23-6967-cr United States v. Pepio

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 2nd day of December, two thousand twenty-four.

Present: EUNICE C. LEE, MARIA ARAÚJO KAHN, Circuit Judges, MARGARET M. GARNETT, District Judge. * _____________________________________ UNITED STATES OF AMERICA,

Appellee,

v. 23-6967-cr

* Judge Margaret M. Garnett, of the United States District Court for the Southern District of New York, sitting by designation. CHRISTIAN PEPIO,

Defendant-Appellant. _____________________________________

For Defendant-Appellant: COLLEEN P. CASSIDY, Federal Defenders of New York, Inc., Appeals Bureau, New York, NY.

For Appellee: TARA B. MCGRATH (David C. James, on the brief), Assistant United States Attorneys, for Breon Peace, United States Attorney for the Eastern District of New York, Brooklyn, NY.

Appeal from an August 14, 2023 judgment of the United States District

Court for the Eastern District of New York (Gonzalez, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED.

Defendant-Appellant Christian Pepio appeals from a judgment of

conviction following his guilty plea to one count of distribution of child

pornography, in violation of

(a)(2) and

(b)(1).

Pepio was sentenced to 70 months’ imprisonment, to be followed by five years of

supervised release. At sentencing, the district court imposed mandatory and

2 standard conditions of supervised release, as well as several special conditions.

On appeal, Pepio challenges two of the special conditions: (1) Condition 8,

which authorizes the United States Probation Office (“Probation”) to conduct

continuous electronic monitoring of his devices by capturing and analyzing all

data processed by or contained on the devices, and allows Probation to access the

geolocation data and physical devices upon reasonable suspicion that Pepio has

violated the conditions of supervision; and (2) Condition 9, which requires Pepio

to provide Probation with the login credentials for all of his electronic

communications service accounts, which are only to be accessed and searched

upon reasonable suspicion that he has violated a condition of his supervision and

that the account to be searched contains evidence of the violation.

Pepio argues that the district court erred by imposing these electronic

monitoring conditions because they are overbroad, not justified by the

circumstances of his case, and not reasonably necessary to achieve the goals of

supervised release. We assume the parties’ familiarity with the underlying facts,

the record of prior proceedings, and the issues on appeal, which we reference only

as necessary to explain our decision to affirm.

3 “District courts possess broad discretion in imposing conditions of

supervised release.” United States v. Betts,

(2d Cir. 2018). A

district court may impose special conditions of supervised release if they are

“reasonably related” to the nature and circumstances of the offense, the history

and characteristics of the defendant, the need for the sentence imposed to afford

adequate deterrence to criminal conduct, the need to protect the public from

further crimes of the defendant, and the need to provide the defendant with

correctional treatment in the most effective manner. United States v. Carlineo,

, 536 (2d Cir. 2021) (citing U.S. Sent’g Guidelines Manual § 5D1.3(b)). In

doing so, district courts must “carefully balance the goals of supervised release

while remaining mindful of the life-altering effects their judgments have on

defendants, their families, and their communities.” United States v. Sims,

, 120 (2d Cir. 2024).

When determining whether to impose special conditions, “[a] district court

is required to make an individualized assessment . . . and to state on the record the

reason for imposing it; the failure to do so is error.” Betts,

.

Where a district court does not provide such an explanation, the condition at issue

may be upheld “only if the district court’s reasoning ‘is self-evident in the record.’”

4

at 202 (quoting United States v. Balon,

, 41 n.1 (2d Cir. 2004)).

The district court found that Condition 8 was “sufficiently tailored and

sufficiently protective of the defendant’s rights,” and that Condition 9 was both

“necessary in order to allow for the exercise of the monitoring” contemplated by

Condition 8 and sufficiently limited by a “gating mechanism” which allowed for

“access [to the accounts] . . . only upon reasonable suspicion.” App’x at 158, 160–

61. The district court rejected Pepio’s two proposed alternatives. First, based

on Probation’s representations regarding the capabilities of its software, the court

concluded that a system in which the software would surveil and flag suspicious

usage for Probation would be “unworkable.”

at 156–57. Second, the court

assessed that the use of a third-party monitor would be “a distinction without a

difference.”

Accordingly, the district court concluded that the monitoring

conditions were appropriate, given the nature of the offense conduct, the nature

of the victims, and the use of a computer in committing the offense.

.

On appeal, Pepio argues that the district court erred by imposing, without

sufficient individualized explanation, two “expansive monitoring conditions

[that] infringe on [his] fundamental privacy and liberty interests,” in violation of

5 our Court’s precedents. Appellant’s Br. at 24. The district court’s stated reasons

for imposing these conditions were, in his view, so “generic” and conclusory that

they would apply to any child pornography case and cannot meet the required

standards. Id. at 29.

While we agree that the district court’s explanation for imposing the

contested special conditions was not detailed, the record contains sufficient

evidence to justify its decision. See Betts,

(explaining that a

condition may be upheld in the absence of an individualized explanation if the

district court’s reasoning is “self-evident” in the record). Pepio possessed over

600 images and three videos of child pornography; distributed child pornography

over social media; used chat applications to solicit child pornography from

minors; and took steps to evade detection, including using software to conceal his

identity when viewing child pornography. Moreover, Pepio violated the

conditions of his pre-trial release by maintaining an unmonitored iPhone, wiping

its contents, and attempting to sell it. That conduct was discovered through

Probation’s monitoring of Pepio’s electronic communications.

These facts distinguish Pepio’s case from those relied upon in his briefs. In

United States v. Salazar, for example, we vacated an electronic monitoring condition

6 that was significantly broader than those here and allowed Probation to monitor

the defendant’s data and devices “at any time with or without suspicion” that he

had violated the conditions of his release. No. 22-1385-cr,

, at *1

(2d Cir. July 6, 2023) (summary order). Notably, the district court in Salazar

provided no individualized explanation of the need for the search condition. On

appeal, we found that the court’s reasoning was not self-evident, given that there

was no evidence Salazar had ever concealed his use of pornography.

at *2–3.

On the other hand, in United States v. Browder, a case more analogous to this

one, we emphasized that where an individual has been convicted of possessing

hundreds of digital images of child pornography and is known to use computer

software to erase or conceal illicit images, a computer monitoring condition may

be reasonably necessary for the purposes of sentencing. See

(2d

Cir. 2017).

Under the terms of the special conditions here, Probation can access Pepio’s

geolocation data, electronic devices, and electronic communication accounts only

upon reasonable suspicion that Pepio violated the terms of his supervised release.

These conditions are not only narrowly tailored and reasonably related to Pepio’s

individual characteristics, but advance the goal of preventing further violations or

7 offenses, given his history of evasive behavior. The district court therefore did

not abuse its discretion in imposing the challenged monitoring conditions.

Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

8