the two having been allowed to resume their relationship. 

32. In practice and as applied by the Probation Office, the prohibition

imposed by Standard Condition No. 9 – although seemingly subject to case-bycase “permission” – has proven absolute. Defendants repeatedly have requested,

and been denied, permission to see one another for a variety of reasons. They are

not even allowed to talk on the telephone. 

33. Defendants do not seek to have Standard Condition No. 9

deleted. Instead, they seek to have the court direct or advise the Probation Office

to either grant blanket permission for them to associate in person and by telephone

and mail (including electronic mail), or at least to begin granting permission for

association on a frequent and routine basis. 

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34. Both Defendants have complied with the terms of their

supervision and appear to be committed to recovery from the drug addiction that

was the predicate for their offenses.

35. The Probation Office has not expressed any concern that

allowing Defendants to associate with one another will increase the likelihood that

they will engage in criminal conduct or otherwise violate the terms of their

supervised release. 

36. The goals of Defendants’ supervised release can reasonably be

achieved without preventing them from associating with each other. Indeed, it

appears that the purposes of their supervised release – especially their

rehabilitation and reintegration into society – would be better served if they were

permitted to resume their relationship.

37. The government and the Probation Office have proposed

allowing Defendants to associate with each other subject to significant restrictions,

but they have offered no evidence that eliminating some or all of these restrictions

is likely to lead to problems. 

II. Conclusions of Law

1. The court applies the following standard in ruling on a motion for

reconsideration: 

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A federal district court will grant a motion for reconsideration based

upon one of three reasons: “(1) an intervening change in controlling

law, (2) the emergence of new evidence not previously available, or

(3) the need to correct a clear error of law or to prevent a manifest

injustice.” Environ Products, Inc. v. Total Containment, Inc., 951 F.

Supp. 57, 62 n.1 (E.D. Pa. 1996); see also Harsco Corp. v. Zlotnicki,

779 F.2d 906, 909 (3d Cir. 1985), cert. denied, 476 U.S. 1171, 106

S.Ct. 2895, 90 L.Ed.2d 982 (1986) (“The purpose of a motion for

reconsideration is to correct manifest errors of law or fact or to

present newly discovered evidence.”).

Gen. Instrument Corp. of Delaware v. Nu-Tek Electronics & Mfg., Inc., 3 F. Supp.

2d 602, 606 (E.D. Pa. 1998). Defendants present newly discovered evidence and

allege clear errors of law in the Orders they are asking the court to reconsider, so

the court will address the merits of Defendants’ arguments.

2. As the Court of Appeals made clear in its July 9, 2007 opinion, the

court’s Orders of December 18, 2006 (Document No. 100 in Civil Action No. 04-

37-2) and January 4, 2007 (Document No. 104 in Civil Action No. 04-37-1),

which denied Defendants’ original Request for Modification of Conditions of

Supervised Release (Document No. 103 in Civil Action No. 04-37-1 and

Document No. 101 in Civil Action No. 04-37-2) constituted clear errors of law. 

The court therefore will grant Defendants’ Joint Motion for Reconsideration of

those Orders in light of the newly discovered evidence presented by Defendants in

connection with this proceeding. 

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3. Upon reconsideration of Defendants’ original Request for

Modification of Conditions of Supervised Release, the court will order the

following:

a. The court’s Orders of December 18, 2006 and January 4,

2007, which denied Defendants’ original Request for Modification of

Conditions of Supervised Release will be vacated; 

b. The United States Probation Office shall permit Defendants

to associate with each other in person and by telephone and mail

(including electronic mail) during their periods of supervised release. 

Defendants shall seek separate permission, however, for any change

of residence while on supervised release; and

c. All other conditions of Defendants’ supervised release shall

remain in effect.

4. As explained below, the court has reached this conclusion through

two lines of reasoning, which represent the court’s alternate holdings. 

5. The court’s first alternate holding is that it is necessary to modify

Standard Condition No. 9 of each Defendant’s supervised release, because this

condition, as applied by the Probation Office in this case, is inconsistent with the

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limitations on conditions of supervised release in 18 U.S.C. § 3583(d) and 18

U.S.C. § 3583(e)(2).

6. The court’s second alternate holding is that it is necessary to

modify Standard Condition No. 9 of each Defendant’s supervised release, because

this condition, as applied by the Probation Office in this case, violates each

Defendant’s rights of intimate association and equal protection, which are

protected by the Due Process Clause of the Fifth Amendment to the United States

Constitution. 

7. Under neither holding is it necessary for Defendants to establish

extraordinary or compelling circumstances in order to obtain the Probation

Office’s permission to associate. 

A. The Court’s First Alternate Holding

8. As the Court of Appeals instructed in its July 9, 2007 opinion, the

court “has the authority on remand, under § 3583, to clarify how the probation

office may apply the anti-association condition of defendants’ supervised release

[i.e., Standard Condition No. 9].” United States v. Roberts, No. 07-1371, slip op.

at 10 (3d Cir. July 9, 2007).

9. Pursuant to 18 U.S.C. § 3583(d), the court may order any

condition of supervised release to the extent that such condition:

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(1) is reasonably related to the factors set forth in section 3553(a)(1),

(a)(2)(B), (a)(2)(C), and (a)(2)(D);

(2) involves no greater deprivation of liberty than is reasonably

necessary for the purposes set forth in section 3553(a)(2)(B),

(a)(2)(C), and (a)(2)(D); and

(3) is consistent with any pertinent policy statements issued by the

Sentencing Commission pursuant to 28 U.S.C. 994(a) . . . .

18 U.S.C. § 3583(d) (2007). The Probation Office’s application of a condition of

supervised release is subject to the same constraints. See United States v. Smith,

445 F.3d 713, 717–18 (3d Cir. 2006).

10. Pursuant to 18 U.S.C. § 3583(e)(2), the court has the authority to

clarify or modify a condition of supervised release after considering the factors set

forth in 18 U.S.C. § 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5),

(a)(6), and (a)(7).

11. The provisions of 18 U.S.C. § 3553(a) enumerated in 18 U.S.C. §

3583(d) and (e)(2) are:

(1) the nature and circumstances of the offense and the history and

characteristics of the defendant;

(2) the need for the sentence imposed – 

. . .

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant;

and

(D) to provide the defendant with needed educational or

vocational training, medical care, or other correctional

treatment in the most effective manner;

. . . 

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(4) the kinds of sentence and the sentencing range established for – 

(A) the applicable category of offense committed by the

applicable category of defendant as set forth in the guidelines – 

(i) issued by the Sentencing Commission pursuant to

section 994(a)(1) of title 28, United States Code, subject

to any amendments made to such guidelines by Act of

Congress (regardless of whether such amendments have

yet to be incorporated by the Sentencing Commission

into amendments issued under section 994(p) of title 28);

and

(ii) that, except as provided in section 3742(g), are in

effect on the date the defendant is sentenced; or

(B) in the case of a violation of probation or supervised release,

the applicable guidelines or policy statements issued by the

Sentencing Commission pursuant to section 994(a)(3) of title

28, United States Code, taking into account any amendments

made to such guidelines or policy statements by act of

Congress (regardless of whether such amendments have yet to

be incorporated by the Sentencing Commission into

amendments issued under section 994(p) of title 28);

(5) any pertinent policy statement – 

(A) issued by the Sentencing Commission pursuant to section

994(a)(2) of title 28, United States Code, subject to any

amendments made to such policy statement by act of Congress

(regardless of whether such amendments have yet to be

incorporated by the Sentencing Commission into amendments

issued under section 994(p) of title 28); and

(B) that, except as provided in section 3742(g), is in effect on

the date the defendant is sentenced.

(6) the need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty of similar

conduct; and

(7) the need to provide restitution to any victims of the offense.

18 U.S.C. § 3553(a) (2007).

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12. These provisions of law require the court to determine the proper

application of Standard Condition No. 9 to Defendants Roberts and Mangini,

taking into account the stipulated facts and other facts found by the court.

13. As noted above, the court, after considering the facts and the

relevant statutory factors and requirements, has concluded that Standard Condition

No. 9 must be modified. Put simply, the Probation Office’s refusal to grant

Defendants permission to associate with each other violates 18 U.S.C. § 3583(d)

and 18 U.S.C. § 3583(e)(2), because the evidence shows that there is no

supervisory need for their continued separation. The court therefore will order the

United States Probation Office to permit Defendants to associate with each other

in person and by telephone and mail (including electronic mail) during their

periods of supervised release; will order Defendants to seek separate permission

for any change of residence while on supervised release; and will leave unchanged

all other conditions of Defendants’ supervised release.

14. The court first will consider the factors and requirements under

18 U.S.C. § 3583(d). The third requirement – i.e., that Standard Condition No. 9

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 The court addressed this point in its January 24, 2007 memorandum and order,

and it adopts the same reasoning here: 

The anti-association condition satisfies the third condition of 18 U.S.C. § 3583(d)

– i.e., that the condition be “consistent with any pertinent policy statements issued

by the Sentencing Commission pursuant to 28 U.S.C. 994(a).” 18 U.S.C. §

3583(d)(3) (2004); see also U.S. SENTENCING GUIDELINES MANUAL § 5D1.3(c)(9)

(2003) (“The following ‘standard’ conditions are recommended for supervised

release: . . . (9) the defendant shall not associate with any persons engaged in

criminal activity, and shall not associate with any person convicted of a felony

unless granted permission to do so by the probation officer.”) (emphasis added). 

It is also worth noting that the anti-association condition is a “condition set forth

as a discretionary condition of probation in section 3563(b)(1) through (b)(10) . . .

.” 18 U.S.C. § 3583(d); see also 18 U.S.C. § 3563(b)(6) (“The court may provide

. . . that the defendant . . . (6) refrain from frequenting specified kinds of places or

from associating unnecessarily with specified persons.”) (emphasis added).

See Document No. 116 at 6 n.1.

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be “consistent with any pertinent policy statements issued by the Sentencing

Commission pursuant to 28 U.S.C. 994(a)” – is satisfied here.1

15. The problem with Standard Condition No. 9 lies with the first

and second requirements under 18 U.S.C. § 3583(d) – i.e., that the condition be

“reasonably related to the factors set forth in section 3553(a)(1), (a)(2)(B),

(a)(2)(C), and (a)(2)(D),” and that it “involve[] no greater deprivation of liberty

than is reasonably necessary for the purposes set forth in section 3553(a)(2)(B),

(a)(2)(C), and (a)(2)(D).” The court noted in its January 24, 2007 memorandum

and order that Standard Condition No. 9 facially satisfies these requirements. As

the Court of Appeals made clear, however, Defendants are not challenging

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 The court will discuss the first and second requirements together, because, at

least in the as-applied context, the analyses they entail overlap significantly.

21

Standard Condition No. 9 facially; rather, they are challenging its application to

them by the Probation Office. With this in mind, there are three reasons why

Standard Condition No. 9, as it has been applied by the Probation Office in this

case, violates the first and second requirements of 18 U.S.C. § 3583(d).2 

16. The first and most important reason is the absence of any

significant risk that Defendants will engage in any criminal or otherwise harmful

conduct if they are permitted to associate with each other. This conclusion is

supported by Defendants’ triumph over their addictions, their genuine desire to

lead law-abiding lives, their complete compliance with the conditions of their

supervised release, and the Probation Office’s apparent belief that their association

will pose no danger to themselves or others. The second reason why Standard

Condition No. 9, as applied by the Probation Office, has become unreasonably

restrictive (and therefore not reasonably related to the statutory factors) is

Defendant Mangini’s health. The evidence shows that Defendant Mangini has

AIDS, and that his physical and emotional well-being would improve if he were

allowed to rebuild his relationship with his life partner, Defendant Roberts. The

evidence also shows that allowing Defendants to associate with each other would

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further Defendant Roberts’s rehabilitation by discouraging him from returning to

the criminal conduct that caused Defendants’ separation. Prohibiting all

association between Defendants therefore contravenes § 3583(d)’s requirements

that Standard Condition No. 9 not be more restrictive than reasonably necessary

and be reasonably related to the need “to provide the defendant . . . with needed

medical care, or other correctional treatment in the most effective manner.” See

18 U.S.C. § 3553(a)(2)(D). The third reason why Standard Condition No. 9, as

applied in this case, has become unreasonably restrictive, is that there appears to

be no further need to deter Defendants themselves from committing further crimes. 

Both have served their prison terms and resumed lives that are as normal as

possible given their inability to associate with each other. Both also have

abandoned the drug addictions that led their offenses in the first place. It is thus

unlikely that they will recidivate. 

17. The court concedes that granting Defendants “blanket

permission” to associate with each other may seem incongruous with the nature

and circumstances of Defendants’ offenses and the need for their sentences to

afford adequate general deterrence to criminal conduct, see 18 U.S.C. §

3553(a)(1), (a)(2)(B), but these concerns are outweighed by the extent to which

Standard Condition No. 9, as applied by the Probation Office in this case, has

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become unhinged from the need for Defendants’ conditions of supervised release

to “protect the public from further crimes of the defendant[s],” to specifically deter

Defendants, and to “to provide the defendant . . . with needed medical care, or

other correctional treatment in the most effective manner.” See 18 U.S.C. §

3553(a)(2)(B), (a)(2)(C), and (a)(2)(D). The court therefore holds that 18 U.S.C. §

3583(d) requires that it modify Standard Condition No. 9.

18. 18 U.S.C. § 3583(e)(2) requires that the court consider the factors

set forth in 18 U.S.C. § 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5),

(a)(6), and (a)(7) before clarifying or modifying a condition of supervised release. 

The court already has considered the factors in 18 U.S.C. § 3553(a)(1), (a)(2)(B),

(a)(2)(C), and (a)(2)(D); the court does not believe that the factors set forth in 18

U.S.C. § 3553(a)(4), (a)(5), (a)(6), and (a)(7) add much to its analysis. The court

is not aware of any guidance in the Sentencing Guidelines or its policy statements

– i.e., the factors set forth in 18 U.S.C. § 3553(a)(4) and (a)(5) – that would aid its

disposition of Defendants’ request. The need to avoid unwarranted sentencing

disparities among similarly situated defendants – i.e., the factor set forth in 18

U.S.C. § 3553(a)(6) – is present in every case, but the court is unsure of what

weight to accord this factor in this case given its inability to locate any precedent

involving same-sex partners who were co-defendants and who sought

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24

modification or clarification of the condition of their supervised release that

prohibited them from associating with each other after having been uniformly

denied permission to associate by the Probation Office. Lastly, the factor set forth

in 18 U.S.C. § 3553(a)(7) – i.e., the need to provide restitution to any victims of

Defendants’ offenses – is inapplicable to this case, where Defendants were

convicted of drug possession and distribution offenses.

19. It is one thing to hold, as the court does, that Standard Condition

No. 9 must be modified pursuant to 18 U.S.C. § 3583(d) and 18 U.S.C. §

3583(e)(2); it is another thing to hold, as the court does, that Defendants should be

granted more or less blanket permission to associate with each other. 

Nevertheless, it is the court’s conclusion that, given the facts of this case, it would

be most consistent with the governing statutory structure for the court to (1) order

the United States Probation Office to permit Defendants to associate with each

other in person and by telephone and mail (including electronic mail) during their

periods of supervised release, (2) order Defendants to seek separate permission for

any change of residence while on supervised release; and (3) leave unchanged all

other conditions of Defendants’ supervised release.

B. The Court’s Second Alternate Holding

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25

20. As stated above, the court’s second alternate holding is that it is

necessary to modify Standard Condition No. 9 of each Defendant’s supervised

release, because this condition, as applied by the Probation Office in this case,

violates each Defendant’s rights of intimate association and equal protection,

which are protected by the Due Process Clause of the Fifth Amendment to the

United States Constitution.

21. The Due Process Clause of the Fifth Amendment to the United

States Constitution protects the right to intimate association. See Lawrence v.

Texas, 539 U.S. 558 (2003); Roberts v. U.S. Jaycees, 468 U.S. 609 (1984); Moore

v. East Cleveland, 431 U.S. 494 (1977); Eisenstadt v. Baird, 405 U.S. 438 (1972). 

In other words, the Due Process Clause protects “highly personal” relationships of

“deep attachment[] and commitment[].” Jaycees, 468 U.S. at 618–20. In

Lawrence, the Supreme Court, overruling Bowers v. Hardwick, 478 U.S. 186

(1986), made it clear that same-sex couples are not excluded from this protection. 

See Lawrence, 539 U.S. at 567 (recognizing that same-sex couples can have

“enduring” “personal bonds”).

22. Given the undisputed evidence that Defendants were committed

life partners for 18 years before their convictions and continue to be devoted to

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26

one another, Defendants have a constitutionally protected liberty interest in their

intimate relationship with each other.

23. A condition of supervised release that interferes, facially or as

applied, with a constitutionally protected relationship may only be upheld if it is

narrowly tailored and directly related to deterring crime and protecting the public. 

See United States v. Loy, 237 F.3d 251, 256 (3d Cir. 2001).

24. The Loy test is harder to satisfy than the statutory tests in 18

U.S.C. § 3583(d) and 18 U.S.C. § 3583(e)(2). 

25. The statutory tests in 18 U.S.C. § 3583(d) and 18 U.S.C. §

3583(e)(2) require that Standard Condition No. 9 be modified, because the

evidence shows that there is no supervisory need for Defendants’ continued

separation.

26. The Probation Office’s refusal to grant Defendants permission to

associate with each other therefore also violates the more demanding Loy test. In

other words, the Probation Office’s exercise of its discretion to prohibit

Defendants’ association where there is no supervisory need to do so is neither

directly related to deterring crime and protecting the public nor narrowly tailored

to achieve those ends. Thus, the Probation Office’s application of Standard

Condition No. 9 to Defendants has violated their right to intimate association.

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27

27. The Probation Office would, as a matter of office policy, allow

Defendants to associate with each other, despite Standard Condition No. 9, if they

were legally married, or if they were siblings, or if one Defendant were a parent

and the other Defendant were his child. 

28. The Probation Office has violated Defendants’ Fifth Amendment

right to equal protection by refusing to grant Defendants permission to associate

with each other, while maintaining a policy of granting such permission to

similarly situated individuals in other kinds of family relationships (i.e., siblings,

parent and child, and spouses). This differential burden on Defendants’

fundamental right to intimate association is subject to heightened scrutiny. See,

e.g., Police Dep’t of the City of Chicago v. Mosley, 408 U.S. 92 (1972). Because

there is no evidence that association between committed same-sex partners will

pose any greater supervisory concern than association between similarly situated

family members, this unequal treatment fails any level of constitutional scrutiny. 

29. Given the facts of this case, it would be most consistent with the

governing statutory structure, applied in light of the above-mentioned

constitutional principles, for the court to (1) order the United States Probation

Office to permit Defendants to associate with each other in person and by

telephone and mail (including electronic mail) during their periods of supervised

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28

release, (2) order Defendants to seek separate permission for any change of

residence while on supervised release; and (3) leave unchanged all other

conditions of Defendants’ supervised release.

An appropriate Order follows. 

Case 2:04-cr-00037-MSG Document 146 Filed 07/31/07 Page 28 of 30
 IN THE UNITED STATES DISTRICT COURT

 FOR THE EASTERN DISTRICT OF PENNSYLVANIA

 

UNITED STATES OF AMERICA,

 

 v.

STEVEN ROBERTS and DANIEL

MANGINI,

 Defendants.

 CRIMINAL ACTIONS

 No. 04-00037-1 and

 No. 04-00037-2

 

O R D E R

AND NOW, this 31st day of July, 2007, upon consideration of

“Defendants’ Joint Motion for Reconsideration of Their Request for Clarification

or Modification of the Terms of Supervised Release” (Document No. 106), the

government’s response thereto (Document No. 115), the parties’ proposed

findings of fact and conclusions of law and supporting affidavits (Documents No.

135, 136, 137, 138, and 139), and the arguments and evidence presented at the

hearing on July 31, 2007, it is hereby ORDERED as follows:

1. Defendants’ Joint Motion is GRANTED;

2. The court’s Orders of December 18, 2006 (Document No. 100 in

Civil Action No. 04-37-2) and January 4, 2007 (Document No. 104 in Civil Action

No. 04-37-1), which denied Defendants’ original Request for Modification of

Conditions of Supervised Release (Document No. 103 in Civil Action No. 04-37-1

and Document No. 101 in Civil Action No. 04-37-2), are VACATED;

Case 2:04-cr-00037-MSG Document 146 Filed 07/31/07 Page 29 of 30
3. Defendants’ original Request for Modification of Conditions of

Supervised Release (Document No. 103 in Civil Action No. 04-37-1 and

Document No. 101 in Civil Action No. 04-37-2) is GRANTED. The United

States Probation Office therefore shall permit Defendants to associate with each

other in person and by telephone and mail (including electronic mail) during their

periods of supervised release. Defendants shall seek separate permission,

however, for any change of residence while on supervised release; and

4. All other conditions of Defendants’ supervised release shall

remain in effect.

BY THE COURT:

/s/ Marvin Katz

 

MARVIN KATZ, S.J.

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