9TH CIRCUIT COURT OF APPEALS NO. CA 97-503-65 U.S.D.C. NO CR 95-603-MRP IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Case No. CA 97-503-65 CR 95-603-MRP Plaintiff/Appellee, vs. KEVIN DAVID MITNICK,Defendant/Appellant. APPELLANT'S OPENING BRIEF APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA Honorable Mariana R. Pfaelzer, United States District Judge DONALD C. RANDOLPH RANDOLPH & LEVANAS 1717 Fourth Street, Third Floor Santa Monica, CA 90401 Telephone: 310/395-7900 Attorneys for Defendant-Appellant TABLE OF CONTENTS I. STATEMENT OF ISSUES PRESENTED FOR REVIEW 1 A. DID THE DISTRICT COURT IMPOSE CONDITIONS OF SUPERVISED RELEASE IN VIOLATION OF LAW ? 1 B. DID THE DISTRICT COURT IMPOSE OCCUPATIONAL RESTRICTIONS AS A RESULT OF AN INCORRECT APPLICATION OF THE SENTENCING GUIDELINES? 1 C. DID THE DISTRICT COURT UNDERSTAND THAT IT HAD DISCRETION TO AMELIORATE THE DRUG TESTING REQUIREMENT? 1 II. STATEMENT OF JURISDICTION 2 III. STATEMENT OF THE CASE 2 A. NATURE OF THE CASE 2 B. COURSE OF THE PROCEEDINGS 2 C. DISPOSITION IN THE COURT BELOW AND BAIL STATUS OF DEFENDANT 3 D. STATEMENT OF FACTS RELEVANT TO THE ISSUES PRESENTED FOR REVIEW 3 IV. SUMMARY OF ARGUMENT 6 V. ARGUMENT AND STANDARD OF REVIEW 7 A. THE DISTRICT COURT IMPOSED CONDITIONS OF SUPERVISED RELEASE IN VIOLATION OF LAW. 7 1. The Imposed Conditions are not Reasonably Related to Legitimate Sentencing Purposes 8 2. The Restrictions Involve a Greater Deprivation of Liberty than is Reasonably Necessary to Achieve Statutory Purposes. 14 3. The Restrictions Violate Appellant's Constitutional Due Process Rights. 19 B. THE OCCUPATIONAL RESTRICTIONS IMPOSED BY THE DISTRICT COURT EVIDENCE AN INCORRECT APPLICATION OF THE SENTENCING GUIDELINES 23 1. The District Court Did Not Find that a Reasonably Direct Relationship Existed Between the Defendant's Occupation, Business, or Profession and the Conduct Relevant to the Offense of Conviction. 25 2. The Imposed Occupational Restrictions are not Reasonably Necessary to Protect the Public from Similar Unlawful Conduct. 27 3. The Occupational Restrictions were not Imposed to the Minimum Extent Necessary to Protect the Public 29 4. The Imposed Conditions are so Severe as to Constitute Impermissible Punishment. 30 C. IT IS UNCLEAR WHETHER THE DISTRICT COURT UNDERSTOOD THAT IT HAD DISCRETION TO AMELIORATE THE DRUG TESTING REQUIREMENT. 31 VI. CONCLUSION 33 TABLE OF AUTHORITIES STATUTES 18 U.S.C. 1029 2, 3, 25 18 U.S.C. 3553 6-9, 18, 30, 31 18 U.S.C. 3563 31 18 U.S.C. 3583 7, 8, 14, 18, 21-23, 28, 30, 31 18 U.S.C. 3742 7 28 U.S.C. 1291 2 CASES ACLU v. Reno, 929 F.Supp 824, 883 (E.D.P.A. 1996) 16 Bernstein v. United States Dept. of State, 922 F.Supp. 1426 (N.D.C.A. 1996) 13 Reno v. American Civil Liberties Union, __U.S.__ , 117 S.Ct. 2329 (1997) 15, 16 Schneider v. State (Town of Irvington), 308 U.S. 147, 163, 84 L.Ed. 155, 60 S.Ct. 146 (1939) 19 United States v. Christopher, 700 F.2d 1253, 1258 (9th Cir.), cert. denied, 461 U.S. 960, 77 L.Ed. 2d 1321, 103 S.Ct. 2436 (1983) 20 United States v. Consuelo-Gonzalez, 521 F.2d 259 (9th Cir. 1975) 14 United States v. Eyler, 67 F.3d 1386 (9th Cir. 1995) 8, 15 United States v. Felix, 994 F.2d 550 (8th Cir. 1993) 22 United States v. Fitzgerald, 882 F.2d 397, 398 (9th Cir. 1989) 20, 23 United States v. Furukawa, 596 F.2d 554 (9th Cir. 1979) 10 United States v. Higdon, 627 F.2d 893 (9th Cir. 1980) 11 United States v. Holloway, 740 F.2d 1373 (6th Cir. 1984) 9, 12, 15 United States v. Hutchinson, 22 F.3d 846, 853, (9th Cir. 1993) 7 United States v. Kohl, 972 F.2d 294, 297 (9th Cir. 1992) 7 United States v. Lam, 20 F.3d 999 (9th Cir. 1994) 32 United States v. Malone, 502 F.2d 554 (9th Cir. 1974) 10 United States v. Mills, 959 F.2d 516, (5th Cir. 1992) 31 United States v. Petersen, 98 F.3d 502, 506 (9th Cir. 1996) 7 United States v. Robinson, 94 F.3d 1325, 1327 (9th Cir. 1996) 23 United States v. Romero, 676 F.2d 406 (9th Cir. 1982) 10, 11 United States v. Terrigno, 838 F.2d 371, 374 (9th Cir. 1988) 7 FEDERAL SENTENCING GUIDELINES Federal Sentencing Guidelines 5F1.5 24-26, 28-30 LEGISLATIVE MATERIALS S. Rep. No. 225, 98th Cong., 2d Sess. 125, reprinted in 1984 U.S. Code Cong. Ad. News 3182 14 I. STATEMENT OF ISSUES PRESENTED FOR REVIEW A. DID THE DISTRICT COURT IMPOSE CONDITIONS OF SUPERVISED RELEASE IN VIOLATION OF LAW ? 1. Whether the Imposed Conditions Reasonably Related to Applicable Sentencing Purposes. 2. Whether the Imposed Conditions Were Reasonably Necessary to Achieve Applicable Sentencing Objectives. B. DID THE DISTRICT COURT IMPOSE OCCUPATIONAL RESTRICTIONS AS A RESULT OF AN INCORRECT APPLICATION OF THE SENTENCING GUIDELINES? 1. Whether There Was a Reasonably Direct Relationship between the Appellant's Occupation and the Conduct Relevant to the Offense of Conviction. 2. Whether the Occupational Restrictions are Reasonably Necessary to Protect the Public from Similar Unlawful Conduct in the Future. 3. Whether the Occupational Restrictions were Imposed to the Minimum Extent Necessary to Protect the Public. 4. Whether the Occupational Restrictions Constitute Impermissible Punishment. C. DID THE DISTRICT COURT UNDERSTAND THAT IT HAD DISCRETION TO AMELIORATE THE DRUG TESTING REQUIREMENT? II. STATEMENT OF JURISDICTION This Court has jurisdiction over this case pursuant to 28 U.S.C.  1291. The Notice of Appeal in this matter was filed within ten days after entry of judgment. [ER 89] Thus, pursuant to Rule 4(b) of the Federal Rules of Appellate Procedure, CA 97-503-65 was timely filed. III. STATEMENT OF THE CASE A. NATURE OF THE CASE. Defendant-Appellant Kevin Mitnick appeals the district court's imposed conditions of supervised release. [ER at 89] B. COURSE OF THE PROCEEDINGS. On February 15, 1995, Kevin Mitnick was arrested by law enforcement agents and charged in the Eastern District Court of North Carolina. On March 9, 1995, Mr. Mitnick was indicted on twenty-three counts of fraud and related activity in connection with unauthorized access devices pursuant to 18 U.S.C.  1029. [ER 1-3] On July 5, 1995, the United States of America, by and through the Assistant United States Attorney for the Eastern District of North Carolina, and Mr. Mitnick and entered into a plea agreement in which Mr. Mitnick agreed to plead guilty to Count two of the Indictment. Accordingly, the government agreed to dismiss counts one and three through twenty-three of the indictment. [ER 7] The plea agreement further provided that conduct occurring or resulting in effects outside the Eastern District of North Carolina would not be considered as relevant conduct in determining the defendant's applicable guideline range. [ER 8] On April 1, 1996, the Mr. Mitnick was arraigned in the Central District of California following a transfer of the case from the Eastern District of North Carolina pursuant to Federal Rules of Criminal Procedure Rule 20. [Clerk's Record, 3; ER 100] On June 27, 1997, Mr. Mitnick was sentenced to 8 months imprisonment followed by three year term of supervised release pursuant to the conditions subject to this appeal. [ER 86-88] C. DISPOSITION IN THE COURT BELOW AND BAIL STATUS OF DEFENDANT The district court imposed a total sentence of 8 months for the violation subject to this appeal. [ER 86] Mr. Mitnick has served his full custodial term and is now in custody without bail on charges not relevant to this appeal. D. STATEMENT OF FACTS RELEVANT TO THE ISSUES PRESENTED FOR REVIEW On March 9, 1995, Mr. Mitnick was charged in a multi-count indictment with unauthorized possession and use of access codes in order to unlawfully obtain telecommunications services in violation of Title 18 U.S.C.  1029. [ER 1-3] On July 5, 1995, Mr. Mitnick entered into a plea agreement with the government whereby he agreed to plead guilty to Count two of the indictment. [ER 4] Under the terms of this agreement, relevant conduct for the purposes of sentencing on this Count was limited to that occurring or resulting in effects within the Eastern District of North Carolina. [ER 8] On April 22, 1996, Mr. Mitnick pleaded guilty to count two of the indictment. [RT 4/22/96, 6-7; ER 15-16] On June 27, 1997, Mr. Mitnick was sentenced on this charge. [RT 4/22/96, 3-7; ER 86-88] At sentencing Mr. Mitnick received 8 months in custody, followed by three years of supervised release pursuant the conditions which form the basis for this appeal. The objectionable conditions include the following: 1. Absent prior express written approval from the Probation Officer, the appellant "shall not possess or use, for any purpose, the following: a. any computer hardware equipment; b. any computer software programs; c. modems; d. any computer related peripheral or support equipment; e. portable laptop computer, 'personal information assistants,' and derivatives; f. cellular telephones; g. televisions or other instruments of communication equipped with on-line, internet, world-wide web or other computer network access; h. any other electronic equipment, presently available or new technology that becomes available, that can be converted to or has as its function the ability to act as a computer system or to access a computer system, computer network or telecommunications network (except defendant may possess a 'land line' telephone; 2. The defendant shall not be employed in or perform services for any entity engaged in the computer, computer software, or telecommunications business and shall not be employed in any capacity wherein he has access to computers or computer related equipment or software; 3. The defendant shall not access computers, computer networks or other forms of wireless communications himself or through third parties; 4. The defendant shall not acts as a consultant or advisor to individuals or groups engaged in any computer related activity; 5. The defendant shall not acquire or possess any computer codes (including computer passwords), cellular phone access codes or other access devices that enable the defendant to use, acquire, exchange or alter information in a computer or telecommunications database system; 6. The defendant shall not use any data encryption device, program or technique for computers; 7. The defendant shall not alter or possess any altered telephone, telephone equipment or any other communications related equipment. [ER 86-88] IV. SUMMARY OF ARGUMENT The conditions of supervised release imposed by the district court are in violation of law because: they are not reasonably related to legitimate sentencing purposes as set forth in Title 18 U.S.C. 3553(a); they involve a greater deprivation of liberty than is reasonably necessary for applicable sentencing purposes as required under 18 U.S.C. 3553; they are unreasonably vague resulting in violations of Mr. Mitnick's constitutional due process rights. Furthermore, the imposed occupational restrictions are the result of an incorrect application of the sentencing guidelines. The restrictions are improper because: first, they do not bear a reasonably direct relationship to the conduct constituting the offense in this case; second, they are not reasonably necessary to protect the public; third, they were not drawn to the minimum extent necessary to protect the public; and fourth, they constitute impermissible punishment. Finally, the imposition of the drug testing requirements should be vacated and remanded since it is unclear whether the district court understood that it had discretion to ameliorate this condition. V. ARGUMENT AND STANDARD OF REVIEW A. THE DISTRICT COURT IMPOSED CONDITIONS OF SUPERVISED RELEASE IN VIOLATION OF LAW. Standard of Review Generally, a defendant's sentence is reviewed for abuse of discretion. United States v. Hutchinson, 22 F.3d 846, 853, (9th Cir. 1993) as amended, and as amended on denial of rehearing and reh. en banc; United States v. Kohl, 972 F.2d 294, 297 (9th Cir. 1992). A district court abuses its discretion by definition when it makes an error of law. United States v. Petersen, 98 F.3d 502, 506 (9th Cir. 1996). The district court's factual findings at sentencing are reviewed for clear error. Id.; 18 U.S.C. 3742(e). Argument Title 18 U.S.C. 3583 enumerates various options available to a court in sentencing a defendant to supervised release. Apart from those conditions expressly listed, subsection (d) allows a court to order additional "discretionary" conditions. 18 U.S.C. 3583(d). For the most part, a sentencing judge has broad authority in setting the conditions of supervised release. United States v. Terrigno, 838 F.2d 371, 374 (9th Cir. 1988). Nonetheless, certain requirements must be met before discretionary conditions may be imposed upon a defendant. First, discretionary conditions must be "reasonably related" to the factors set forth in 3553(a)(1) (consideration of nature and circumstances of the offense and history and characteristics of the defendant); (a)(2)(B) (to afford adequate deterrence to criminal conduct); (a)(2)(C) (to protect the public from further crimes of the defendant); and (a)(2)(D) (to provide the defendant with needed training, medical care, or other correctional treatment in the most effective manner). 18 U.S.C. 3583(d)(1). Secondly, discretionary conditions must involve no greater deprivation of liberty than is "reasonably necessary" for the latter three purposes. 18 U.S.C. 3583(d)(2). Finally, discretionary conditions must be consistent with pertinent policy statements of the Sentencing Commission. 18 U.S.C. 3583(d)(3). The aforementioned considerations are not mere suggestions but rather mandatory requirements in imposing sentence. 18 U.S.C. 3553. Moreover, this Circuit has held that "any discretionary condition must meet each of the three broad conditions set forth in 18 U.S.C. 3583(d)," [emphasis in original]. United States v. Eyler, 67 F.3d 1386 (9th Cir. 1995). In the instant case, the district court has imposed oppressive conditions which fail to comply with the mandatory criteria to which they are subject. 1. The Imposed Conditions are not Reasonably Related to Legitimate Sentencing Purposes The district court has imposed conditions of supervised release so broad that they cannot be considered reasonably related to the purposes of sentencing referenced in 18 U.S.C. 3583(d)(1). Rather than promote these legitimate objectives, the conditions set forth in this case eschew the statute's express language. The restrictions here at issue unquestionably prevent a wide range of activities wholly removed from legitimate sentencing considerations. 18 U.S.C. 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D). The district court's restrictions are obtuse and, consequently, impermissible because they seek to achieve the purposes of sentencing by strictly regulating the tools the appellant may use rather than the nature of the conduct in which he may engage. In drawing an analogy, it is almost inconceivable that any court could reasonably prohibit a defendant convicted of mail fraud from utilizing the United States Postal Service, nor a defendant convicted of wire fraud from possessing or using a telephone- even if these communications systems facilitated the offense of conviction. See, infra, discussion of United States v.Holloway, 740 F.2d 1373 (6th Cir. 1984). Similarly, no court could reasonably prohibit an individual convicted of interstate transportation of stolen goods from using interstate highways. The infrastructure utilized in such crimes simply does not bear a reasonable relationship to the illegitimacy of the conduct which the court seeks to deter. Moreover, the utility of these tools for legitimate purposes is too great to justify a total prohibition based on the mere potential for a particular misuse. Nonetheless, the district court here imposed just such a ban on computers and communications devices, even where unrelated to the offense of conviction. Affirmation of these restrictions would set a dangerous precedent for the future exercise of First Amendment rights at the very dawn of the Information Age. The district court's order will serve to severely restrict the appellant's freedom of association with all individuals who communicate via the Internet. Past cases have upheld a district court's ability to restrict a defendant's association with particular individuals or groups. United States v. Romero, 676 F.2d 406 (9th Cir. 1982) (restricting probationer's right to associate with persons involved with drugs); United States v. Furukawa, 596 F.2d 554 (9th Cir. 1979) (restricting probationer from associating with those apparently involved in criminal activities); United States v. Malone, 502 F.2d 554 (9th Cir. 1974) (probationer, an overzealous supporter of the Irish Republican movement, prohibited from association with Irish organizations). Significantly, these conditions only sought to limit the defendant's association with specific groups of people likely to encourage the defendant to engage in criminal behavior. Malone, 502 F.2d 554, 556. Such focused associational restrictions can reasonably be considered related to the purposes of sentencing since they are directed towards deterring particular criminal behavior. The restrictions imposed in the instant case, on the other hand, seek to prohibit the defendant's expression and associations irrespective of character. Although narrowly tailored restrictions on a defendant's associational rights have been effectively used by other courts, (see supra, discussion of, Romero, 676 F.2d 406; Furukawa, 596 F.2d 554; Malone, 502 F.2d 554) the district court in this case expressly refused to focus the scope of its restrictions in a similar fashion. [RT 6/23/97, 9-10; ER 42-43] Upon the government's suggestion that the court prohibit the defendant-appellant from associating with other individuals engaged in or known to have been engaged in computer or telecommunications fraud, the court summarily replied, "too hard to enforce." [RT 6/23/97 at 9; ER 42] The court also rejected a suggestion to prohibit the appellant from participating in conferences devoted to computer hacking and telecommunications fraud with an identical response. [RT 6/23/97 at 10; ER 43] Thus, rather than limit the restrictions to the type of conduct it sought to curtail, the court prohibited an entire spectrum of conduct in which it had no legitimate interest on the justification that the targeted conduct was included somewhere therein. The resulting restrictions are so broad-based as to be essentially arbitrary. Consequently, they cannot be said to reasonably related the purposes of sentencing in this case. United States v. Higdon, 627 F.2d 893, 898 (9th Cir. 1980), (needlessly harsh conditions were not reasonably related to rehabilitation of offender or protection of the public.) The restriction will not only limit the appellant's associational rights, but also the legitimate exercise of expressive rights via all forms of computer communications. At least one analogous case has duly rejected a similarly universal restriction on the freedom of expression. In United States v. Holloway, 740 F.2d 1373 (1984), the Sixth Circuit examined and struck down a prohibition comparable to some of those at issue in this appeal. In Holloway, the defendant, who used the mails in the course of committing her crime, was convicted of conspiracy and filing false tax returns. She appealed from a sentencing condition which provided that she could "communicate by mail only with her relatives, legal counsel and other recognized counselors" during the period of her incarceration. Holloway, 740 F.2d 1373, 1383. The court noted that, on its face, the restriction would forbid the defendant from "writing letters to a wide range of persons who had nothing to do with her criminal conduct." Id. In rejecting the validity of the sentence, the court explained that the condition was "simply not carefully drawn" to serve the objectives of sentencing. Rather, the district imposed a restriction "which because of its breadth, does not bear a logical relationship to the criminal conduct in which [the defendant] has engaged." Id. Consequently, the court held that the restriction was not "reasonably related" to achieving the purposes of sentencing in this case. Id. Similarly, the prohibitions here at issue are not carefully drawn to serve the objectives of sentencing. Because of their overreaching breadth, they likewise do not bear a rational relationship to the criminal conduct (the possession of unauthorized access codes) in which the defendant has engaged. To illustrate the unreasonableness of the sentence, some of the activities in which the defendant would be prohibited from engaging include the following: - sending a letter to his Senator via e-mail or with the assistance of a word processor; - playing a video arcade game; - calling his family on a cellular telephone; - working as a computer printer repairman; - writing any type of computer software program; - accessing a public library's computerized card catalog. Surely, restrictions on these activities cannot be considered reasonably related to promoting any legitimate sentencing objectives. 2. The Restrictions Involve a Greater Deprivation of Liberty than is Reasonably Necessary to Achieve Statutory Purposes. While general conditions of supervised release must merely be "reasonably related" to their statutory ends, those restrictions affecting any liberty interest must be reasonably necessary to achieve such purposes. 18 U.S.C. 3583(d)(2). Congress' consistent choice of the word "necessary" in the context of restricting liberty interests demonstrates its intention that no such condition be imposed unless it is indispensable. 18 U.S.C. 3553(a), 3583(d). Furthermore, where the restricted liberties include fundamental rights, an especially stringent standard of review applies. United States v. Consuelo-Gonzalez, 521 F.2d 259 (9th Cir. 1975), (conditions restricting otherwise inviolable constitutional rights subject to "special scrutiny"), at 265; Terrigno, 838 F.2d 371, 374, (district court's discretion is "reviewed carefully" where the conditions restrict fundamental rights). Because the conditions fail the "reasonably related" test, they fail a fortiori to satisfy the reasonably necessary requirement. Eyler, 67 F.3d 1386, 1394. Irrespective of this truth, the restrictions must be considered unlawful because they prohibit a wide range of fundamental liberties without necessity. Terrigno, 838 F.2d 371, 374 ("if conditions are drawn so broadly that they unnecessarily restrict otherwise lawful activities they are impermissible.") Through its order restricting the appellant's communicative capabilities, the district court has unquestionably impinged on his First Amendment freedoms of expression and association. United States v. Holloway, 740 F.2d 1373, 1383 (6th Cir. 1984) cert. denied, 105 S.Ct. 440, (limitations on defendant's ability to communicate by writing letters affected principles at the core of the First Amendment). The severe abridgement of the defendant's constitutionally guaranteed rights of expression and association in this case cannot be underestimated. Communication via computer networks and their derivatives is rapidly transforming the very nature of human interaction in our society. The Supreme Court, in Reno v. American Civil Liberties Union, __U.S.__ , 117 S.Ct. 2329 (1997), recently remarked at length on the profound effect the Internet and similar communications networks have already had on the exercise of our First Amendment rights. In striking down regulations governing the content available on this ubiquitous network, the Supreme Court called the Internet "a unique and wholly new medium of worldwide human communication." Reno, __U.S.__, 117 S.Ct. 2329, 2334. The Court explained that, "anyone with access to the Internet may take advantage of a wide variety of communication and information retrieval methods" which can be "used to transmit text...sound, pictures, and moving video images." __U.S.__, 117 S.Ct. 2329, 2334. The Court continued by declaring, "it is no exaggeration to conclude that the content on the Internet is as diverse as human thought," [emphasis added]. Id. at 2335, 2344. In addition to the unique qualities of information available through the Internet, the Supreme Court recognized the rapidly increasing pervasiveness of this network as a means of communication. The Court concluded that "the Internet can hardly be considered a 'scarce' expressive commodity" noting "it provides relatively unlimited, low-cost capacity for communication of all kinds." Id. at 2344. In terms of sheer numbers, the Government currently estimates as many as 40 million people use the Internet today, and that figure is expected to reach 200 million by 1999. Id. In summary, the Supreme Court dubbed the network the "most participatory form of mass speech yet developed." Id. at 2340 (quoting ACLU v. Reno, 929 F.Supp 824, 883 (E.D.P.A. 1996). In light of the profound implications of the Internet and other computer networks on the exercise of our First Amendment rights, as duly appreciated by the Supreme Court, there can be little question that the scope of the imposed restrictions is exceedingly overbroad in this case. Disappointingly, however, the district court made no valid attempt to narrowly tailor these restrictions or otherwise avoid unnecessary restraint on appellant's liberties. [RT 6/27/97, 10; ER 58] Rather, in an act of seemingly blind faith, the district court transferred full authority over the appellant's constitutionally guaranteed rights to the unfettered discretion of the probation office. [RT 6/27/97 at 6-12; ER 54-60]. The authority granted to the probation office is an apparently well-intentioned, though seriously flawed, attempt by the district court to imbue reasonableness into its own over-inclusive restrictions. Despite the court's expressed intent to preserve the appellant's rights, the plain language of its order sanctions impermissible overreaching. The district court demonstrated the shortcomings of its own sentence as it explained: "If the person who is doing the supervision decides that this particular [computer] activity is satisfactory and does not pose a threat to the community, then the supervisor may go on and permit him to engage in it. If the person who is conducting the supervision believes that it is too difficult to decide, that supervisor may write the Court a letter...and I will then answer. There isn't any need to argue about what we are taking about here," [emphasis added]. [RT 6/27/97, 6; ER 54] Contrary to the district court's remarks, there is indeed good cause for argument. The flaw in both the language of the district court's sentencing order and the logic supporting it lies in the fact that the court grants discretion to the probation officer over liberty interests legally insulated from its own discretion. As previously explained, in order to restrict fundamental liberties, the court has a mandatory antecedent duty to determine that the restrictions are necessary in their entirety. 18 U.S.C. 3553, 3583(d). This responsibility is not discretionary and cannot be delegated to the probation office. Id. Thus, to be proper, the district court's language would have to read as follows: "at the time of sentencing, if the court decides a particular activity is satisfactory and does not pose a threat, then the court must go on and permit him to engage in it." The illegality of the imposed conditions is not cured by granting the probation office discretionary power to restore rights which cannot lawfully be abridged in the first place. The government may represent that the restrictions on the appellant's First Amendment rights are relatively unburdened in this case since he will be free to use more traditional means of communication such as a "land line" telephone and the mails. Such an argument would be inapposite. The fact that the appellant may, in some cases, have the ability to utilize tools or means of communications which partially substitute for those prohibited him cannot remove the illegal taint inherent in these conditions. The Supreme Court held as much in Schneider v. State (Town of Irvington), 308 U.S. 147, 163, 84 L.Ed. 155, 60 S.Ct. 146 (1939). In Schneider, the Supreme Court addressed a prohibition on an individual's right to distribute leaflets on public streets. The Court rejected an argument that the statute was, in fact, constitutional since the affected individuals maintained the right to publish the material by other means. In so rejecting this logic, the Court held that "one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place." Schneider, 308 U.S. 147, 163, 84 L.Ed. 155, 60 S.Ct. 146 (1939). Similarly, the government cannot properly argue that restrictions on the appellant's otherwise lawful expression through computers or related networks is permissible by virtue of the fact that he will retain the right to utilize other means of communication. Furthermore, since the Internet and other computer communications networks are "unique" media capable of a "wide variety of communication and information retrieval methods," it cannot accurately be said that a substitute or alternative to communications on these networks truly exists. Reno, __U.S.__, 117 S.Ct. 2329, 2334. 3. The Restrictions Violate Appellant's Constitutional Due Process Rights. The sentencing conditions here at issue fail to reasonably apprise the appellant of the conditions to which he is subject in violation of his constitutional due process rights. According to this Court, whether a restriction is unconstitutionally vague is a question of law which is reviewed de novo. United States v. Christopher, 700 F.2d 1253, 1258 (9th Cir.), cert. denied, 461 U.S. 960, 77 L.Ed. 2d 1321, 103 S.Ct. 2436 (1983). For the purposes of comporting with constitutional due process, "a defendant is deemed to have fair notice of an offense if a reasonable person of ordinary intelligence would understand that his or her conduct is prohibited by the law in question." United States v. Fitzgerald, 882 F.2d 397, 398 (9th Cir. 1989). The order in question is deficient since it utilizes poorly-defined terminology, and is, at times, self-contradictory. As a result, the appellant has been deprived of reasonable notice concerning the scope of the conditions to which he is subject. To begin, significant confusion results from the district court's use of the term "computer" in this case. Given the pervasive use of micro-processing chips, which operate in everything from automobiles to photocopying machines, even the most benign object (for sentencing purposes) may rationally be considered a "computer." When asked to clarify this term, however, the court repeatedly declined, stating, "I am not going to define what a computer is." [RT 6/27/97 at 4-6; ER 52-4] The court's refusal in this regard is problematic because the term "computer" is no longer reasonably limited to its original or traditional meaning. Due to the rapid pace of technological development and the exponentially increasing use of micro-processors in modern society, the term "computer" has essentially become a generic word accurately describing anything "electronic." The considerable confusion resulting from use of this particular term is further compounded when coupled with prohibitions on conduct involving "computer related equipment," [ER at 87] and "computer related activity." [ER at 87] Once again, these terms are left expressly undefined and yet subject to broad interpretation. The resulting conditions will have a considerable chilling effect on the appellant's rights and will subject him to the risk of arbitrary enforcement by the probation office. [RT 6/27/97, 15-16; ER 63-4] Apart from its due process implications, the ambiguity of the sentencing language will also necessarily result in a violation of 18 U.S.C.  3583(f). This section requires that the court, through the probation office, provide the defendant with a written statement setting forth all the conditions to which the term of supervised release is subject with sufficient specificity and clarity to serve as a guide for the defendant's conduct and for such supervision as is required. 18 U.S.C. 3583(f); see also, United States v. Felix, 994 F.2d 550, 551 (8th Cir. 1993), (ultimate goal of section 3583(f) is notice and guidance for the defendant). Considering that the district court's language was purposefully devoid of either specificity or clarity, the government's burden in this respect surely cannot be met. As evidenced in the transcript, differing parties can and, most certainly, will hold disparate interpretations of the very conditions at issue here. At one point, for example, the district court explained that it did not necessarily desire to deprive the appellant use of an inert tool such as a computer devoid of a modem. [RT 6/27/96 at 7; ER 55]. Nonetheless, the Government relied on the court's own sentencing language to support just such a ban remarking, "I think the court is right in stating the risk of owning a lap-top because [h]e can write codes that might help him break into computers which is something the court is concerned with." [RT 6/27/97, 19; ER 67]. Understandably confounded, appellant's counsel noted that the legitimate use of computer by the appellant, "seems to violate the letter...but certainly not the spirit of the court's order." [RT 6/27/97, 21; ER 69] The disparity between the court's stated intent and actual order underscores the conclusion that the court's sentence was imposed erroneously. Apart from their ambiguity, the district court's oral remarks and written order evidence a genuine disparity sufficient, in and of itself, to constitute a violation of the appellant's due process rights. In fact, the court's written order is, at times, directly contradicted by its oral statements at sentencing. For example, at one point in the proceedings the court stated to counsel, "if you cause your client to cooperate with his supervisor - his probation officer and not violate the law, I am sure we will never get together no matter what device he has got." [RT 6/27/97, 21-22; ER 67-70] On yet another occasion, the court explained, "all I say to you, Mr. Mitnick, is don't engage in any more [criminal activity] and we won't have any reason to get together no matter what the conditions say." [RT 6/27/97, 11-12; ER 59-60]. Taken together, these incompatible directives fail to impart reasonable notice as to the nature of the prohibited activity. Consequently, the sentencing conditions do not comport with either statutory or constitutional law. 18 U.S.C. 3583(f); Fitzgerald, 882 F.2d 397, 398. B. THE OCCUPATIONAL RESTRICTIONS IMPOSED BY THE DISTRICT COURT EVIDENCE AN INCORRECT APPLICATION OF THE SENTENCING GUIDELINES Standard of Review This Court reviews the district court's interpretation and application of the Sentencing Guidelines de novo. United States v. Robinson, 94 F.3d 1325, 1327 (9th Cir. 1996). Application of the Sentencing Guidelines to the facts is reviewed for an abuse of discretion. Id. Factual findings underlying the sentencing decision are reviewed for clear error. Id. Argument Section 5F1.5 of the Sentencing Guidelines provides the basis for imposing occupational restrictions as follows: "(a) A district court may impose a condition of supervised release prohibiting the defendant from engaging in a specified occupation, business, or profession, or limit the terms on which the defendant may do so only if it determines that: (1) a reasonably direct relationship existed between the defendant's occupation, business, or profession and the conduct relevant to the offense of conviction; and (2) imposition of such a restriction is reasonably necessary to protect the public because there is reason to believe that, absent such restriction, the defendant will continue to engage in unlawful conduct similar to that for which the defendant was convicted. (b) If the court decides to impose a condition of probation or supervised release restricting a defendant's engagement in a specified occupation, business, or profession, the court shall impose the condition for the minimum time and to the minimum extent necessary to protect the public." [Emphasis added] Federal Sentencing Guidelines 5F1.5. In the instant case, the district court exceeded its authority under the Sentencing Guidelines through its restrictions on the appellant's occupation. 1. The District Court Did Not Find that a Reasonably Direct Relationship Existed Between the Defendant's Occupation, Business, or Profession and the Conduct Relevant to the Offense of Conviction. The appellant was convicted of one count of possessing unauthorized access devices under 18 U.S.C. 1029(a)(3). [ER at 15-16] Under a plea agreement entered between the parties, relevant conduct to this offense was limited to that occurring or having its effects within the Eastern District of North Carolina. [ER at 8] The district court acknowledged this agreement and professed to abide by it during sentencing. [RT 6/16/97, 24-25, RT 6/27/97, 26-27; ER 32- 33, 26-27]. Thus, only this limited conduct could properly have been considered in imposing an occupational restriction on the appellant as a condition of supervised release. U.S.S.G. 5F1.5(a)(1). In accordance with the terms of the plea agreement, the government concluded that alleged "hacking" conduct was "irrelevant to defendant's sentencing in the North Carolina matter." [ER 29-30] Nonetheless, at the sentencing hearing, the government made reference to computer activity irrelevant to the North Carolina case. [RT 6/16/97, 56; RT 6/23/97, 9; ER 35, 42] The district court also made reference to its fear of the appellant engaging in "hacking" activity. [RT 6/23/97, 6, 9; ER 39, 42] Moreover the court's intent to protect the public from computer hacking seems to be the only factor considered in sentencing since no other justification for the order is offered. However, since this alleged "hacking" conduct is not relevant to the offense of conviction, it cannot be considered in imposing sentence for the offense. U.S.S.G. 5F1.5. Ultimately, the district court imposed the following occupational restrictions on the appellant: (a) The defendant shall not be employed in or perform any services for any entity engaged in the computer, computer software, or telecommunications business and shall not be employed in any capacity wherein he has access to computers or computer related equipment or software; (b) The defendant shall not access computers, computer networks or other forms of wireless communications himself or through third parties; (c) The defendant shall not act as a consultant or advisor to individuals engaged in any computer related activity. [ER 87] Upon entry of the guilty plea to this charge, the appellant admitted to possessing various cellular telephone numbers with which he accessed and obtained unauthorized telephone services. [RT 4/22/96 at 12; ER 21] Simply stated, this conduct bears no reasonably direct relationship to the imposed occupational restrictions. The district court did not conclude otherwise. In fact, there is no indication in the record that the court ever took notice of the appellant's occupation for any of the time he was residing in North Carolina. Because there are no facts evidencing any relationship between the conduct relevant to this offense and the appellant's profession, the district court's occupational restrictions are in error and must be reversed. 2. The Imposed Occupational Restrictions are not Reasonably Necessary to Protect the Public from Similar Unlawful Conduct. Just as the total prohibition on the appellant's right to use or possess a computer is exceedingly broad to be considered reasonably necessary in protecting the public, so must one consider the similarly designed occupational restrictions. Flaws in the prohibition from any employment in which the appellant has access to computers are readily apparent. Appellant's counsel illustrated the unreasonableness of this restriction by noting that even a waiter in a restaurant uses a computer to do "everything from seating to coming up with the bill." [RT 6/23/97, 7; ER 40] Undoubtedly, preclusion from such an occupation cannot be considered warranted as necessary to protect the public in this case. To be sure, the district court appeared to agree with this conclusion. [RT 6/23/97, 7; ER 40] However, rather than modify the conditions' blunt language, the court defended the propriety of its order by retorting , "I said that you could say in here 'unless approved by the probation officer.'" [RT 6/23/97, 7; ER 40] As previously discussed, this off-center system of checks and balances is untenable since it serves to enact unreasonable restrictions with an unjustified presumption that they will be relaxed and, thereby, applied reasonably through the probation office. [RT 6/27/97, 7; ER 55] From the face of the restrictions, however, no probation officer will be privy the court's true intent as evidenced at hearing of this matter. Rather, the probation officer will most likely assume that the restrictions were imposed by the court for good cause. Moreover, the probation officer is under no duty similar to that of the court, to ensure that the restrictions do not unnecessarily affect the appellant's liberty interests. 18 U.S.C.  3583(d); U.S.S.G.  5F1.5. Rather, the decision is wholly a matter of his discretion. [RT 6/27/97 at 8, 11; ER 56, 59]. Consequently, there is little justification for a belief that the restrictions will be properly lifted by the probation officer wherever they unnecessarily restrict the appellant's liberty interests. 3. The Occupational Restrictions were not Imposed to the Minimum Extent Necessary to Protect the Public. Pursuant to Sentencing Guideline section 5F1.5, the district court shall impose conditions restricting a defendant's occupational pursuits "for the minimum time and to the minimum extent necessary to protect the public." In this case, the court expressly recognized situations in which its occupational restrictions exceeded those necessary to protect the public, and yet refused to modify the sentencing language accordingly. [RT 6/27/97 at 7-9; ER 55-57] In response to the conditions originally proposed by the district court, the defendant-appellant submitted alternative conditions designed to adequately protect the interests of the public without unnecessarily restricting his liberty interests or his ability to seek gainful employment. [ER 46-47] The proposed alternative conditions consist of the following: 1. The defendant shall not use or possess a cellular telephone or any other wireless communications instrument that has been modified or altered to obtain unauthorized use of telecommunications services. 2. The defendant shall not use or possess hardware or software used for altering or modifying cellular telephone equipment or other wireless communication instrument[s] to obtain unauthorized access to telecommunications services. 3. The defendant shall not use any computer without prior permission of the owner based upon informed consent of defendant's past criminal convictions. 4. The defendant shall not use a computer modem unless as required by lawful employment and/or educational purposes as discussed in [condition] 5, infra. 5. The defendant shall be allowed to obtain lawful employment and/or education in any field that requires access to computer or computer-related equipment with the permission of the Probation Officer or upon an Order of the Court. The Probation Officer shall not unreasonably deny or withhold such permission. [ER 46-47] The appellant's proposal evidences restrictions sufficient to ensure the protection of the public without creating unjustifiable encumbrances on the appellant's ability to become a productive member of society. In light of these proposed conditions, it is it is readily apparent that the district court's actual sentence was not tailored to the minimum extent necessary to protect the public as required under the Guidelines. U.S.S.G. 5F1.5. 4. The Imposed Conditions are so Severe as to Constitute Impermissible Punishment. Both the overbreadth and vagueness inherent in the district court's order result in occupational restrictions so severe as to constitute an impermissible form of punishment. Even assuming the objectionable restrictions in this case were not intended to punish, their breadth and impact on the appellant are so profound as to constitute de facto punishment. United States v. Mills, 959 F.2d 516, (5th Cir. 1992) (requiring defendant to sell his business as condition of supervised release was not minimum condition reasonably necessary to protect public and was tantamount to impermissible punishment,) at 519-20. Although conditions of probation may be designed to punish, the rehabilitative purposes of supervised release do not allow for similar punitive considerations. 18 U.S.C. 3553, 3563, 3583. C. IT IS UNCLEAR WHETHER THE DISTRICT COURT UNDERSTOOD THAT IT HAD DISCRETION TO AMELIORATE THE DRUG TESTING REQUIREMENT. The district court has discretion in requiring a defendant to submit to drug testing as a condition of supervised release if the defendant's presentence report or other reliable sentencing information indicates a low risk of future substance abuse. 18 U.S.C. 3583(d), 3563(a)(5). In this case, neither the presentence nor any other report indicates that the appellant has any history of drug use whatsoever. Considering the low risk of his engaging in illegal drug use, appellant requested the district court to waive any drug testing conditions. [RT 6/27/97 at 31-32; ER 79-80]. In denying the request, the district court responded, "that is a standard requirement...it is like adhering to and obeying the rules and regulations of the court and the probation office." [RT 6/27/97 at 32; ER 80] While conditions requiring that the defendant to obey the rules and regulations of the court and the probation office clearly cannot be waived, the district court's response did not indicate that it understood the drug testing requirement could be ameliorated or suspended in it's discretion. United States v. Lam, 20 F.3d 999 (9th Cir. 1994), (although district court's discretionary decision not to depart downward from Sentencing Guidelines is not reviewable, its belief that it does not have legal authority to depart is reviewable, unless court indicates that it would not depart if it could), at 1001. This requirement should be vacated and remanded because it appears that the court did not believe it had authority to ameliorate the condition.VI. CONCLUSION For the reasons set forth above, the district court's sentence should be vacated and remanded. DATED: December 12, 1997 Respectfully submitted, RANDOLPH & LEVANAS By: _______________________________ DONALD C. RANDOLPH Attorneys for Appellant KEVIN DAVID MITNICK