CA9: Supervised release conditions must be supported by record and not by fight with PD

Buried in a white collar case referred to in Cal. App. Report (in which a guy that worked at a credit union took bribes) is an important issue:  A “no-alcohol” supervised release must be supported by facts in the record.  The fact that the Public Defender (like many Pds) have a blanket office policy against instructing defendants to answer questions about their booze-usage is not an excuse for judges to impose such conditions.

The Ninth Circuit writes:

The bureaucratic reason for the sentence, to set court policy against federal defender office policy in order to compel a change in federal defenders’ office policy, is prohibited in the context of sentencing by the requirement in 18 U.S.C. § 3553(a)(1) that the court must consider “the history and characteristics of the defendant.” Sentencing must, under section 3553, be individualized.  Congress can make non individualized policies, but not judges. We squarely rejected the proposition that the defendant has the burden to come forward with information in a decision that came down after the sentencing in this case, United States v. Weber ([penile plethysmograph devices as conditions])  We held in Weber that the government bears the burden to demonstrate that the discretionary supervised release condition is appropriate for the particular case. The defendant does not bear the burden to demonstrate that a discretionary condition is unnecessary.

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