                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-1111
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Northern District of Iowa.
Scott Ristine,                          *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: May 13, 2003

                                  Filed: July 2, 2003
                                   ___________

Before BOWMAN, HEANEY, and BYE, Circuit Judges.
                         ___________

BOWMAN, Circuit Judge.

       Scott Ristine pleaded guilty to one count of receiving child pornography. He
now appeals various supervised-release conditions imposed by the District Court1 that
restrict his possession of pornography, his use of photographic equipment and
computers, and his access to the Internet. We affirm.




      1
       The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
                                           I.

       The Colorado Springs Police Department ran an undercover operation in which
an officer posed via the Internet as a guide for persons interested in overseas tours
during which participants could have sex with minors. From his home computer,
Ristine contacted the undercover officer and stated his desire to sign up for such a
tour. Ristine later told the officer that he could not afford the cost of a tour, but he
indicated interest in videos and photographs sold by the tour company. The officer
emailed Ristine a catalog of videotapes, and Ristine ordered, over email, a videotape
titled "The Sex Party" that was described in the catalog as featuring boys and girls
under age ten engaging in sexual acts. After a controlled delivery of the video to
Ristine's residence, law enforcement agents executed a search warrant at the residence
and found the videotape, which Ristine admitted to ordering. He also admitted to
possessing thousands of child pornography images that he downloaded from the
Internet and to exchanging these images with other Internet users. By the time the
agents completed their search, they had uncovered 111 floppy disks containing
pornographic images of children, two computer hard drives with such images, and
three videotapes of child pornography.

       After pleading guilty to one count of receiving child pornography, the District
Court sentenced Ristine to twenty-seven months of imprisonment with three years of
supervised release subject to eight special conditions. On appeal, Ristine claims that
four of his release conditions violate 18 U.S.C. § 3583(d)(2) (2000) because they
constitute a greater deprivation of liberty than is reasonably necessary to achieve their
purposes.

                                           II.

      We generally review the terms and conditions of supervised release for an
abuse of discretion. United States v. Kent, 209 F.3d 1073, 1075 (8th Cir. 2000).

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When a defendant failed to raise a timely objection to those terms, however, our
review is only for plain error. United States v. Crose, 284 F.3d 911, 912 (8th Cir.
2002) (per curiam). "Plain error occurs if the district court deviates from a legal rule,
the error is clear under current law, and the error affects the defendant's substantial
rights." Id. Here, Ristine did not object at sentencing to the release conditions that
he now appeals, but he argues that we should use an abuse of discretion standard, and
not plain error, because his failure to object stemmed from his lack of notice that the
challenged conditions would be imposed. We reject this argument for two reasons.
First, there is no case law in our Circuit to support it. Second, we find unpersuasive
the two cases Ristine cites from other circuits that he believes lends credence to his
position. United States v. Scott, 316 F.3d 733, 734 (7th Cir. 2003), is not in point
because the defendant in that case opposed the challenged condition at sentencing.
United States v. Sofsky, 287 F.3d 122, 125 (2d Cir. 2002), cert. denied, 123 S. Ct.
981 (2003), does involve a defendant who failed to object at sentencing to a
challenged condition; in that case, the Second Circuit decided to "relax the otherwise
rigorous standards of plain error review" because the defendant lacked prior notice
that the District Court would impose the challenged condition and because
"correcting a sentencing error results in, at most, only a remand for resentencing or
. . . for a modification of the allegedly erroneous condition of supervised release." Id.
We decline to read our precedent to call for a relaxed standard based on these
justifications. Accordingly, we review for plain error.

                                           A.

       Ristine first challenges a special condition of supervision that prohibits him
from owning or possessing "any pornographic materials." See Judgment Order at 4
(December 30, 2002). The condition also bans his use of "any form of pornography
or erotica" and his entry into "any establishment where pornography or erotica can
be obtained or viewed." Id. Ristine's argument is that the restrictions concerning



                                          -3-
pornography in this condition are overbroad and vague.2 To the extent the restrictions
are overbroad, he argues that they prevent him from accessing materials that he
believes he has a First Amendment right to view. To the extent the restrictions are
vague, he contends that they fail to give him adequate notice as to when he would
violate the condition.

      Ristine's argument that the pornography-related restrictions are overbroad is
without merit. In light of the significant evidence in the record that demonstrates
Ristine's obsession with or addiction to child pornography, we believe that the ban
on pornography is appropriately tailored to serve its dual purposes of promoting
Ristine's rehabilitation and protecting children from exploitation. Ristine's more
powerful argument is that the vagueness of "pornography" leaves him without notice
as to what film, prose, and art he may view without violating the challenged
condition.3 We have not addressed this issue before, and the circuit courts that have
considered similar conditions have divergent views. In striking down a condition
banning a defendant from possessing "all forms of pornography, including legal adult
pornography," the Third Circuit explained that "without a more definitive standard
to guide the probation officer's discretion, there is a real danger that the prohibition
on pornography may ultimately translate to a prohibition on whatever the officer

      2
       We note that Ristine does not argue that the restrictions concerning "erotica"
are overbroad or vague.
      3
        Compare Webster's Third New International Dictionary 1767 (1983) (defining
"pornography" as "a description of prostitutes or prostitution" or "a depiction (as in
writing or painting) of licentiousness or lewdness: a portrayal of erotic behavior
designed to cause sexual excitement") with The American Heritage Dictionary 1410
(3d ed. 1992) (defining "pornography" as "[t]he presentation or production of . . .
[p]ictures, writing or other material that is sexually explicit and sometimes equates
sex with power and violence") and Cass R. Sunstein, Pornography and the First
Amendment, 1986 Duke L. J. 589, 592 (proposing definition of "pornography" that
includes sexual explicitness, depictions of women as enjoying or deserving physical
abuse, the purpose of arousal, and the effect of arousal).

                                          -4-
personally finds titillating." United States v. Loy, 237 F.3d 251, 261, 266 (3d Cir.
2001). On the other hand, the Fifth Circuit recently upheld a condition that
prohibited the defendants from possessing "sexually oriented or sexually stimulating
materials." United States v. Phipps, 319 F.3d 177, 192–93 (5th Cir. 2003). The Fifth
Circuit reasoned that "'sentencing courts must inevitably use categorical terms to
frame the contours of supervised release conditions'" because "'it would be impossible
to list' every instance of prohibited conduct." Id. at 193 (quoting United States v.
Paul, 274 F.3d 155, 166 (5th Cir. 2001), cert. denied, 535 U.S. 1002 (2002)).

       Were we reviewing this special condition for an abuse of discretion, we might
be forced to select the line of reasoning we find more compelling, but the standard
here is plain error. Even if we sided with the Third Circuit and concluded that the
special condition deviates from a legal rule, we cannot conclude that the District
Court committed an error that is clear under current law because, as Loy and Phipps
illustrate, the current law concerning this issue is unsettled. Because the imposition
of the condition was not plain error, we are bound to uphold it.

                                          B.

      Ristine next claims that two release conditions concerning photographic
equipment, computers, and Internet use are overbroad. Special Condition 3 states that
Ristine is "prohibited from owning or operating any photographic equipment
including, but not limited to, cameras, digital cameras, videotaping recorders,
camcorders, computers, scanners, and printers." Judgment Order at 4. Special
Condition 4 allows Ristine's probation officer to permit Ristine to possess a computer,
but Ristine must consent to periodic unannounced examinations and inspections of
his computer as well as to the installation of hardware or software that monitors his
computer use. Id. Even if Ristine is permitted to have a computer, he may not have
Internet service at his residence. Id.



                                         -5-
        We first consider the restrictions on Ristine's use of a computer and access to
the Internet. Ristine identifies courts that have rejected prohibitions on Internet use
as a release condition for persons convicted of child pornography offenses, see United
States v. Freeman, 316 F.3d 386, 392 (3d Cir. 2003); Sofsky, 287 U.S. at 126, but our
court is not among them. See United States v. Fields, 324 F.3d 1025 (8th Cir. 2003).
In Fields, the defendant was convicted of selling child pornography, and his release
conditions included nearly identical restrictions on using computers and accessing the
Internet as those imposed on Ristine. We acknowledged in Fields that some courts
have decided that Internet bans are overly restrictive release conditions, but we
concluded that the imposition of the restrictions on computers and on Internet use was
not an abuse of discretion and was "certainly" not plain error. Id. at 1027. We
reached our decision based largely on two considerations. First, there was evidence
that the defendant did more than merely possess child pornography; he sold
subscriptions to pornographic images. Second, the defendant was not completely
prohibited from using a computer; he could possess a computer with the permission
of the probation officer. Id.

       These two considerations are present in Ristine's case and operate with the
same force in our analysis. Like the defendant in Fields, Ristine more than merely
possessed images of child pornography—he exchanged the images with other Internet
users, and he attempted to arrange sexual relations with underage girls. In addition,
Ristine—like the Fields defendant—is not wholly barred from using a computer. The
primary difference between Fields and this case is that the defendant in Fields
established a website that provided paid subscribers with images of naked minors,
whereas Ristine exchanged pornographic images with other Internet users without
charging a fee. This distinction is of no consequence. Ristine's pornography
collection was available to other Internet users, just as were the images on the website
in Fields; we accordingly believe that the exploitation of young girls was of the same
degree in both cases.



                                          -6-
       We also conclude that the restrictions on Ristine's use of photographic
equipment, including cameras, do not deprive Ristine of a greater liberty interest than
is reasonably necessary. Although there is no evidence in the record that Ristine
photographed any minors, he possessed thousands of photos of underage women and
expressed interest in having sexual relations with underage women. It is therefore
reasonable to believe that Ristine likely would photograph underage women and
would exchange those photographs with other Internet users. In Fields, we upheld
an identical restriction on photographic equipment without reliance on any evidence
that the defendant in that case used such equipment. Id. Inasmuch as this case cannot
be distinguished from Fields in any meaningful way, we apply the Fields approach
and conclude that the District Court did not commit plain error in restricting Ristine
from owning photographic equipment.

                                          C.

       Finally, Ristine challenges a condition barring him "from places where minor
children under the age of 18 congregate, such as residences, parks, beaches, pools,
daycare centers, playgrounds, and schools without the prior written consent of the
probation officer." Judgment Order at 4. Ristine argues that the condition is vague
and could be read to ban him from all parks, beaches, and pools; if read in this
manner, the restriction would be overbroad. We reject Ristine's reading of this
condition for two reasons. First, the purpose of this release condition is to limit
Ristine's access to children. It is therefore sensible for the condition to restrict
Ristine's presence at places where children are actually present. Second, because
"residences" is in the same list of banned places as parks, beaches, and pools,
Ristine's proposed reading of the condition would result in his banishment from all
residences, including those of his friends, his family, and—taking this argument to
its end—his own residence. This is an absurd result and obviously is not the intent
of the District Court. Because we believe that the condition should be read to
prohibit Ristine's presence only at those residences, parks, etc., where children under

                                         -7-
the age of eighteen actually congregate, it is not overbroad, and its imposition is not
plain error. See Paul, 274 F.3d at 166–67 (concluding that condition requiring
defendant to avoid places, establishments, and areas frequented by minors was neither
vague nor overbroad).

                                         IV.

      For the reasons stated, we affirm the sentence imposed by the District Court.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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