Supervised Splits: Vagueness and Constitutionality in the Conditions of Federal Supervised Release

BACKGROUND

Supervised release and parole are similar tools in the federal criminal justice system, and serve similar purposes. Released prisoners living under the conditions of both supervised release and parole are in the custody of their assigned parole officer and must also follow court-imposed conditions and guidelines to remain out of prison—like the conditions suggested in the Federal Sentencing Guidelines.

            Take, for example, Soulemane Barry, who used fake credit, debit, and gift card to make purchases for approximately two hours. He was convicted of attempting to use “counterfeit access devices” in violation of 18 U.S.C. § 1029. As part of his sentence, he was given two years of supervised release, with many commonly applied supervised release conditions. Specifically, Barry was prohibited from “frequent[ing] places where controlled substances are illegally sold, used, distributed, or administered.”

            Barry challenged the District Court’s imposition of this condition, arguing that it was unconstitutionally vague. In short, Barry argued that the condition “neither specifies how many trips result in ‘frequent[ing]’ sites of drug activity, nor does it clarify whether Barry must knowingly be in such a place to violate it.” Ultimately, in December 2018, the Third Circuit rejected Barry’s argument in United States v. Barry. The Third Circuit’s decision means that another federal appellate court has taken a position in a burgeoning circuit split.

THE ISSUE

Is a supervised release condition that prohibits “frequent[ing] places where controlled substances are illegally sold, used, distributed, or administered” unconstitutionally vague?

THE SPLIT

The Third Circuit did not create the circuit split on this issue—prior to its decision, the Seventh, Ninth, and Tenth Circuits had all taken a position. The Ninth and Tenth Circuits, in United States v. Phillips (2012) and United States v. Llantada (2016), respectively, held that the condition in question isn’t unconstitutionally vague. In Phillips, the Ninth Circuit focused on a “common sense reading,” drawing on the dictionary definition of “frequent.” It analogized the term “frequent” to “associate,” which it had previously held that “‘men of common intelligence’ could understand.” The court concluded that “a reasonable person would understand the prohibition on ‘frequent[ing] places’ where illegal drugs are used or sold prohibits [a defendant] from knowingly going to a specific place where drugs are illegally used or sold, but that it does not prohibit him from living in Seattle or going to a given neighborhood simply because a person is selling drugs somewhere within that neighborhood.”

In Llantada, the Tenth Circuit’s reasoning echoed the Ninth’s, but rejected the appellant’s argument much more cursorily. The court there noted that it “reject[s] this type of literal reading of the condition,” and observed, “The probation officer, and any judges tasked with deciding whether Llantada violated the condition, must interpret the condition in a reasonable, commonsense manner. We have little doubt that the condition allows for reasonable interpretation and enforcement.”

The Seventh Circuit, on the other hand, struck down several supervised release conditions in United States v. Thompson (2015) among them, the prohibition on “frequent[ing] places where controlled substances are illegally sold, used, distributed, or administered.” In Thompson, the court criticized this prohibition as providing no “indication of how many trips constitute ‘frequent[ing]’ such places.” The Seventh Circuit rejected the Ninth’s approach in Phillips, arguing that the limitations of supervised release should be clearly established in the condition itself, because “otherwise the defendant may think himself bound by the broader interpretation.” The court summarized its concern with a snappy example: “If you’re 90 percent certain that purchasing girl scout cookies from someone who rings your doorbell wouldn’t violate a condition of supervised release, do you want to risk going back to prison because you may have guessed wrong? If out of caution therefore you decline to purchase the cookies, the sentencing guideline would deter lawful conduct, and thus be overbroad.”

            In arriving at its opinion that the District Court didn’t err in imposing this condition, the Third Circuit took a relatively neutral position in Barry—it upheld the condition but cautioned the District Court against its imposition. The court noted the posture of the case and the legal standard required—“any mistake by the District Court in imposing this condition is not plain error”—as its main justification for upholding the condition. But the court urged the District Court to reconsider in its conclusion: “We recognize, however, given the split of authority . . . Barry’s concerns regarding these conditions are not unwarranted. We therefore encourage the District Court . . . to impose the updated condition recommended by the Sentencing Guidelines in place of the controlled-substance and association conditions.”

CONCLUSION

            Suppose that a man is released from prison on a term of supervised release. Deprived of his ability to enjoy his favorite food, he’s excited to return to his favorite hole-in-the-wall restaurant. But the restaurant happens to be in an area known for high drug use. Would visiting the restaurant violate the terms of his supervised release, if it contains the aforementioned condition? What factors would be relevant in answering this question: Must people inside or immediately outside the restaurant be using drugs? Is it a problem if people just near the restaurant are?

            The different circuits’ answers to this question illustrates the key problem with different interpretations of the same release conditions. The activities of different parolees or supervised releasees in different places may be chilled, depending on how their circuit answers this question. A ruling by the Supreme Court on this narrow, technical question—or a broader ruling that more generally addresses constitutional vagueness in release conditions—would provide a resolution not only to this specific question, but would also make supervised release and parole more transparent. Courts and parole officers would be able to more effectively implement these programs, and releasees and parolees would be able to more effectively abide by them.

Reading the Tea Leaves of the Tea Rose-Rectanus Doctrine: What Test Should Be Used to Determine “Good Faith” Trademark Use?

BACKGROUND

 The Tea Rose-Rectanus Doctrine is a common law trademark canon that establishes the geographic extent of trademark rights held by senior users of a mark. Arising out of two century-old Supreme Court cases, the doctrine is a defense to trademark infringement that allows junior users of a trademark to have priority for a trademark if they use the mark (1) in “good faith”; (2) in a geographical territory remote and distinct from the territory where the senior uses the trademark; and (3) in a geographic region where the junior use of the mark will not be mistaken for the senior user of the same mark.

Even when a trademark registrant successfully obtains a federal nationwide trademark, their exclusive rights to that trademark does not completely extend across and cover the entire United States. The 9th Circuit explained how the common-law rights of a trademark holder practically work in Stone Creek, Inc. v. Omnia Italian Designs, Inc. (2017):

Under this rule, already-established common-law rights are carved out of the registrant’s scope of protection. In other words, the geographic scope of a senior user’s rights in a registered trademark looks like Swiss cheese: it stretches throughout the United States with holes cut out where others acquired common-law rights prior to the registration.

THE ISSUE

The issue with the Tea Rose-Rectanus Doctrine is the meaning of “good faith” usage a junior trademark user must have to successfully use the defense. For example, does a junior’s knowledge of the senior’s trademark rights constitute a lack of “good faith” resulting in the elimination of the availability of a Tea Rose-Rectanus defense? A circuit split has developed in answering this question.

THE SPLIT

The 9th Circuit recognized the split in this question in Omnia, and observed that the circuits divided into two general camps: (1) those holding that knowledge on its own destroys good faith and (2) those holding that knowledge is merely part of a larger “good faith” test. At its heart, the question is whether mere knowledge is sufficient to destroy good faith or if that knowledge must be accompanied with an intent to benefit from the reputation of the senior user.

The 9th Circuit opted for the former test, and joined the 7th and 8th Circuits in holding that a junior user simply having knowledge of a senior’s use and rights is sufficient to destroy good faith on its own. The 7th Circuit defined a “good faith junior user” as one who “begins using a mark with no knowledge that someone else is already using it” in Money Store v. Harriscorp Fin., Inc. (1982). Neither the 7th nor the 8th Circuits sought to interpret a junior user’s intent with their mark use after acquiring knowledge of the senior user’s usage. All that is examined is whether the junior had that knowledge and whether they continued to use the mark—regardless of the reason why.

The 9th Circuit agreed and further contended that the original doctrine-creating cases, Hanover Star Milling Co., v. Metcalf (1916) and United Drug Co. v. Theodore Rectanus Co. (1918), support its position. The court in Metcalf (or the Tea Rose Case), held that the junior user “adopted and used [the mark] in good faith without knowledge or notice that the name ‘Tea Rose’ had been adopted or used by the [senior user], or by anybody else.”

A similar holding exists in Rectanus, which the 9th Circuit takes to mean that the omission of any mention of any element beyond simple knowledge.

The 5th and 10th Circuits split with the 7th, 8th, and 9th, however, and instead hold that knowledge alone is not sufficient to destroy good faith. The 10th Circuit, in GTE Corp. v. Williams (1986), acknowledges that there is precedent for knowledge being sufficient to destroy good faith, the court refuses to apply such a narrow test. The court held that “the ultimate focus is on whether the second user had the intent to benefit from the reputation or goodwill of the first user.” The 5th Circuit reached a similar result in Pebble Beach Co. v. Tour 18 Ltd. (1998), holding that knowledge of prior use by the senior user is just one element of a good faith test.

LOOKING FORWARD

Omnia Italian Designs filed a writ of certiorari in November 2017 seeking a definitive answer to whether mere knowledge of senior use destroys good faith in trademark use or whether knowledge is just a part of a larger “good faith test.” The Supreme Court denied the petition in May 2018, leaving the question unresolved.

Because of the certiorari denial, junior users of trademarks are held to different standards depending on where they reside in the country. Where one may be permitted to continue using a mark they have used for months, years, or decades, another may be forced to completely change the image of their business. Additionally, junior users in the 6 remaining circuits—those that have not decided which good faith test it will use—are left in the dark as to whether they will be permitted to continuing using their names and logos if they are sued.

With corporations acquiring trademarks either by absorbing smaller businesses or by filing federal trademarks for new ventures constantly, smaller businesses using the same marks may encounter legal issues with their continued use that they could not predict—and these harms flow directly from the split. A definitive and final “good faith test” for the Tea Rose-Rectanus doctrine would eliminate much of the ambiguity found in determining the viability of that doctrine as a defense and would allow business owners to situate their businesses in a way that would avoid lawsuits.