Opinion
Case No. 00-40028-01-DES
December 29, 2000
MEMORANDUM AND ORDER
This matter is before the court on defendant's Motion for Clarification or Modification of Probation Terms (Doc. 62) pursuant to Federal Rule of Criminal Procedure 32.1(b). Defendant pled guilty to one count of copyright infringement and was sentenced to two years probation. The terms of defendant's probation include employer notification of his conviction. Defendant requests that the court modify its order and not require employer notification. Defendant claims "disclosure is virtually certain to result in the loss of his job." The government objects to the proposed modification. For the following reasons, the court finds its order should be modified and employer notification should not be required.
There are two terms of probation which suggest employer notification is required. The first is a condition which provides, "as directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendant's criminal record or personal history or characteristics, and shall permit the probation officer to make such notifications and to confirm the defendant's compliance with such notification requirement." The second condition provides, "[t]he defendant shall consent to third party disclosure to any employer or potential employer, concerning any computer-related restrictions that are imposed." When defendant objected to the employer notification requirement at the sentencing hearing, the court responded, "that's just got to be worked out with the probation office and whatever they work out is fine. If they can't get it together they will have to come back to me." (Sent. Tr. 12) Thus, the court vested discretion with the probation office to determine whether employer notification would be required.
Employer notification is an occupational restriction which may only be imposed by the court. See United States v. Doe, 79 F.3d 1309, 1319 (2nd Cir. 1996) ("the decision whether to impose an occupational restriction is entrusted ultimately not to the probation department but to the court"). Because the probation office has determined in its discretion that employer notification is required and defendant objects, the court must make the ultimate decision over whether disclosure is required. Whether an occupational restriction should be imposed is to be determined on a case by case basis. United States v. Doe, 79 F.3d 1309, 1318 (2d Cir. 1996). Under the sentencing guidelines a court may impose an occupation restriction only if it determines:
• a reasonably direct relationship existed between defendant's occupation, business, or profession and the conduct relevant to the offense of conviction; and
• 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.
U.S.S.G. § 5F1.5 (2000). The probation guidelines promulgated by the Administrative Office of the Courts also provide for employer notification only when a reasonably foreseeable risk exists:
• Guidelines for disclosure of third party risk information are selective. A warning is not required in every case, only where a reasonably foreseeable risk of harm to a specific third party is believed to exist. . . .
D. A disclosure requirement must be reasonably related to the correctional treatment of the offender and/or the protection of the public.
(1) Determination of Risk.
The determination of whether a "reasonably foreseeable" risk exists depends upon a selective case-by-case evaluation. Among other factors, the evaluation should be based upon the offender's employment, offense, prior criminal background, and conduct. The officer should pay special attention to employment or other circumstances which present the offender with an opportunity or temptation to engage in criminal or antisocial behavior related to the offender's criminal background.
(2) "Reasonably Foreseeable" Risk.
"Reasonably foreseeable" risk means the circumstances of the relationship between the offender and the third party (e.g., employer and employee) suggest the offender may engage in a criminal or antisocial manner similar or related to past conduct.
(3) Making Disclosure Decisions. (A) If the probation officer determines no reasonably foreseeable risk exists, then no warning should be give.
Administrative Office of the Courts, vol. X, Guide to Judiciary Policies and Procedures, Probation Manual, ch. IV, at 36-37 (1992). If the court determines employer notification is necessary, such notification may be ordered only "to the minimum extent necessary to protect the public." Doe, 79 F.3d at 1321.
The court finds that defendant does not present a reasonably foreseeable risk of harm to his employer. Defendant has no prior criminal history. The conduct resulting in his conviction was extraordinary. Defendant sold software he obtained from an internet website solely to generate the funds necessary for his dying mother's experimental cancer treatments. Defendant was his mother's primary care giver and sole source of financial support. At the time defendant committed the crime, he had sold his personal assets to fund his mother's cancer treatments. These circumstances are extraordinary, and defendant's motive to commit the crime no longer exists, as his mother has died.
In addition, there is the issue of the government's involvement in the crime. By chance, defendant was assigned to work with the government's confidential informant, who befriended the defendant. The confidential informant suggested that defendant sell the software to his "friend." The FBI agent who posed as the friend and the confidential informant were both aware of defendant's mother's health and defendant's financial situation. It is extremely likely that, but for the government's involvement, defendant would never have committed the crime. Defendant accepted responsibility for his conduct and fully cooperated with the government. Based on these facts, it is highly unlikely defendant will engage in similar criminal conduct.
There is also no evidence that defendant's current position with his employer creates a risk that he will engage in similar criminal conduct. Essential to the success of defendant's crime was his position at his former employer. Defendant held a position through which he received "credentials" to websites that had copyright-infringing software. Defendant's current position is as a technical assistant to sales personnel, which involves explaining to customers methods through which they can network their computer systems. This job is not "hands-on" in that defendant does not use the internet at his work, nor does he hold the "credentials." Therefore, his current position does not present defendant with an opportunity or temptation to engage in similar criminal conduct.
When determining whether to require employer notification, the court must bear in mind that the purpose of employer notification is not the "elimination of any possibility of risk," but only those risks which are reasonably foreseeable. Doe, 79 F.3d at 1323. It is not reasonably foreseeable that defendant will continue to engage in unlawful conduct similar to that for which he was convicted. Therefore, the court finds employer notification is not required under the facts of this case.
IT IS THEREFORE BY THE COURT ORDERED that defendant's Motion for Clarification or Modification of Probation Terms (Doc. 62) is granted. The terms of defendant's probation are modified to reflect that employer notification is not required.