United States of America v. Arthur William Heckman

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-3844
UNITED STATES OF AMERICA
v.
ARTHUR WILLIAM HECKMAN,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Action No. 2-07-cr-00133-001)
District Judge: Honorable James Knoll Gardner
Argued September 30, 2009
Before: RENDELL, AMBRO and WEIS Circuit Judges
(Opinion filed: January 11, 2010 )

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2
Sarah S. Gannett
Assistant Federal Defender
Christy Unger, Esquire (Argued)
David L. McColgin
Assistant Federal Defender
Leigh M. Skipper
Chief Federal Defender
Defender Association of Philadelphia
Federal Court Division
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106-0000
Counsel for Appellant
Michael L. Levy
United States Attorney
Robert A. Zauzmer (Argued)
Assistant United States Attorney
Sherri A. Stephan
Assistant United States Attorney
Office of the United State Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106-0000
Counsel for Appellee
OPINION OF THE COURT

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This provision applies to:1
(a) Any person who –
(1) knowingly transports or ships using any means
or facility of interstate or foreign commerce or in
or affecting interstate commerce or foreign
commerce by any means including by computer or
mails, any visual depiction, if –
(A) the producing of such visual depiction
involves the use of a minor engaging in
sexually explicit conduct; and
(B) such visual depiction is of such
conduct . . . .
18 U.S.C. § 2252(a)(1).
3
AMBRO, Circuit Judge
Arthur William Heckman was indicted and pled guilty to
one count of transporting child pornography, in violation of 18
U.S.C. § 2252(a)(1). He was sentenced to 180 months’1
imprisonment, followed by a lifetime term of supervised release.
On appeal, Heckman challenges three “Special Conditions of
Supervision” imposed by the District Court for the remainder of
Heckman’s life: 1) an unconditional ban on Internet access; 2)

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a requirement that he participate in a mental health program; and
3) a restriction on any interaction with minors.
While we affirm the mental health condition, we vacate
the other challenged conditions and remand for resentencing
consistent with this opinion.
I. Facts
Heckman emailed 18 pictures of minors engaging in
sexually explicit conduct to a stranger in an Internet chat room.
Though Heckman believed the recipient to be a person who
shared his interest in child pornography, he was actually
transmitting the images to an undercover special agent with the
Federal Bureau of Investigation (“FBI”).
In October 2003, the special agent entered an Internet
chat room, which contained several Internet users interested in
child pornography and sexual encounters with minors. In doing
so, the agent posed as another user, posting the following
message: “[R]oom topics vids to trade.” Under the screen name
“n3zzu2,” Heckman responded, “[W]ish I did.” Heckman and
the special agent then discussed the possibility of trading images
of children engaged in sexual activity. Shortly after this
exchange, the special agent received an email from Heckman,
with seven images of children attached, each sexually explicit.
The special agent responded to Heckman with a corrupted file,
entitled “boyluv.wmv.” Heckman replied with 11 additional

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The FBI later confirmed that the individuals in the images2
were actual children.
5
images. Shortly thereafter, Heckman sent an email to the special
agent complaining that the agent’s file was corrupted.
In response to a request by the FBI, America Online
disclosed that the screen name “n3zzu2" belonged to “Arthur
Heckman,” whereupon he was arrested. Heckman waived his
Miranda rights and admitted to receiving and then transmitting
18 images of child pornography.2
II. Procedural History
A grand jury returned a one-count indictment charging
Heckman with transporting child pornography. He pled guilty
in April 2008. At sentencing, both parties agreed that
Heckman’s Sentencing Guidelines range was between 70 and 87
months. Because he had prior convictions involving the sexual
abuse of minors, however, a statutory minimum of 180 months
applied. See 18 U.S.C. § 2252(b)(1). The Government agreed
to the mandatory minimum sentence, but only if it ran
consecutively to another 180-month sentence that Heckman was
already serving in Florida. The Government argued that,
regardless of the sentence imposed, lifetime supervised release
was necessary to protect the public from Heckman. Given his
age (48 at the time of his guilty plea), Heckman requested that
his sentence be concurrent with the Florida sentence.

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The District Court agreed with the Government. It
sentenced Heckman to the mandatory minimum sentence of 180
months’ imprisonment, to run consecutively to the 180-month
term imposed on him in September 2006 by the Florida state
court. The Court also sentenced Heckman to lifetime supervised
release and a nominal fine of $100. The following special
conditions of lifetime supervised release are at issue in
Heckman’s appeal:
The defendant is prohibited from access to any Internet
service provider, bulletin board system, or any other
public or private computer network.
. . .
The defendant shall participate in a mental health
program for evaluation and/or treatment as directed by
the United States Probation Office. The defendant shall
remain in treatment until satisfactorily discharged and
with the approval of the United States Probation Office,
including sex offender treatment.
The defendant shall follow the directions of the United
States Probation Office regarding any contact with
children of either sex, under the age of 18. The
defendant shall not obtain employment or perform
volunteer work which includes, as part of its job/work
description, contact with minor children.

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These factors are: 1) “the nature and circumstances of the3
offense and the history and characteristics of the defendant”; 2)
the need for the sentence imposed to “reflect the seriousness of
the offense,” “promote respect for the law,” “provide just
punishment,” “afford adequate deterrence to criminal conduct,”
“protect the public from further crimes of the defendant,” and
“provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the
most effective manner”; 3) “the kinds of sentences available”;
4) “the kinds of sentence and the sentencing range established
for [the offense]”; 5) “any pertinent policy statement [by the
Sentencing Commission]”; 6) “the need to avoid unwarranted
sentence disparities among defendants with similar records who
have been found guilty of similar conduct”; and 7) “the need to
provide restitution to any victims of the offense.” 18 U.S.C.
§ 3553(a).
7
App. 6.
In explaining its reasons for Heckman’s sentence, the
Court reviewed each of the relevant sentencing factors under 18
U.S.C. § 3553(a). The Court began by noting that a 180-month,3
consecutive sentence was necessary, given Heckman’s extensive
criminal history, a history “almost unbroken from the time he
was nineteen years old until today at age forty-eight.” App. 49-
50. It noted that this was Heckman’s “eighth contact with the
criminal justice system, ” with “a strong thread . . . of sexual
offenses to minors and child pornography consistent throughout
this criminal record.” Id. at 47, 50.

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The Court also considered the gravity of the harm that
resulted from the dissemination of child pornography itself. It
observed, “[T]he children depicted in these images are violated
every time . . . an individual looks at their photographs and
every time someone shares those photographs documenting their
abuse.” Id. at 50. Furthermore,“once published on the Internet,
they cannot be taken back.” Id.
From there, the Court turned to deterrence, noting that
“[n]othing has deterred this defendant from his lifetime path of
exploiting children.” Id. Indeed, “[i]t appears that [Heckman]
took every opportunity he could find to sexually abuse children.
He was not deterred by his arrests. He was not deterred by his
convictions. He was not deterred by his sentencing on parole
violations, and he was not deterred by any treatment he may
have received.” Id. at 52. Given these reasons, it rejected
Heckman’s request for a concurrent sentence.
Finally, the Court turned to its reasons for sentencing
Heckman to lifetime supervised release. It did not address its
rationale for each of the special conditions, individually.
Instead, it considered the need for lifetime supervised release
generally, especially in light of Heckman’s decades-long record
of child exploitation. The Court explained, “[G]iven
[Heckman’s] proclivity for committing sexual offenses
involving minors and child pornography and his apparent
inability to control himself, I think it’s essential from the point
of view of deterrence . . . [,] and . . . protecting the public, that

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9
this defendant be supervised for the rest of his natural life.” Id.
at 56-57. Neither Heckman nor his counsel objected to any of
the conditions of supervised release imposed.
Heckman filed a timely appeal that challenged the special
conditions of his supervised release.
III. Jurisdiction and Standard of Review
The District Court had jurisdiction to hear this case under
18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291
as an appeal from a final decision of the District Court. We also
have jurisdiction under 18 U.S.C. § 3742, as an appeal of a
sentence imposed under the Sentencing Reform Act of 1984.
Ordinarily, a District Court’s sentence is reviewed for
“abuse of discretion.” United States v. Martinez, 785 F.2d 111,
113 (3d Cir. 1986). When, as in this case, no objection was
made to the conditions imposed by the Court at the sentencing
hearing, its decision is reviewed for “plain error.” United States
v. Evans, 155 F.3d 245, 248 (3d Cir. 1998). A “plain error” is
an “‘error’ that is ‘plain’ and . . . ‘affect[s] substantial rights.’”
United States v. Olano, 507 U.S. 725, 732 (1993) (quoting Fed.
R. Crim. P. 52(b)). “For a ‘plain error’ to “affect[] substantial
rights,” it “must have affected the outcome of the district court
proceedings.” Id. Even if so, the error must also seriously
affect “‘the fairness, integrity[,] or public reputation of judicial
proceedings.’” Id. (quoting United States v. Young, 470 U.S. 1,

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15 (1985)).
IV. Analysis
Though district courts have broad discretion in
fashioning special conditions of supervised release, this
discretion is not unfettered. “[S]uch conditions must be
‘reasonably related to the factors set forth in [§ 3553(a)]’ and
must ‘involve[] no greater deprivation of liberty than is
reasonably necessary’ to deter future crime, protect the public,
and rehabilitate the defendant.” United States v. Thielemann,
575 F.3d 265, 272 (3d Cir. 2009) (quoting 18 U.S.C.
§ 3583(d)(1)-(2)). Furthermore, “courts of appeals have
consistently required district courts to set forth factual findings
to justify special . . . conditions.” United States v. Voelker, 489
F.3d 139, 144 (3d Cir. 2007) (internal quotations omitted).
Nevertheless, we “may . . . affirm [a special] condition if we can
ascertain any viable basis for the . . . restriction in the record
before the District Court . . . on our own.” Id. (internal
quotations omitted). In the end, only a “condition with no basis
in the record, or with only the most tenuous basis, will inevitably
violate § 3583(d)(2)’s command that such conditions involve no
greater deprivation of liberty than is reasonably necessary.” Id.
(internal quotations omitted).
We consider each of the challenged conditions in turn.
A. The Unconditional Ban on Internet Access

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As a special condition of his supervised release,
Heckman was “prohibited from access to any Internet service
provider, bulletin board system, or any other public or private
computer network” for the remainder of his life—without
exception. App. 6. He challenges this special condition as plain
error. We agree. Since this is an area of law that requires a
fact-specific analysis, we consider each of our relevant
precedents in some detail. Throughout, we remain sensitive to
three factors that have guided our prior holdings in this area: (1)
the length and (2) coverage of the imposed ban; and, (3) the
defendant’s underlying conduct.
We first upheld a conditional ban on Internet access in
United States v. Crandon, 173 F.3d 122 (3d Cir. 1999). There
the defendant was a 30-year-old resident of New Jersey who met
a 14-year-old girl from Minnesota on the Internet. Id. at 125.
After corresponding online for several months, Crandon traveled
from New Jersey to Minnesota and engaged in sexual relations
with the girl. Id. at 128. The District Court imposed a three-
year condition on Crandon’s supervised release that directed him
“not [to] ‘possess, procure, purchase[,] or otherwise obtain
access to any form of computer network, bulletin board,
Internet, or exchange format involving computers unless
specifically approved by the United States Probation Office.’”
Id. at 125 (emphasis added). Therefore, Crandon’s ban was both
limited (to three years) and conditional (subject to exceptions

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Even conditional bans raise concerns about the discretion4
they afford probation officers. As Judge Easterbrook cautions:
Terms should be established by judges ex ante, not
probation officers acting under broad delegations and
subject to loose judicial review ex post . . . . Courts
should do what they can to eliminate open-ended
delegations, which create opportunities for arbitrary
action—opportunities that are especially worrisome
when the subject concerns what people may read. Is the
probation officer to become a censor who determines that
[the defendant] may read the New York Times online, but
not the version of Ulysses at Bibliomania.com?
Bureaucrats acting as guardians of morals offend the first
amendment as well as the ideals behind our commitments
to the rule of law.
United States v. Scott, 316 F.3d 733, 736 (7th Cir. 2003)
(Easterbrook, J.).
12
approved by the Probation Office).4
On appeal, we held that the Internet access ban was
justified, given Crandon’s conduct—namely, that he “used the
Internet as a means to develop an illegal sexual relationship with
a young girl over a period of several months.” Id. at 127. With
this underlying, directly exploitative conduct in mind, we
concluded that the ban was “narrowly tailored and . . . directly
related to deterring [the defendant] and protecting the public.”

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Freeman was convicted in 1973 of a “perverted sex act” and5
in 1984 for “sexual assault of a minor.” Freeman, 316 F.3d at
388.
The special condition “prohibited [Freeman] from having6
any computer equipment in [his] place of residence,” and
generally banned him from “possess[ing] or us[ing] a computer
with access to any on-line computer service at any location
without the written approval of the Probation Officer.” Id. at
389-90 (emphasis added).
13
Id. at 128.
Four years later, we refused to uphold a more restrictive,
five-year ban in United States v. Freeman, 316 F.3d 386 (3d Cir.
2003). There the defendant’s offense did not include the direct
exploitation of a minor. Instead, it involved the distribution of
child pornography by a convicted child molester. The District5
Court imposed a special condition that was both lengthier (five
years rather than three years) and more restrictive (adding a ban
on computer equipment in the defendant’s residence to a
conditional Internet ban).6
In spite of Freeman’s prior criminal record as a child
molester, we struck down this five-year ban as “overly broad,”
id. at 391-92, explaining that, since the defendant had not used
the Internet to seduce a minor, there was no need to “cut off
Freeman’s access to email or benign [I]nternet usage,”
especially in light of the fact that “a more focused restriction,

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The lifetime ban “prohibited [Voelker] from accessing any7
computer equipment or any ‘on-line’ computer service at any
location, including employment or education.” Id. at 143.
14
limited to pornography sites and images, can be enforced by
unannounced inspections of material stored on Freeman’s hard
drive or removable disks.” Id. at 392. In this, we explicitly
distinguished Crandon, explaining that “the defendant in
Crandon used the [I]nternet to contact young children and solicit
inappropriate sexual contact with them.” Id. Importantly,
“[s]uch use of the [I]nternet is . . . more difficult to trace than
simply using the [I]nternet to view pornographic web sites.” Id.
In 2007, we rejected a lifetime, unconditional ban on all
computer access in Voelker. There the defendant engaged in an
Internet conversation during which he briefly exposed the
buttocks of his three-year-old daughter over a webcam. Voelker,
489 F.3d at 146. It was later determined that Voelker, who had
no criminal record, also possessed a stockpile of child
pornography. Id. at 142-43, 146 n.5. The District Court
imposed a special condition that was much lengthier (lifetime
rather than three years) and more restrictive (an unconditional
computer ban rather than a conditional Internet ban) than the
one we upheld in Crandon.7
On appeal, we struck down this ban as “the antithesis of
a ‘narrowly tailored’ sanction.” Id. at 145. In so holding, we
distinguished Crandon, noting the difference in duration of the

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This special condition prevented Thielemann from8
“own[ing] or operat[ing] a personal computer with Internet
access in a home or at any other location, including employment,
15
special conditions imposed, as “Crandon’s restrictions remained
in place for three years,” while “Voelker’s restrictions will last
as long as he does.” Id. at 146. We also determined Crandon’s
offense to be worse than Voelker’s, as “Crandon used computers
and the [I]nternet to actually seek out, and then communicate
with, his victim.” Id. Finally, we contrasted the coverage of the
two bans, as “Crandon was allowed to continue using stand-
alone computers and computer equipment, and he retained the
right to use the [I]nternet with the consent of the Probation
Office. Voelker is not afforded either of those options.” Id. In
the end, we refused to approve “such an all-encompassing,
severe, and permanent restriction.” Id. (emphasis added).
Finally, less than a year ago, we upheld a ten-year,
conditional ban on Internet access in Thielemann. There the
defendant pled guilty to one count of receiving child
pornography, but this understated the magnitude of his conduct.
Thielemann, 575 F.3d at 267. Indeed, Thielemann was actively
involved in not only distributing child pornography, but also in
encouraging (successfully) the direct exploitation of minors.
The District Court sentenced Thielemann to the statutory
maximum of 240 months in prison and 10 years of supervised
release, including a conditional ban on Internet access. Id. at8

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without prior written approval of the Probation Office.”
Thielemann, 575 F.3d at 270 (emphasis added).
16
270. This is the lengthiest ban that we have upheld. In our
analysis, we emphasized the relatively limited coverage of
Thielemann’s ban, noting that he could “own or use a personal
computer as long as it is not connected to the [I]nternet; thus he
is allowed to use word processing programs and other benign
software.” Id. at 278 (emphasis in original). Further, we added
that Thielemann “may seek permission from the Probation
Office to use the [I]nternet during the term of his ten-year
restriction, which is a far cry from the unyielding lifetime
restriction in Voelker.” Id. Finally, we noted the importance of
Thielemann’s underlying conduct. He did more than “simply
trade child pornography; he [used] [I]nternet communication
technologies to facilitate, entice, and encourage the real-time
molestation of a child.” Id. Given this conduct, we concluded
that “[t]he restriction on computer and [I]nternet use [was
closely related] to the goals of deterrence and protection of the
public, and [did] not involve greater deprivation of liberty than
is necessary.” Id.
If upheld, Heckman’s ban would be the most restrictive
Internet ban that we have permitted—both in terms of the length
and coverage of the ban itself and the nature of the defendant’s
underlying conduct. Considering the ban’s length, it is much
longer than the three-year ban approved in Crandon and the ten-
year ban recently approved in Thielemann. As for its coverage,

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The Internet bans cited in the Government’s brief are each9
for limited periods of time. See Appellee’s Brief 35; see, e.g.,
United States v. Paul, 274 F.3d 155 (5th Cir. 2001) (upholding
a three-year ban on Internet access). To our knowledge, only the
Eighth Circuit Court has upheld a lifetime ban on either Internet
or computer access in a precedential opinion. See United States
v. Stults, 575 F.3d 834 (8th Cir. 2009) (upholding a lifetime,
conditional ban on Internet access); United States v. Boston, 494
F.3d 660 (8th Cir. 2007) (same); United States v. Alvarez, 478
F.3d 864 (8th Cir. 2007) (same). In upholding these special
conditions, the Eighth Circuit has emphasized the importance of
“a sufficient nexus” between the use of the Internet and the
direct exploitation of children. Alvarez, 478 F.3d at 867; see
also Boston, 494 F.3d at 668 (“A restriction on computer usage
does not constitute an abuse of discretion if the district court has
found that the defendant used his computer to do more than
merely possess child pornography, particularly if the prohibition
on computer usage is not absolute.”).
17
it is more restrictive than the Internet bans upheld in Crandon
and Thielemann, both of which included provisions allowing for
access to the Internet on approval by the Probation Office.
Finally, focusing on the conduct underlying Heckman’s
conviction, this would be the first time that we have upheld an
Internet ban for a conviction involving the transmission of child
pornography rather than the direct exploitation of children. In
fact, considering these factors collectively, Heckman’s special
condition would be the broadest Internet ban upheld by any
Circuit Court to date. Even the Government concedes that this9

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Even so, not even that Court has approved an
unconditional ban on Internet access. See, e.g., Stults, 575 F.3d
at 841 (upholding a special condition that prohibits the
defendant “from using or having access to any electronic media
that has [I]nternet service or photography capability without
express permission from United States Probation Office” or “for
purposes of his employment”); Boston, 494 F.3d at 664
(upholding a special condition that “prohibits [the defendant]
from accessing or possessing computers without prior written
approval of his probation office”); Alvarez, 478 F.3d at 865
(noting that the defendant may “not have Internet access at his
residence and that he have Internet access in other locations only
with prior approval of the probation office”).
Finally, in recent months, the Fifth and Eleventh Circuit
Courts have upheld lifetime bans on either Internet or computer
access in not precedential opinions. See United States v.
Fortenberry, 2009 WL 3428403, at *1 (5th Cir. Oct. 26, 2009)
(upholding a conditional ban that barred the defendant “from
using the [I]nternet without prior written permission from his
probation officer”); United States v. West, 333 F. App’x 494,
495 (11th Cir. 2009) (upholding “a lifetime prohibition on [the
defendant’s] use of a computer other than for employment
purposes”); United States v. Dove, 2009 WL 2606878, at *2
(11th Cir. Aug. 24, 2009) (upholding a special condition calling
for the defendant to “refrain from possessing or using a
computer with Internet service”).
18
condition’s validity is “a close question.” Appellee’s Brief 26.
There is little doubt that Heckman’s extensive history as

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See also Voelker, 489 F.3d at 145 (“The ubiquitous10
presence of the [I]nternet and the all-encompassing nature of the
information it contains are too obvious to require extensive
citation or discussion.”); Freeman, 316 F.3d at 392 (“[A] total
ban on [I]nternet access prevents use of email, an increasingly
widely used form of communication, and other common-place
computer uses such as getting a weather forecast or reading a
newspaper online.”).
19
a sex offender justifies appropriate restrictions whenever he is
released from prison. To repeat, the District Court recognized
that Heckman’s criminal conduct was “almost unbroken from
the time he was nineteen years old until today at age forty-
eight.” App. 49-50. For this understandable reason, the
Government argues that the “most significant” factor in this case
is that “Heckman presents a record of sexual abuse of children
which is not remotely matched in any of this Court’s prior
cases.” Appellee’s Brief 32.
This record cannot be ignored. However, Heckman’s
criminal history alone does not justify the unprecedented ban on
Internet access imposed by the District Court in this case.
Indeed, we have long recognized the draconian nature of
Internet bans—even in cases where we have upheld them. See,
e.g., Crandon, 173 F.3d at 128 (“[The three-year ban on Internet
access] may hamper [the defendant’s] employment opportunities
upon release, as well as limit his freedoms of speech and
association.”). Furthermore, even when faced with a well-10

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Heckman offers alternative options in his brief, including11
the “use of software that filters and controls accessible content,
and/or software that monitors use of the [I]nternet.” Appellant’s
Brief 19-20.
20
established sex offender, special conditions still must be tailored
to the underlying conduct at issue in the given case, as well as
any related actions in the defendant’s criminal past.
Heckman is undoubtedly a serial offender. Yet he has
never been convicted of criminal behavior that involved the use
of the Internet either to lure a minor into direct sexual activity
(such as Crandon) or to entice another to exploit a child directly
(such as Thielemann). In cases upholding similar (though less
restrictive) Internet bans, the predatory use of the Internet in the
act itself was essential to our holding. In cases involving the
straight transmission or possession of child pornography, such
as Freeman, we rejected the ban. To uphold Heckman’s ban
under our precedent, we would have to make the inferential leap
that, given his criminal history, it is likely that he will eventually
use the Internet to exploit a minor directly (and do so late in his
70s)—not just distribute child pornography. Although such an
inference may be plausible, there is no indication that Heckman
has ever used the Internet for such a purpose. Furthermore,
there are alternative, less restrictive, means of controlling
Heckman’s post-release behavior, including the computer11
monitoring condition already imposed by the District Court in

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This unchallenged condition provided for extensive12
computer monitoring, paid for by Heckman:
The defendant shall submit to an initial inspection by the
United States Probation Office and to any examinations
during supervision of the defendant’s computer and any
devices, programs, or applications. The defendant shall
allow the installation of any hardware or software
systems which monitor or filter computer use. The
defendant shall abide by the standard conditions of
computer monitoring and filtering that will be approved
by this Court. The defendant is to pay the cost of the
computer monitoring not to exceed the monthly
contractual rate, in accordance with the probation
officer’s discretion.
App. 6. At Heckman’s sentencing hearing, the District Court
did not discuss any alternative options to the unconditional
Internet ban that it ultimately imposed. In addition, it did not
explain its reasons for reaching beyond the computer monitoring
condition to include an unconditional ban on Internet access.
21
this case (and that Heckman has not challenged).12
We do not hold that limited Internet bans of shorter
duration can never be imposed as conditions of supervised
release for this type of conduct, but when placed within the
context of related precedents, the unconditional, lifetime ban
imposed by the District Court in this case is so broad and

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22
insufficiently tailored as to constitute “plain error.” We thus
hold that this ban involved a “greater deprivation of liberty than
is reasonably necessary.” 18 U.S.C. § 3583(d)(2).
B. The Mental Health Requirement
Heckman also challenges the mental health condition
imposed on him by the District Court as an impermissible
delegation of judicial authority to the United States Probation
Office. The challenged condition states: “The defendant shall
participate in a mental health program for evaluation and/or
treatment as directed by the United States Probation Office. The
defendant shall remain in treatment until satisfactorily
discharged and with the approval of the United States Probation
Office, including sex offender treatment.” App. 6. There is
ample support for this special condition in the record. For
instance, Heckman’s extensive criminal history of exploiting
children alone demonstrates a “proclivity for committing sexual
offenses involving minors and child pornography and [an]
apparent inability to control himself.” Id. at 56-57. Such a
proclivity undoubtedly justifies a mental health treatment
program.
The question remains, however, whether the challenged
condition delegates too much authority to the Probation Office.
We think not in this case.
In challenging that condition, Heckman relies heavily on

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Though these two provisions are superficially similar, they13
arguably carry slightly different meanings—with the language
in Pruden (“at the discretion of”) possibly more open-ended
than the language in our case (“as directed by”). It is clear,
however, that the reading in Pruden did not turn on any
semantic differences, but instead on the lack of any evidence to
support the District Court’s imposition of the mental health
condition. This renders Pruden quite unlike our case.
23
our decision in United States v. Pruden, 398 F.3d 241 (3d Cir.
2005). The special condition we rejected there seems on its face
similar to the one here. It read: “The defendant shall participate
in a mental health treatment program at the discretion of the
probation officer.” Id. at 248. Even while striking down this13
condition, we conceded that “probation officers must be allowed
some discretion in dealing with their charges,” as “courts cannot
be expected to map out every detail of a defendant’s supervised
release.” Id. at 250.
The principle is that we must “balance[] the need for
flexibility with the constitutional requirement that judges, not
probation officers, set the terms of a sentence.” Id. at 251. It
works out practically as follows:
If [the defendant] is required to participate in a mental
health intervention only if directed to do so by his
probation officer, then this special condition constitutes
an impermissible delegation of judicial authority to the

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24
probation officer. On the other hand, if the District Court
was intending nothing more than to delegate to the
probation officer the details with respect to the selection
and schedule of the program, such delegation was proper.
Id. (quoting United States v. Peterson, 248 F.3d 79, 85 (2d Cir.
2001)).
There were special, fact-specific circumstances in Pruden
that led us to reject the latter reading of the condition. The
mental health condition was “not recommended in the
[Presentence Report] or requested by the government,” id. at
245; there was no evidence of, and no findings for, the need for
mental health treatment, id. at 249, 251 n.5; and, to seal the
matter, at oral argument “the [G]overnment conceded . . . that
the District Court did not intend the probation officer’s
discretion to extend only to the choice of particular programs.”
Id. at 251 n.5 (emphasis added).
In our case, however, Heckman’s extensive history of
exploiting children certainly supports reading the condition as
a permissible form of delegation. Furthermore, unlike in
Pruden, the Government here did not concede that the probation
officer’s discretion in our case extended past the choice and
scheduling of particular mental health programs. For instance,
when Heckman requested a specific correctional facility at his
sentencing hearing, the Government emphasized the importance
of providing mental health treatment during the time of his

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incarceration, insisting that Heckman be housed in a facility
with “some type of sex offender treatment.” App. 41-42.
Finally, we concede that, taken in isolation, it is possible
to read the phrase “shall participate in a mental health program
for evaluation and/or treatment” as allowing the Probation
Office to order evaluation but not treatment—a potentially
impermissible delegation of authority under Pruden. Id. at 6
(emphasis added). The second sentence of the release condition,
however, leads us to reject such a reading, as Heckman “shall
remain in treatment . . . , including sex offender treatment,” a
clause most naturally read as requiring mandatory treatment and
thus limiting the Probation Office’s discretion. Id. (emphasis
added).
In this context, we read Heckman’s provision as
permissibly “‘delegat[ing] to the probation officer the details
with respect to the selection and schedule of [the defendant’s
mental health treatment] program.’” Pruden, 398 F.3d at 251
(quoting Peterson, 248 F.3d at 85). Participation in the mental
health treatment program itself is mandatory, and only the
details are to be set by the Probation Office. Thus, we see no
“plain error” in imposing Heckman’s mental health condition of
supervised release.
C. The Restriction on Contact with Minors
Heckman’s final challenge is to the “no minors”

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condition imposed by the District Court as an improper
delegation of authority to the Probation Office. The challenged
provision states:
The defendant shall follow the directions of the United
States Probation Office regarding any contact with
children of either sex under the age of 18. The defendant
shall not obtain employment or perform volunteer work
which includes, as part of its job/work description,
contact with minor children.
App. 6.
On its face this condition delegates full discretion over
Heckman’s contact with minors to the Probation Office. Even
the Government concedes that this condition should be rejected
as an improper delegation of authority to the Probation Office
and remanded to the District Court for further clarification. See
Appellee’s Brief 46. We agree.
Under Pruden, “[t]he most important limitation [on the
District Court’s power to delegate] is that a probation officer
may not decide the nature or extent of the punishment imposed
upon a probationer.” Pruden, 398 F.3d at 250. “This limitation
extends not only to the length of a prison term imposed, but also
to the conditions of probation or supervised release.” Id. In

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The District Court there imposed a special condition that14
“[t]he defendant shall not associate with children under the age
of 18 except in the presence of a responsible adult who is aware
of the defendant’s background and current offense and who has
been approved by the probation officer.” Voelker, 489 F.3d at
154.
Even if the “no minors” condition did not give discretion15
to probation officers, we have required limitations on
association with minors to be tailored to the specific situations
involved and not to be broader than necessary to avoid the harm
the Court is concerned with. Voelker, 489 F.3d at 154–55
(remanding for clarification on the intended scope of a “no
minors” condition that potentially included an offender’s own
children); see also United States v. Loy, 237 F.3d 251, 270 (3d
27
Voelker, we struck down a similar “no minors” condition as14
“delegat[ing] absolute authority to the Probation Office to allow
any such contacts [with minors] while providing no guidance
whatsoever for the exercise of that discretion.” 489 F.3d at 154.
In that situation, the “Probation Officer bec[ame] the sole
authority for deciding if Voelker w[ould] ever have
unsupervised contact with any minor, including his own
children, for the rest of his life.” Id. We therefore barred such
“unbridled delegation.” Id.
We agree with the parties and hold that Heckman’s “no
minors” condition is an impermissible delegation of authority to
the Probation Office and thus constitutes “plain error.”15

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Cir. 2001) (construing narrowly a “no minors” condition that
potentially included a childless offender’s future children).
As the District Court noted at Heckman’s sentencing16
hearing,
It may be that we don’t know who [the children] are, but
someone knows who they are and could find out, which
is part of the horrible consequences of child
pornography; children who are victimized at an age when
they don’t have the discretion or the ability to protect
themselves [a]re victimized in a way where they continue
to be victimized each time the images are replayed or
redepicted or circulated.
App. 55.
28
* * * * *
Cases involving child pornography are among the most
troubling we encounter. The victims are innocent and
defenseless, the materials illicit and timeless. Heckman16
emailed 18 images of children engaging in sexually explicit
conduct to a stranger in an Internet chat room. This was only
the latest offense by a lifelong sexual predator, and it was
appropriate for the District Court to sentence him to 15 years’
imprisonment and a lifetime term of supervised release.
Yet the Court’s discretion in these matters (though

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justifiably broad) is not unlimited. When imposing special
conditions of supervised release, it is limited to those conditions
that “involve[] no greater deprivation of liberty than is
reasonably necessary.” 18 U.S.C. § 3583(d)(2). Furthermore,
the Court may not delegate to a probation officer the authority
to “decide the nature or extent of the punishment imposed upon
a probationer.” Pruden, 398 F.3d at 250. In vacating certain of
the District Court’s special conditions in this case, we do not
mean to question the need for release supervision responsive to
Heckman’s specific offense and his lifetime of misdeeds. To do
so, however, requires a balancing of considerations that affect
not only this case, but those that follow.
For these reasons, we affirm the mental health condition
imposed by the District Court as one of the conditions of
supervised release. However, we vacate the special conditions
pertaining to Internet access and interaction with minors. Thus
we remand for resentencing consistent with this opinion.

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