Most people would agree that cell phones are a necessary element of daily life. A convicted man, who was released from jail after serving about a year of a five-year sentence for wire fraud, impersonating a federal officer, and stalking a woman with whom he was having an affair, was banned from using his cell phone without permission of his probation officer. He appealed, arguing the cell phone prohibition was overbroad. The Ninth Circuit disagreed.

Ivan Isho, 44, the defendant/appellee, challenged the special condition on his cell phone use that was imposed by Judge Dale A. Drozd of the Eastern District of California. His attorney, Kristi A. Hughes, argued that the condition amounted to a total ban on cell phone use since her client would never know whether he would be able to obtain the necessary permission.

According to a press release from the U.S. Attorney’s Office for the Eastern District of California, Isho of Peoria, Arizona, was sentenced to five years in prison in May 2022. He was released in 2023 for undisclosed reasons. A federal jury found him guilty of pretending to be an FBI Special Agency and “falsely representing to his victims, members of the Assyrian community in Ceres, that he could help them obtain visas for their family members living outside the United States.” Isho also showed fake FBI credentials and a firearm, which led his victims to pay him “thousands of dollars” by interstate wire transmission. He never actually helped the family to obtain the promised visas.

In addition, between April 2017 and 2018, Isho harassed a female victim when he pretended to be an FBI agent. At trial he claimed that the fake FBI credentials were only “part of a Halloween costume.” But the government presented evidence of his repeated phone calls and threatening voicemail messages. Drozd found this false trial testimony amounted to “obstruction of justice.”

A three-judge panel of the Ninth Circuit Court of Appeal, composed of Circuit Justices Richard Clifton, N. Randy Smith, and Eugene E. Siler, United States Circuit Judge for the Sixth Circuit Court of Appeal who was sitting by designation, unanimously concluded that Isho’s case was “suitable for decision without oral argument.”

In a brief submitted by Isho’s attorney Kristi A. Hughes, she argued that the conditions of the cell phone ban amounted to a total ban, since “it was not known whether permission from the parole officer would ever be granted. Hughes alleged, “This overbroad condition burdens substantially more speech than is necessary to protect Nancy (the court referred to the married woman with whom Isho was having an affair as either Nancy or N.M.) and her husband from the risk that Isho would contact them in the future.” She said the ban was not “narrowly tailored” and limited Isho’s access to the internet, which was needed for him to “receive and exchange ideas.” The attorney urged the court to find that Drozd’s prohibition infringed on her client’s First Amendment right to free speech.

Hughes pointed out that almost all cell phones can connect to the internet, thus allowing users to access the apps that are relied on for daily life. Internet access is critical for such necessities as locating ride-sharing companies, ordering meals, banking, collecting fees, and allowing users to contact and keep up with family and friends. Hughes also argued that the cell phone ban would prevent her client from resuming his employment as an Uber driver.

The government responded by citing several disturbing facts about Isho’s pre-incarceration behavior. They said that Isho’s cell phone was his “primary tool” for terrorizing N.M. They also noted that there was no First Amendment violation because there were ample alternative ways to communicate. They argued that the cell phone restriction was “reasonable and tailored to address Isho’s stalking conduct comprising 12,000 unwanted calls to his victim over the course of two years.”

The Ninth Circuit was not persuaded. The unanimous opinion concluded, “The district court did not err in providing its instructions on the federal stalking charge.” The facts revealed that after his affair with Nancy was ended by Isho, he harassed her and her husband by calling them by telephone, sometimes hundreds of times a day. Hughes also argued that the cell phone ban was erroneous because the “district court failed to include a “subjective intent to threaten” element in the jury instructions for federal stalking.”

This was not correct. Citing precedent about “true-threats case law,” the Ninth Circuit said, “the district court did in fact require the jury to find per its instructions that subjectively had the intent to “kill, injure, harass, intimidate” N.M. Because of this instruction, the opinion determined that “… the instructions contained a “mental-state element” that survives a First Amendment challenge, even if we assume without deciding, as we do here, that true-threats case law applied to these facts.”

The opinion also found that the probation officer’s approval for each call was proper. It concluded that “The condition of supervised release was neither overly broad nor violative of Isho’s First Amendment rights. Isho used his cell phone to intimidate and contact N.M. hundreds of times a day; the prohibition therefore has a nexus with the underlying conviction.”

The Ninth Circuit next outlined the District Court’s authority to prevent a defendant from “disparaging his victims through communications directed to the victims personally.” This conclusion was reinforced by an explanation that several alternatives would be available to Isho. Isho could easily find other ways to communicate, including a landline, desktop, or laptop computer. They also said that the “supervised release” restrictions were not unreasonable.

To support this conclusion, the Ninth Circuit cited United States v. Terrigno, a 1988 case in their circuit that found “The mere fact that a condition restricts a probationer’s freedom to perform otherwise lawful activities is not dispositive of the reasonableness of the condition.” For these reasons, Judge Drodz’s sentence was affirmed.