United States v. Peter Bobal (11th Cir. November 2020)

The Federal Docket

January 29, 2021

Supervised Release/Internet Restrictions – A condition of supervised release limiting a defendant’s access to the internet to work and pre-approved purposes is not unconstitutional even where the defendant’s term of supervised release is for life.

Prosecutorial Misconduct – A prosecutor may make colorful arguments that “the only verdict” as to a count is “a verdict of guilty, and a prosecutor does not make improper remarks by incorrectly stating that a defendant has stipulated to his guilt as to a count in the indictment, rather than an element of one of the counts, as long as the full context allows a jury to understand that the stipulation only applies to an element.

Peter Bobal was convicted of attempting to persuade a minor to engage in sexual activity and committing a felony involving a minor while required to register as a sex offender. Bobal was sentence to prison and a lifetime term of supervised release which including a condition that he could not use a computer with internet access except for work and with prior permission from the court.

On appeal, Bobal argued that the prosecutor’s closing arguments were improper because they misled the jury and that the computer condition on his supervised release was unconstitutional.

The trial was bifurcated so that the jury could determine Bobal’s guilty for the first count of enticing a minor before hearing evidence and determining his guilt on the second count of committing a felony involving a minor while required to register as a sex offender. Bobal and the government stipulated to the element that he was a registered sex offender for Count 2. During closing arguments for the second second, the prosecutor paraphrased the stipulation, stating that Bobal stipulated “that the Government proves Count 2.”

The Eleventh Circuit held that the prosecutor’s statements were not plain error, as they were not improper. The Court credited the Government’s argument that the prosecutor’s statements were an “isolated slip of the tongue.” Since she had followed that “slip” with another statement that Bobal was a “registered sex offender” and “required to register as a sex offender,” the Court deemed that, “from the full context of the quote,” a reasonable juror would have understood that the prosecutor only really meant that Bobal stipulated to the second element of the offense, not Count 2 in its entirety. The Court also held that the prosecutor’s statement that “the only verdict as to Count 2 is a verdict of guilty” was not improper since it was an argument “meant to persuade the jury, not an instruction as to how it must vote” and reflected “nothing more than elementary logic” given the stipulation and the fact that the same jury had convicted Bobal of enticement earlier.

The Court also held that Bobal’s computer restriction condition was not unconstitutional, citing Eleventh Circuit precedent that “a limited restriction on a sex offender’s ability to use the internet” is permissible if it only lasts during a defendant’s term of supervised release and allows the defendant to use a computer for valid purposes and with prior permission. Prior panels had upheld such restrictions even when the supervised release term was for life. The Court concluded that the Supreme Court’s decision in Packingham v. North Carolina did not change the impact of those precedents.

The Court noted that its decision was at odds with those of the Third Circuit, which held in United States v. Holena that Packingham had rendered all “blanket internet restrictions” unconstitutional.

Appeal from the Southern District of Florida
Opinion by W. Pryor, joined by Hull and Marcus

Click here to read the opinion.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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