- The Washington Times - Thursday, January 3, 2002

The federal appeals court that refused last year to let a federal judge declare the Internet off limits to a child pornographer has approved another tactic to detour the convict from the child-pornography superhighway.

The three-judge panel of the U.S. 10th Circuit Court of Appeals said it put aside constitutional misgivings to uphold a requirement that Russell Walser obtain probation-office permission before browsing the Internet for three full years after he completes 27 months in federal prison for possessing child pornography.

"The condition more readily accomplishes the goal of restricting use of the Internet and more delicately balances the protection of the public with the goals of sentencing," said the 3-0 opinion written by Circuit Judge Stephanie K. Seymour.

Judge Seymour said, however, the panel believes the requirement would impose a "greater deprivation of liberty than is reasonably necessary" if probation officers unreasonably refuse permission to use "one of the central means of information-gathering and communication in our culture today."

The ruling, posted Monday in Denver, probably will be appealed to the Supreme Court, assistant federal public defender Jenine Jensen said yesterday.

The extent to which Internet restrictions are constitutional produces a split between the 10th Circuit, which forbade a total ban in a March 27 decision, and the 5th Circuit, which ruled Nov. 19 that a court did not go too far when it prohibited a Texas child pornographer from having cameras or computers after leaving prison.

Assistant U.S. Attorney David A. Kubichek called the decision a victory but noted the difficulty of enforcing such an order.

"At least for a starting point this is a not-unacceptable condition," Mr. Kubichek said in a telephone interview from his Casper, Wyo., office. "The court ruled the judge is being reasonably flexible, and this can more easily be managed if issues arise."

The appeals court noted that neither Walser nor his private attorney at sentencing in Wyoming objected to the condition when it was imposed.

That meant the appeals court decided District Judge Alan B. Johnson had not committed "plain error" but needed only to confirm he did not exceed his discretion.

"If we get another case on this where there was an objection, we'd be in a lot better posture," Miss Jensen said yesterday.

Walser was arrested at the Radisson Hotel in Casper, Wyo., on June 1, 2000, after the hotel manager reported finding cocaine and marijuana in Room 617.

Walser was seized along with Debbie Wilcox, an adult whose revealing photo taken in that room was the desktop "wallpaper" for Walser's computer that state investigators seized in the room.

Miss Jensen was distressed that the appeals court also ruled the large 22-gigabyte memory of Walser's computer created a legal "exigency" that justified taking the machine. A Wyoming detective found child pornography on the computer while executing a warrant seeking evidence of drug trafficking.

On March 27, the 10th Circuit overturned a separate order by a New Mexico federal judge that said pornographer Robert E. White "shall not possess erotica and shall not possess a computer with Internet access."

The court said that order would have blocked White from looking at a weather report or online newspaper at home, but not prevent him from using a library computer to view pornography.

In 1999 the 3rd Circuit said a trial judge had the discretion to impose a similar restriction on a 39-year-old New Jersey man sentenced to 61/2 years in connection with molestation of a 14-year-old Minnesota girl, who became suicidal and was admitted to a mental institution.

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