17

‐ 2841

‐ cr

United States v. Washington



## In the 1 

# United States Court of Appeals

2



## for the Second Circuit 3

4

5

6

A UGUST T ERM 2017 7

8

No. 17

‐ 2841

‐ cr 9

10

U NITED S TATES OF A MERICA

, 11

Appellee

, 12

13

v. 14

15

B RIAN W ASHINGTON

, a/k/a B RIAN E. W ARD

, a/k/a B RIAN K. W ARD

, 16

a/k/a B RIAN E. W ASHINGTON

, a/k/a B RIAN E UGENE W ASHINGTON

, a/k/a 17

B RIAN W ARD

, a/k/a E UGENE B RIAN W ARD

, 18

Defendant

‐ Appellant

. 19

20

21

On Appeal from the United States District Court 22

for the Southern District of New York 23

24

25

A RGUED : A UGUST 15, 2018 26

D ECIDED : S EPTEMBER 18, 2018 27

28

292 Before: C ABRANES and P OOLER

, Circuit Judges

, and O ETKEN

, District 1

Judge

. * 2

3

Defendant

‐ Appellant Brian Washington (“Washington”) 4

appeals the sentence imposed for his conviction on a charge of failure 5

to register as a sex offender in violation of 18 U.S.C. § 2250. On appeal, 6

Washington argues that the United States District Court for the 7

Southern District of New York (George B. Daniels, Judge ) unlawfully 8

modified his sentence by including in the written judgment a duty to 9

submit to polygraph testing that was not mentioned during 10

pronouncement of sentence. We hold that inclusion of a duty to submit 11

to polygraph testing is, in the circumstances presented here, an 12

impermissible modification of the spoken sentence. We REMAND the 13

cause to the District Court for entry of an amended judgment from 14

which the reference to polygraph testing has been deleted. 15

16

J ACOB W ARREN

, Assistant United States 17

Attorney (Anna M. Skotko, Assistant United 18

States Attorney, on the brief ), for Geoffrey S. 19

Berman, United States Attorney for the 20

* Judge J. Paul Oetken, of the United States District Court for the Southern

District of New York, sitting by designation.3 Southern District of New York, New York, 1

NY, for Appellee

. 2

3

A LLEGRA G LASHAUSSER

, Appeals Bureau, 4

Federal Defenders of New York, Inc., New 5

York, NY, for Defendant

‐ Appellant

. 6

7

J OSE A. C ABRANES

, Circuit Judge : 8

Defendant

‐ Appellant Brian Washington (“Washington”) 9

appeals the sentence imposed for his conviction on a charge of failure 10

to register as a sex offender in violation of 18 U.S.C. § 2250. On appeal, 11

Washington argues that the United States District Court for the 12

Southern District of New York (George B. Daniels, Judge ) unlawfully 13

modified his sentence by including in the written judgment a duty to 14

submit to polygraph testing that was not mentioned during 15

pronouncement of sentence. We hold that inclusion of a duty to submit 16

to polygraph testing is, in the circumstances presented here, an 17

impermissible modification of the spoken sentence. We REMAND the 18

cause to the District Court for entry of a modified written judgment 19

from which the reference to polygraph testing has been deleted. 20

I. 21

This appeal arises from a discrepancy between the terms of 22

sentence that the District Court pronounced in Washington’s presence 234 at the sentencing hearing and the terms of sentence that the District 1

Court entered in its written judgment. 2

Washington’s sentence includes a five

‐ year term of supervised 3

release. In the Presentence Investigation Report (“PSR”) prepared 4

before sentencing and reviewed by all parties, including the 5

defendant, the United States Probation Office recommended that the 6

District Court impose the usual mandatory and standard conditions 7

and several special conditions for the term of supervised release. One 8

proposed special condition required Washington to participate in a 9

sex

‐ offender

‐ treatment program and to comply with all the rules of the 10

program, “including submission to polygraph testing.” PSR at 24, 11

United States v. Washington

, No. 1:16

‐ cr

‐ 00628

‐ GBD (S.D.N.Y. July 27, 12

2017), ECF No. 21. The entire proposed special condition ran as 13

follows: 14

You must undergo a sex

‐ offense

‐ specific evaluation and 15

participate in an outpatient sex offender treatment and/or 16

outpatient mental health treatment program approved by 17

the U.S. Probation Office. You must abide by all rules, 18

requirements, and conditions of the sex offender 19

treatment program(s), including submission to polygraph 20

testing

. You must waive your right of confidentiality in 21

any records for mental health assessment and treatment 22

imposed as a consequence of this judgment to allow the 23

probation officer to review your course of treatment and 24

progress with the treatment provider. You must 25

contribute to the cost of services rendered based on your 265 ability to pay and the availability of third

‐ party 1

payments. The Court authorizes the release of available 2

psychological and psychiatric evaluations and reports, 3

including the presentence investigation report, to the sex 4

offender treatment provider and/or mental health 5

treatment provider. 6

Id. (emphasis added). 7

The District Court imposed this special condition at 8

Washington’s sentencing hearing, together with all the other 9

mandatory, standard, and special conditions of supervised release that 10

the PSR had recommended. But the District Court stated the sex

‐ 11

offender

‐ treatment special condition more briefly than the PSR had. 12

Omitted, among other things, was any explicit reference to polygraph 13

testing. The District Court instead stated the condition in these terms: 14

The defendant also must undergo a sex

‐ offense

‐ specific 15

evaluation and participate in an outpatient sex offender 16

treatment and/or outpatient mental health treatment 17

program approved by the United States Probation Office. 18

Transcript at 23, Washington (Oct. 16, 2017), ECF No. 27. 19

After pronouncement of sentence, the District Court restated the 20

sex

‐ offender

‐ treatment special condition in a written judgment. The 21

special condition as restated in the judgment runs longer than the 22

version of the condition at the hearing. It is, however, identical in all 23

material respects to the version of the condition proposed in the PSR. 246 In particular, it includes the PSR’s language—omitted from the spoken 1

sentence—imposing a duty of “submission to polygraph testing.” The 2

entire written special condition reads: 3

Defendant shall undergo a sex

‐ offense

‐ specific evaluation 4

and participate in an outpatient sex offender treatment 5

and/or outpatient mental health treatment program 6

approved by the United States Probation Office. 7

Defendant shall abide by all rules, requirements, and 8

conditions of the sex offender treatment program(s), 9

including submission to polygraph testing

. Defendant shall 10

waive his right of confidentiality in any records for 11

mental health assessment and treatment imposed as a 12

consequence of this judgment to allow the probation 13

officer to review your course of treatment and progress 14

with the treatment provider. Defendant shall contribute 15

to the cost of services rendered based on his ability to pay 16

and the availability of third

‐ party payments. The Court 17

authorizes the release of available psychological and 18

psychiatric evaluations and reports, including the 19

presentence investigation report, to the sex offender 20

treatment provider and/or mental health treatment 21

provider. 22

Judgment at 5 (emphasis added), Washington (Sept. 8, 2017), ECF No. 23

25. 247 Counsel for the defense had reviewed the PSR—which 1

contained the language imposing the polygraph requirement—with 2

Washington before sentencing, but Washington did not object at 3

sentencing to the PSR’s recommendations of special conditions. 4

Washington now appeals seeking deletion of the duty to submit 5

to polygraph testing from his written sentence. 6

7

II. 8

A. 9

We review de novo the asserted discrepancy between the 10

spoken and written terms of Washington’s sentence. It is a question of 11

law whether the spoken and written terms of a defendant’s sentence 12

differ impermissibly. United States v. Jacques

, 321 F.3d 255, 262 (2d Cir. 13

2003). In principle, we review an issue of law for plain error when the 14

defendant has failed to raise the issue in the district court. See United 15

States v. Sofsky

, 287 F.3d 122, 125 (2d Cir. 2002) (relaxing the “rigorous 16

standards of plain error review” to correct an unobjected

‐ to sentencing 17

error of which the defendant did not have advance notice). But when 18

the point of law on appeal is a term of the defendant’s sentence and 19

the defendant lacked prior notice in the district court that the term 20

would be imposed, we will review the issue de novo even if the 21

defendant failed to raise an objection in the district court. See id. at 125– 22

26. Washington’s objection satisfies these conditions. Although not 23

raised in the District Court, the objection concerns his sentence, and it 24

concerns a matter about which he lacked advance notice. Washington 258 knew in advance, from reviewing the PSR with his lawyer, that the 1

District Court might include a polygraph

‐ testing requirement in his 2

conditions of supervised release. But he could not have known before 3

issuance of the written judgment that the District Court would include 4

polygraph testing in the written version of his sentence after omitting 5

any mention of it from the spoken version. 6

B. 7

The Federal Rules of Criminal Procedure provide that a 8

defendant must be present at pronouncement of sentence. Fed. R. 9

Crim. P. 43(a)(3). Accordingly, after a sentence has been pronounced, 10

the written judgment may clarify the terms of the spoken sentence, see 11

United States v. Truscello

, 168 F.3d 61, 63 (2d Cir. 1999), but if there is a 12

substantive discrepancy between the spoken and written versions of a 13

defendant’s sentence, the spoken version ordinarily controls, United 14

States v. Rosario

, 386 F.3d 166, 168–69 (2d Cir. 2004). We have derogated 15

from this general rule and allowed a written modification of the 16

spoken sentence only in cases in which the modification added a 17

condition of supervised release classified as “mandatory,” 18

“standard,” or “recommended” in United States Sentencing 19

Guidelines sections 5D1.3(a), (c), and (d) or added mere “basic 20

administrative requirements that are necessary to supervised release.” 21

Rosario

, 386 F.3d at 169 (internal quotation marks omitted). 22

We conclude here that the written judgment’s additional 23

language requiring “submission to polygraph testing” is an 24

impermissible modification of the spoken sentence. Polygraph testing 259 can be onerous for a defendant, who may feel at risk of incriminating 1

him

‐ or herself. It is also not a necessary or invariable part of sex

‐ 2

offender treatment. Many district judges require polygraph testing as 3

part of the sex

‐ offender

‐ treatment condition in at least some cases. See 4

generally Migdalia Baerga

‐ Buffler & James L. Johnson, Sex Offender 5

Management in the Federal Probation and Pretrial Services System

, 70 Fed. 6

Prob. 13 (2006); Michael Palmiotto & Scott MacNichol, Supervision of 7

Sex Offenders: A Multi

‐ Faceted and Collaborative Approach

, 74 Fed. Prob. 8

27 (2010). But we learned at oral argument that some district judges, 9

including some judges in the district courts of this Circuit, never allow 10

it. 11

III. 12

In summary, we hold that, in the circumstances presented here, 13

inclusion of a duty of “submission to polygraph testing” in 14

Washington’s written sentence constituted an impermissible 15

modification of the spoken sentence, from which those words were 16

omitted, because polygraph testing is burdensome to the defendant 17

and not a necessary or invariable component of sex

‐ offender 18

treatment. 19

The cause is REMANDED to the District Court for entry of an 20

amended judgment from which the words “including submission to 21

polygraph testing” have been deleted. 22