United States v. Green, No. 08-5548-cr (2d Cir. August 13, 2010) (per curiam)
An unconstitutionally vague condition of supervised release is the theme of this most recent per curiam opinion.
Defendant Green, while serving a long prison sentence for crack cocaine trafficking, was convicted of possessing a weapon and marijuana in prison. As part of his sentence, the judge imposed a condition of supervised release prohibiting him from associating with the Bloods or any other criminal street gang and from “the wearing of colors, insignia, or obtaining tattoos or burn makes relative to” such a gang.
The circuit, upholding the associational prohibition, struck the rest of the condition. The “color prohibition” did not provide Green with “sufficient notice of the prohibited conduct. The range of possible gang colors is vast and indeterminate.” One police department manual’s list of gang colors includes white, blue, black or combination of the two, with red, green, brown and purple. “Eliminating such a broad swatch of clothing colors would make [Green’s] daily choice of dress fraught with potential illegality. People of ordinary intelligence would be unable to confidently comply with this condition.”
While the court held out the possibility that a sufficiently clear prohibition would pass constitutional muster, for example if it had a “limiting list of the colors or insignia” typically associated with “any particular gangs to guide Greene in his clothing choices,” this condition lacked the necessary clarity.