Friday, March 27, 2026
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Tung Accuses Court of Improperly Delegating Judicial Role
Newest Ninth Circuit Jurist Critiques Majority’s Greenlighting of Supervised Release Condition Ordering California Trafficker to Sex Offender Program if ‘Deemed Necessary’ by Provider as Unconstitutional
By Kimber Cooley, associate editor
The Ninth U.S. Circuit Court of Appeals yesterday upheld the imposition of a term of probation on a California man convicted of trafficking a minor that includes a requirement that he “complete an approved state-certified sex offender…program” if the course is “deemed necessary by the treatment provider,” drawing a dissent by the court’s newest judge, Eric Tung, who characterized the condition as an unconstitutional delegation of judicial powers.
At issue is a special condition of supervised release which provides:
“[The defendant must] [c]omplete a sex offender evaluation…at the direction of the court or probation officer. If deemed necessary by the treatment provider, the offender shall participate and successfully complete an approved state-certified sex offender treatment program.”
In a memorandum decision signed by Circuit Judge Lawrence VanDyke and Senior Circuit Judge Richard C. Tallman, the court declared:
“We have long recognized that district courts may…delegate authority to…the treatment provider ‘to design the course of treatment….’ Here, the district court ordered that Bragg ‘shall’…complete a…program, but required an evaluation so the provider could select the appropriate course of treatment….That satisfies our precedent….The fact that an evaluation may indicate that no program is necessary does not render this condition unconstitutional.”
Disagreeing, Tung, who assumed office on Nov. 7, pointed out that Article III of the U.S. Constitution vests the “judicial power” to impose a criminal sentence in federal courts and argued:
“The panel majority sees no constitutional problem with a federal judge delegating to someone else the power to decide whether a criminal defendant should, as part of his sentence, participate in a ‘sex offender treatment program.’ I see it differently.”
Trafficking Offense
Challenging the condition was Issac Bragg, who pled guilty in 2013 to trafficking a minor in violation of 18 U.S.C. §1591. In 2014, U.S. District Court Judge Cathy Bencivengo of the Southern District of California sentenced him to 12 years in prison to be followed by supervised release for a period of seven years.
After his term of imprisonment was completed, the defendant was arrested on pandering charges in 2023 relating to allegations that he contacted a Riverside-area teen, who was riding her bike alone, while he had materials promoting prostitution in his possession. Shortly after that incident, he faced allegations of offering up for prostitution the then-pregnant mother of his unborn child.
On Aug. 26, 2024, Bragg was found guilty of multiple violations of the terms of his release, and Bencivengo ordered him to serve six months in prison followed by a new five-year term of supervision, adding the challenged special condition. Bragg filed a notice of appeal the next day.
The majority panel addressed Tung’s concerns in a footnote, saying:
“Here, the district court was faced with a recidivist pimp who was not deterred by prior sanctions….The district court reasonably believed sex offender treatment was warranted and ordered Bragg to complete it if an evaluation showed it would help him overcome his judgment errors and conform with the court’s expectations.”
Tallman and VanDyke added:
“The practical result of the dissent’s proposed process would be to further delay sentencing pending an evaluation….The…district court ordered Bragg to complete treatment, but allowed for an off ramp without future proceedings in the unlikely event that a provider concluded that treatment would not be beneficial.”
Tung’s View
Concluding that “[s]entencing a person to undergo ‘sex offender treatment’ deprives a person of his liberty and is a judicial function” reserved to the courts under the Constitution, Tung opined:
“Of course, the judge can entertain testimony from experts in deciding whether to impose sex offender treatment. The judge can also let the probation office decide the details of where and when the treatment is to occur. But the judge cannot delegate to a ‘treatment provider’ (whomever that might be) the task of determining whether such treatment is required in the first place as part of a defendant’s sentence. That is a judge’s job.”
He continued:
“Our cases make this plain. ‘The law has, by and large, developed along the principle that, where the court makes the determination of whether a defendant must abide by a condition, and how…a defendant will be subjected to the condition, it is permissible to delegate to the probation officer the details of where and when the condition will be satisfied.’…’The most important limitation is that a probation officer [or a treatment provider] may not decide the nature or extent of the punishment imposed upon a probationer.’ ”
Arguing that “[t]he district court crossed that limitation here, he said:
“By delegating to a ‘treatment provider’ the decision to impose sex-offender treatment, the district court left it up to a third-party individual or entity to ‘decide the nature or extent’ of Isaac Bragg’s punishment.”
Overlooked Clause
Rejecting the characterization by Tallman and VanDyke of the term as a mandate to engage in a program, he remarked that the majority “overlooks” the “if” clause and wrote:
“The panel majority states that ‘the district court ordered that Bragg “shall” participate in and complete a sex offender treatment program, but required an evaluation so the provider could select the appropriate course of treatment based on his needs identified after completing it.’…The district court did not order that Bragg ‘shall’ complete sex-offender treatment. Rather, the district court ordered that Bragg complete an ‘evaluation,’ but separately required completion of sex-offender treatment only ‘[i]f deemed necessary’ by a treatment provider.”
In a footnote, Tung responded to the majority’s description of the condition as containing an “off ramp,” saying:
“In reality, the district court did not order treatment, but allowed an on ramp for a provider to impose punishment without future proceedings. That is not allowed.”
Saying that, “however technical my disagreement with the panel majority may be,” the jurist reasoned:
“I think it is important to recognize and respect the line between proper and improper delegations, as not only is the liberty of a person at stake, the scope of our judicial authority is too.”
There was no disagreement between the jurists over the other two challenged terms concerning loitering prohibitions and location monitoring, which all agreed passed constitutional muster.
The case is U.S. v. Bragg, 24-5265.
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