United States v. Washington In the

17‐2841‐cr
United States v. Washington
In the 1
United States Court of Appeals 2
for the Second Circuit 3
4
5
6
A UGUST TERM 2017 7
8
No. 17‐2841‐cr 9
10
U NITED S TATES OF AMERICA, 11
Appellee, 12
13
v. 14
15
B RIAN WASHINGTON, a/k/a B RIAN E. W ARD, a/k/a B RIAN K. WARD, 16
a/k/a B RIAN E. WASHINGTON, a/k/a B RIAN E UGENE WASHINGTON, a/k/a 17
B RIAN WARD, a/k/a EUGENE B RIAN WARD, 18
Defendant‐Appellant. 19
20
21
On Appeal from the United States District Court 22
for the Southern District of New York 23
24
25
A RGUED: A UGUST 15, 2018 26
D ECIDED: S EPTEMBER 18, 2018 27
28
29

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Before: C ABRANES and POOLER , Circuit Judges, and O ETKEN, District 1
Judge.* 2
3
Defendant‐Appellant Brian Washington (“Washington”) 4
appeals the sentence imposed for his conviction on a charge of failure 5
to register as a sex offender in violation of 18 U.S.C. § 2250. On appeal, 6
Washington argues that the United States District Court for the 7
Southern District of New York (George B. Daniels, Judge) unlawfully 8
modified his sentence by including in the written judgment a duty to 9
submit to polygraph testing that was not mentioned during 10
pronouncement of sentence. We hold that inclusion of a duty to submit 11
to polygraph testing is, in the circumstances presented here, an 12
impermissible modification of the spoken sentence. We REMAND the 13
cause to the District Court for entry of an amended judgment from 14
which the reference to polygraph testing has been deleted. 15
16
JACOB WARREN, Assistant United States 17
Attorney (Anna M. Skotko, Assistant United 18
States Attorney, on the brief), for Geoffrey S. 19
Berman, United States Attorney for the 20
* Judge J. Paul Oetken, of the United States District Court for the Southern
District of New York, sitting by designation.

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Southern District of New York, New York, 1
NY, for Appellee. 2
3
A LLEGRA G LASHAUSSER , Appeals Bureau, 4
Federal Defenders of New York, Inc., New 5
York, NY, for Defendant‐Appellant. 6
7
JOSE A. C ABRANES , Circuit Judge: 8
Defendant‐Appellant Brian Washington (“Washington”) 9
appeals the sentence imposed for his conviction on a charge of failure 10
to register as a sex offender in violation of 18 U.S.C. § 2250. On appeal, 11
Washington argues that the United States District Court for the 12
Southern District of New York (George B. Daniels, Judge) unlawfully 13
modified his sentence by including in the written judgment a duty to 14
submit to polygraph testing that was not mentioned during 15
pronouncement of sentence. We hold that inclusion of a duty to submit 16
to polygraph testing is, in the circumstances presented here, an 17
impermissible modification of the spoken sentence. We REMAND the 18
cause to the District Court for entry of a modified written judgment 19
from which the reference to polygraph testing has been deleted. 20
I. 21
This appeal arises from a discrepancy between the terms of 22
sentence that the District Court pronounced in Washington’s presence 23

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at the sentencing hearing and the terms of sentence that the District 1
Court entered in its written judgment. 2
Washington’s sentence includes a five‐year term of supervised 3
release. In the Presentence Investigation Report (“PSR”) prepared 4
before sentencing and reviewed by all parties, including the 5
defendant, the United States Probation Office recommended that the 6
District Court impose the usual mandatory and standard conditions 7
and several special conditions for the term of supervised release. One 8
proposed special condition required Washington to participate in a 9
sex‐offender‐treatment program and to comply with all the rules of the 10
program, “including submission to polygraph testing.” PSR at 24, 11
United States v. Washington, No. 1:16‐cr‐00628‐GBD (S.D.N.Y. July 27, 12
2017), ECF No. 21. The entire proposed special condition ran as 13
follows: 14
You must undergo a sex‐offense‐specific evaluation and 15
participate in an outpatient sex offender treatment and/or 16
outpatient mental health treatment program approved by 17
the U.S. Probation Office. You must abide by all rules, 18
requirements, and conditions of the sex offender 19
treatment program(s), including submission to polygraph 20
testing. You must waive your right of confidentiality in 21
any records for mental health assessment and treatment 22
imposed as a consequence of this judgment to allow the 23
probation officer to review your course of treatment and 24
progress with the treatment provider. You must 25
contribute to the cost of services rendered based on your 26

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ability to pay and the availability of third‐party 1
payments. The Court authorizes the release of available 2
psychological and psychiatric evaluations and reports, 3
including the presentence investigation report, to the sex 4
offender treatment provider and/or mental health 5
treatment provider. 6
Id. (emphasis added). 7
The District Court imposed this special condition at 8
Washington’s sentencing hearing, together with all the other 9
mandatory, standard, and special conditions of supervised release that 10
the PSR had recommended. But the District Court stated the sex‐ 11
offender‐treatment special condition more briefly than the PSR had. 12
Omitted, among other things, was any explicit reference to polygraph 13
testing. The District Court instead stated the condition in these terms: 14
The defendant also must undergo a sex‐offense‐specific 15
evaluation and participate in an outpatient sex offender 16
treatment and/or outpatient mental health treatment 17
program approved by the United States Probation Office. 18
Transcript at 23, Washington (Oct. 16, 2017), ECF No. 27. 19
After pronouncement of sentence, the District Court restated the 20
sex‐offender‐treatment special condition in a written judgment. The 21
special condition as restated in the judgment runs longer than the 22
version of the condition at the hearing. It is, however, identical in all 23
material respects to the version of the condition proposed in the PSR. 24

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In particular, it includes the PSR’s language—omitted from the spoken 1
sentence—imposing a duty of “submission to polygraph testing.” The 2
entire written special condition reads: 3
Defendant shall undergo a sex‐offense‐specific evaluation 4
and participate in an outpatient sex offender treatment 5
and/or outpatient mental health treatment program 6
approved by the United States Probation Office. 7
Defendant shall abide by all rules, requirements, and 8
conditions of the sex offender treatment program(s), 9
including submission to polygraph testing. Defendant shall 10
waive his right of confidentiality in any records for 11
mental health assessment and treatment imposed as a 12
consequence of this judgment to allow the probation 13
officer to review your course of treatment and progress 14
with the treatment provider. Defendant shall contribute 15
to the cost of services rendered based on his ability to pay 16
and the availability of third‐party payments. The Court 17
authorizes the release of available psychological and 18
psychiatric evaluations and reports, including the 19
presentence investigation report, to the sex offender 20
treatment provider and/or mental health treatment 21
provider. 22
Judgment at 5 (emphasis added), Washington (Sept. 8, 2017), ECF No. 23
25. 24

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Counsel for the defense had reviewed the PSR—which 1
contained the language imposing the polygraph requirement—with 2
Washington before sentencing, but Washington did not object at 3
sentencing to the PSR’s recommendations of special conditions. 4
Washington now appeals seeking deletion of the duty to submit 5
to polygraph testing from his written sentence. 6
7
II. 8
A. 9
We review de novo the asserted discrepancy between the 10
spoken and written terms of Washington’s sentence. It is a question of 11
law whether the spoken and written terms of a defendant’s sentence 12
differ impermissibly. United States v. Jacques, 321 F.3d 255, 262 (2d Cir. 13
2003). In principle, we review an issue of law for plain error when the 14
defendant has failed to raise the issue in the district court. See United 15
States v. Sofsky, 287 F.3d 122, 125 (2d Cir. 2002) (relaxing the “rigorous 16
standards of plain error review” to correct an unobjected‐to sentencing 17
error of which the defendant did not have advance notice). But when 18
the point of law on appeal is a term of the defendant’s sentence and 19
the defendant lacked prior notice in the district court that the term 20
would be imposed, we will review the issue de novo even if the 21
defendant failed to raise an objection in the district court. See id. at 125– 22
26. Washington’s objection satisfies these conditions. Although not 23
raised in the District Court, the objection concerns his sentence, and it 24
concerns a matter about which he lacked advance notice. Washington 25

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knew in advance, from reviewing the PSR with his lawyer, that the 1
District Court might include a polygraph‐testing requirement in his 2
conditions of supervised release. But he could not have known before 3
issuance of the written judgment that the District Court would include 4
polygraph testing in the written version of his sentence after omitting 5
any mention of it from the spoken version. 6
B. 7
The Federal Rules of Criminal Procedure provide that a 8
defendant must be present at pronouncement of sentence. Fed. R. 9
Crim. P. 43(a)(3). Accordingly, after a sentence has been pronounced, 10
the written judgment may clarify the terms of the spoken sentence, see 11
United States v. Truscello, 168 F.3d 61, 63 (2d Cir. 1999), but if there is a 12
substantive discrepancy between the spoken and written versions of a 13
defendant’s sentence, the spoken version ordinarily controls, United 14
States v. Rosario, 386 F.3d 166, 168–69 (2d Cir. 2004). We have derogated 15
from this general rule and allowed a written modification of the 16
spoken sentence only in cases in which the modification added a 17
condition of supervised release classified as “mandatory,” 18
“standard,” or “recommended” in United States Sentencing 19
Guidelines sections 5D1.3(a), (c), and (d) or added mere “basic 20
administrative requirements that are necessary to supervised release.” 21
Rosario, 386 F.3d at 169 (internal quotation marks omitted). 22
We conclude here that the written judgment’s additional 23
language requiring “submission to polygraph testing” is an 24
impermissible modification of the spoken sentence. Polygraph testing 25

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can be onerous for a defendant, who may feel at risk of incriminating 1
him‐ or herself. It is also not a necessary or invariable part of sex‐ 2
offender treatment. Many district judges require polygraph testing as 3
part of the sex‐offender‐treatment condition in at least some cases. See 4
generally Migdalia Baerga‐Buffler & James L. Johnson, Sex Offender 5
Management in the Federal Probation and Pretrial Services System, 70 Fed. 6
Prob. 13 (2006); Michael Palmiotto & Scott MacNichol, Supervision of 7
Sex Offenders: A Multi‐Faceted and Collaborative Approach, 74 Fed. Prob. 8
27 (2010). But we learned at oral argument that some district judges, 9
including some judges in the district courts of this Circuit, never allow 10
it. 11
III. 12
In summary, we hold that, in the circumstances presented here, 13
inclusion of a duty of “submission to polygraph testing” in 14
Washington’s written sentence constituted an impermissible 15
modification of the spoken sentence, from which those words were 16
omitted, because polygraph testing is burdensome to the defendant 17
and not a necessary or invariable component of sex‐offender 18
treatment. 19
The cause is REMANDED to the District Court for entry of an 20
amended judgment from which the words “including submission to 21
polygraph testing” have been deleted. 22

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