Court filing

Response to Motion (defendant's response to motion to modify occupational conditions of probation)

Record facts

Court	U.S. District Court for the District of Wyoming
Filed	2026-09-11

U.S. District Court for the District of Wyoming · No. 1:22-cr-00023 · Doc. 77 · 2026-09-11 · Docket on CourtListener

Full text

Case 1:22-cr-00023-SWS Document 77 Filed 09/11/26 Page 1 of 25

P. Craig Silva, Wyoming Bar No. 6-3066
Asst. Federal Public Defender
104 South Wolcott Street, Suite 550
Casper, Wyoming 82601
Phone: 307-772-2781
Facsimile: 307-772-2788
Email: craig_silva@fd.org

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF WYOMING

UNITED STATES OF AMERICA,

Plaintiff,

v. Case No. 22-CR-23-SWS

PAUL D. MCCOWN,

Defendant.

DEFENDANT’S RESPONSE TO GOVERNMENT’S MOTION
TO MODIFY THE SPECIFIC OCCUPATIONAL 1 CONDITIONS
OF PROBATION OF THE DEFENDANT

COMES NOW Defendant, Paul D. McCown (hereinafter “Mr. McCown” or

“Defendant”) by and through counsel and submits his Defendant’s Response to

Government’s Motion to Modify the Specific Occupational Conditions of Probation of

the Defendant. The grounds to deny the modification are as follows:

I. Procedural History and Current Posture

1 For extensive coverage and annotations of this issue the Court should consider Thomas W. Hutchison

et al., Federal Sentencing Law and Practice § 5F1.5 Occupational Restraints (2025 Ed. and Supp.
2026).
Case 1:22-cr-00023-SWS Document 77 Filed 09/11/26 Page 2 of 25

On July 8, 2022, Defendant was sentenced by this Court to 63 months in

prison. He was released to probation on March 21, 2025, after serving home

confinement starting in September 2024. Exhibit A, Declaration of Defendant. It

is undisputed that he has had no violations of probation during that time and has

paid restitution despite marginal employment due to his prior convictions. Recently,

he has been working part-time as a coffee barista. Id. They recently wanted to move

him back into management where he had been previously, but human resources’

overconcerns with his criminal record terminated him. Id. They did this even though

he had worked for them previously in management with the exact same criminal

record. Id.

At the time of his sentencing the Court orally ruled and then later amended

the judgment to include a specific term of his probation that:

The defendant shall not work as a business manager or
bookkeeper or hold any position of employment in which he
has sole access to bank accounts, payroll systems, financial
records, or the personal identifiers of any individuals;
however, he may perform these positions and/or duties if
supervised by a business partner. He shall not be a
signatory on any business account without a co-signatory
and shall not be in a position to deposit or distribute funds
with respect to any business account without supervision
by a business partner or co-signatory. He shall allow the
U.S. Probation Officer access to any and all business
records and permit the U.S. Probation Officer to review any
business accounts upon which the defendant is a signatory.

ECF No. 44, Amended Judgment. (Emphasis added).

2
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The Government is now moving to modify the Defendant’s probation to include

a provision that reads as follows:

The defendant shall notify any prospective employer,
business partner, client, contractor, fiduciary, or other
third party with whom the defendant seeks to engage in
employment, self-employment, volunteer work, or any
position involving financial responsibilities, access to
funds, financial records, personal identifying information,
or positions of trust, of the nature and circumstances of the
defendant’s underlying offense(s) and requirements of his
supervised release prior to commencing such activity. The
defendant shall provide proof of such notification to the
probation officer upon request and shall permit the
probation officer to verify that the required disclosure has
been made. The defendant shall not commence such
employment or activity until the required notification has
occurred and the probation officer has been informed of the
notification.

The defendant shall not have direct or indirect access to,
control over, or authority regarding any business or
organizational bank account, credit card, payroll system,
financial management system, accounting records,
financial records, or personal identifying information of
any individual. The defendant shall not serve as a
signatory, authorized user, custodian, or person with
authority to initiate, approve, transfer, withdraw, deposit,
distribute, disburse, spend, or otherwise controls funds on
behalf of any business, organization, or third party. The
defendant shall not occupy any position that permits
unsupervised access to customer, employee, client, or
vendor financial information or personal identifiers,
including Social Security numbers, dates of birth, account
numbers, or other sensitive identifying data. He shall allow
the U.S. Probation Officer access to any and all business
records and permit the U.S. Probation Officer to review any
business information to which the defendant has access.

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Defendant’s probation will end in approximately March 20, 2028, which is one

year and six months away.

II. Substantive Facts

Defendant was released in September 2024 to home confinement. Supra,

Exhibit A. He obtained a job with a law firm Bridgewater Law Group, 15505 Cornet

St., Santa Fe Springs, CA 90670. He has a good reference from an

employee/supervisor with that firm. Exhibit B, Reference. He left that position in

February of 2026, because the fuel prices for the use of his vehicle were giving him

zero net gain. Exhibit A, Declaration of Defendant.

He then went to work for Coffee Bean & Tea Leaf, where up to recently he was

employed. His supervisor has also given him a good reference. Exhibit C, Reference.

Defendant has sent out over 2,000 resumes, almost all of which have been

rejected. 2 Exhibit A, Declaration of Defendant. In this case, he contacted the COO’s

wife at BIORAY, Inc. through LinkedIn, and in those conversations, he indicated that

he was “justice impacted,” which means he had a criminal record. Id.

In California, job applicants with felony records are protected by strong "Ban

the Box" protections under the California Fair Chance Act. The law prevents

employers from automatically disqualifying candidates based on their criminal

2
He has not applied for any positions of Vice President of Finance, Chief Financial Officer, or Director
of Finance because of his criminal history, and with his specific supervision conditions he would not
qualify, but could not hold the position.
4
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history. Instead, it delays when and how an employer can review a felony record. It

applies to employers with five or more employees. BIORAY, Inc. has 25 employees.

An employer cannot run a background check or ask criminal history questions until

the employer makes a conditional job offer. Once a conditional job offer is made the

employer may request written permission to run a background check. An employer

cannot immediately revoke a job offer just because a background check reveals a

felony conviction. Before rescinding the offer, they must make a formal individualized

assessment and determine whether the felony has a direct and adverse relationship

on specific job duties. The employer must weigh the nature and gravity of the offense

conduct, the amount of time that has passed, and the nature of the job being sought.

https://www.r23law.com/articles/fair-chance-act. Defendant thought he cleared this

hurdle when he was offered the job.

Defendant has brought a lawsuit against BIORAY, Inc. for violation of the

California Fair Chance Act. Exhibit D, Complaint. The Complaint pleads and

alleges as follow:

• On or about December 12th, 2025, defendant extended to
Mr. McCown an offer of employment for the position of
Chief of Staff at an annual salary of $120,000 a year plus
25% bonus potential. Prior to any formal contact with the
defendant. Mr. McCown disclosed his justice impacted
status to Emma King, spouse of Neil King, the company's
Chief Operating Officer, who posted the job on LinkedIn.
Defendants subsequently interviewed, vetted, and hired
Mr. McCown for the Chief of Staff position with actual or
constructive notice of his criminal history. ¶ 7.
5
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• The Chief of Staff job description contained no mention of
financial responsibilities, money handling duties, access to
payroll systems, access to banking or financial accounts, or
any financial decision-making authority. ¶ 8.

• Defendant conducted an initial background check on Mr.
McCown prior to his starting date. The background check
cleared Mr. McCown for employment. Mr. McCown began
working. ¶ 10.

• Mr. McCown began employment with the Defendant on
January 5th, 2026. During his tenure, Mr. McCown
performed his duties professionally, met or exceeded
expectations, and gave Defendants no independent reason
to question his judgment, professionalism or
trustworthiness. ¶ 11.

• In mid-January 2026, approximately two to three weeks
after Mr. McCown began employment, defendant
requested a second background check on Mr. McCown. ¶
12.

• On January 30th, 2026, Defendant issued Mr. McCown a
Pre Adverse Action Notice stating it had made a
preliminary decision to revoke Mr. McCown's job offer
based on his criminal history background check. The letter
asserted that the “Chief of Staff” position at the Company
is a position where the person works functionally with
many departments and is exposed to confidential company
information and data, including financial and personal
information.

Id. Under the California Fair Chance Act, Mr. McCown was allowed to object. He

provided a detailed response to every one of the allegations. His position was that as

the Chief of Staff he did not have access to financial, banking, payment or accounting

systems, he did not have signatory or approval authority over company funds, he had
6
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no ability to initiate, approved transfer or direct the movement of money and only

limited access to financial information for analytical and advisory purposes. Id. ¶ at

15. 3

He explained that he had discussed this issue with his probation officer. And

he confirmed the role did not violate any conditions of his supervision. Id. ¶ at 15 (c).

On February 13th, 2026, defendant terminated Mr. McCown’s employment. Id. ¶ at

19.

The Complaint alleges that BIORAY, Inc.’s termination decision rests on a

fundamental misreading of the judgment. The supervised release condition does not

prohibit Mr. McCown from having any access to financial or personal information—

it prohibits sole access without oversight, and expressly permits such duties when

supervised by a business partner. Yet BIORAY, Inc.’s adverse action letter

characterized the restriction as barring Mr. McCown from access to payroll data,

bank account information, and sensitive employee data altogether, a sweeping

mischaracterization of which the Judgment directs. This appears to stem from the

company's call with probation officer Emmanuel Lara, where BIORAY, Inc. described

the Chief of Staff role as a senior role with no supervision, effectively shaping his

3 The Government makes much of the fact that Mr. McCown has a company American Express credit

card. Companies supervise their employees’ credit card purchases. Counsel for Mr. McCown has had
several cards with different private and government agencies and those monthly charges are routinely
reviewed. Nevertheless, Mr. McCown before accepting the card obtained approval from his probation
officer. Exhibit E, Text Messages.
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response in a way that does not reflect the Judgment's actual requirements or how

the role could have been structured. Had BIORAY, Inc., reviewed the Judgment itself,

the individualized assessment should have focused on whether the role could be

structured with appropriate supervision or co-access, not on whether access existed

at all. There's no evidence that the company has ever considered that alternative. In

its termination letter, the civil defendants stated that a company representative had

contacted Mr. McCown's probation officer, who allegedly advised that Mr. McCown's

supervised release terms prohibit him from accessing payroll data, company or

employed bank account information, or sensitive personal data of employees,

including personal identifying information and financial information.

To date, BIORAY, Inc. has been unable to provide any documentation or

recording of that call with probation. 4

Mr. McCown recognizes that his submissions to BIORAY, Inc. were

mischaracterizations. Exhibit A, Declaration of Defendant

II. Argument

A. Introduction:

Defendant is 38 years old. He has 5 children. He remains married to his wife,

who is a collateral victim in this situation. For much of the couple’s marriage

4 As an important aside, Mr. McCown believes that his civil suit against BIORAY, Inc. will settle soon. He considers
the proceeds’ lost wages wherein 10% of that would go to restitution, and his family could use these remaining monies
since he has not had meaningful employment while on probation. His probation officer suggests bringing this issue to
court at the upcoming hearing.
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Defendant had been the sole supporter of his wife and family. The Defendant is

qualified with a prestigious education which now is horribly diminished by this

situation. His wife is currently working, and their expenses far outpace their

income; rent for a three-bedroom home in California is costing $4,000 per month.

It is well recognized that the Fourteenth Amendment due process clause

recognizes an individual’s right to work. Van Zandt v. McKee, 202 F.2d 490 (5th Cir.

1953)(holding although the right to life, liberty, and the pursuit of happiness includes

the right to work and earn an honest living, it does not include the right to work for

any particular employer without his consent since a man's right to work stops short

of the employer's right not to hire him). That right is not an inalienable right since

aliens who enter the United States on nonimmigrant visas and aliens who enter

illegally have no constitutional right to work. Such an individual is legally unable

to work. Duenas-Rodriguez v. Ind. Comm., 606 P.2d 437 (Colo. 1980). Not only is

due process implicated with these restrictions, but these restrictions also infringe on

Mr. McCown’s First Amendment rights. United States v. Turner, 44 F.3d 900, 903-

904 (10th Cir. 1995). Conditions of probation that restrict a defendant’s First

Amendment rights to free association and speech must bear a reasonable relationship

to the goals of probation. United States v. Templar, 453 F.2d 330, 334 (10th Cir. 1971)

(within discretion of the trial court to restrict probationer’s association with groups

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that would palpably encourage him to repeat his criminal conduct). 5

B. Standard of Review:

District courts have broad discretion to prescribe special conditions of

release. See, e.g., United States v. Hanrahan, 508 F.3d 962, 970-971 (10th Cir. 2007).

However, this discretion is not without limits. For instance, the conditions imposed

“must satisfy the three statutory requirements laid out in 18 U.S.C. § 3583(d). First,

they must be reasonably related to at least one of following: the nature and

circumstances of the offense, the defendant's history and characteristics, the

deterrence of criminal conduct, the protection of the public from further crimes of the

defendant, and the defendant's educational, vocational, medical, or other correctional

needs. Id. at 970; 18 U.S.C. § 3583(d)(1). Second, they must involve no greater

deprivation of liberty than is reasonably necessary to achieve the purpose of deterring

criminal activity, protecting the public, and promoting the defendant's

rehabilitation. 18 U.S.C. § 3583(d)(2). Third, they must be consistent with any

pertinent policy statements issued by the Sentencing Commission. 18 U.S.C.§

5
Prohibitions against the First Amendment intrude on a particularly significant liberty interest.
United States v. Englehart, 22 F.4th 1197, 1208 (10th Cir. 2022); United States v. Koch, 978 F.3d 719,
726 (10th Cir. 2020). So the district court had to: (1) show that the condition was reasonably related
to the goals of deterring criminality, protecting against further crimes, or promoting the defendant's
needs (educational, vocational, medical, or correctional); (2) support imposition of the condition with
evidence that the condition was needed to advance those goals; (3) limit the deprivation of liberty to
what was reasonably necessary; (4) balance the purpose against the significant First Amendment
concerns. 18 U.S.C. § 3583(d); See United States v. Wolf Child, 699 F.3d 1082, 1090 (9th Cir.
2012) (need to show a necessity and limit the deprivation); Englehart, 22 F.4th at 1207-08 (need to
balance First Amendment concerns).

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3583(d)(3).

C. Notification Specific Condition:

The Government’s proposed modification—specifically the requirement that

Defendant affirmatively disclose his criminal history to every potential employer,

business partner, client, or contractor—not only fails the three-part statutory test

under 18 U.S.C. § 3583(d), but it thwarts California’s Fair Chance Act.

1. The condition is not reasonably related to the purposes of sentencing.

Under § 3583(d)(1), a special condition must be reasonably related to the

nature and circumstances of the offense, the defendant’s history, and the protection

of the public. The current, already-restrictive conditions of Mr. McCown’s probation

are sufficient to protect the public, especially when coupled with California’s Fair

Chance Act. The Court has already imposed strict prohibitions on the Defendant

handling money, acting as a signatory, or managing sensitive financial systems.

These existing safeguards directly address the nature of his underlying offense.

Because the Defendant is effectively barred from positions of financial authority

without supervision, the proposed notification requirement serves no additional

protective purpose. Furthermore, given that 92 percent of employers now conduct

criminal background checks, the market already possesses a built-in mechanism for

"vetting" the Defendant; that is especially true considering California’s First Chance

Act. https://www.ilr.cornell.edu/carow/carow-policy/short-history-criminal-

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background-searches-employment. Forcing the Defendant to proactively disclose his

history in every minor professional interaction or volunteer engagement creates a

barrier to re-entry that does not correlate to public safety but rather functions as an

unnecessary "scarlet letter" 6 that severely hinders his ability to find gainful

employment and support his five children. It is a rehabilitative block when state law

sufficiently addresses the issue.

2. The condition involves a greater deprivation of liberty than is
reasonably necessary.

Under § 3583(d)(2), the condition must be no greater than necessary to achieve

the goals of rehabilitation and deterrence. The Government’s proposed language is

overly broad and practically prohibitive. By requiring the Defendant to notify any

"prospective employer, business partner, client, [or] contractor" of the nature and

circumstances of his offense before commencing any activity, the Government is

effectively blacklisting the Defendant from the workforce. As evidenced by the

termination from his previous employer, BIORAY, Inc., the Defendant is already

subject to the realities of background checks under state law. Requiring him to

disclose his history at the outset of every professional interaction essentially forces

him to preemptively disqualify himself from roles where his actual job duties—which

6 The term “scarlet letter” derives from Nathaniel Hawthorne's 1850 novel The Scarlet Letter, in
which Hester Prynne is required to wear a scarlet “A” on her clothing as a public marker for her
adultery. A scarlet letter thus came to describe a conspicuous mark of shame, disgrace, or social
condemnation imposed upon an individual for perceived wrongdoing.
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are already heavily restricted by this Court—would not even require financial access.

Keep in mind the provision applies to all employers and places he might even

volunteer; consequently, if he applied to the Natrona County School District as a bus

driver, or as a volunteer coach for Little League, he would have to disclose. This is

the case even though both of those entities perform background checks. Not that it

matters, but Mr. McCown did disclose the nature of the offense to his son’s head

coach. This constitutes a severe deprivation of his liberty interest in pursuing a

lawful occupational right recognized by the Supreme Court—without providing any

countervailing benefit to the public, especially where California has made a policy

decision on how to handle these situations so that otherwise qualified candidates are

not excluded from the workforce for jobs for which they are qualified.

3. The condition is not consistent with pertinent policy statements and
constitutional protections.

Under § 3583(d)(3), conditions must be consistent with pertinent policy

statements and, by extension, constitutional standards. Courts have expressed

significant concern regarding the vagueness and overbreadth of notification

requirements in similar financial crime cases. As highlighted in United States v.

Bickart, 825 F.3d 832 (7th Cir. 2016), mandatory disclosure provisions can be found

unconstitutionally vague if they lack clear boundaries regarding what constitutes a

"position of trust" or what triggers the notification requirement. In Bickart, defendant

was convicted of tax fraud for submitting falsified tax returns and sentenced to 24
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months in prison. Id. The court held that, “a supervised release condition requiring

defendant to notify third parties of her record was unconstitutionally vague.” Id. The

point is further illustrated by United States v. Souser, 405 F.3d 1162, 1167 (10th Cir.

2005). In Souser, defendant pled guilty to making false statements to the United

States Government and was sentenced to five years of probation. The 10th Circuit

held that the condition to notify employer of her criminal history was erroneously

imposed without compliance with the sentencing guidelines provision governing

occupational restrictions. Id.

The Government’s proposed language is sweeping, potentially capturing every

professional encounter, including those that do not involve financial risk. By imposing

such an ambiguous and wide-reaching mandate, the Government risks creating a

condition that is impossible for the Defendant to comply with consistently, thereby

setting him up for technical violations rather than fostering the rehabilitation and

stability he has demonstrated over the past year.

Defendant has demonstrated compliance with his current probation terms, has

paid on his restitution, despite financial difficulties, and has had zero violations. The

Court’s existing restriction regarding his lack of access to financial accounts already

provides the necessary protection for the public. The proposed notification condition

is an unnecessary, overbroad, and potentially unconstitutional restraint on the

Defendant’s ability to earn a livelihood and provide for his family. For these reasons,

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the request to modify the judgment should be denied. Cf. United States v. Hull, 893

F.3d 1221 (10th Cir. 2018) (defendant was convicted of committing bank robbery and

appealed his condition of supervised release requiring him to notify third parties of

risks he might pose to them. This provision, limited to employers that probation

considered at risk, was held to be not vague and not an improper delegation of the

judicial function).

D. Prohibition of Employment Specific Provision:

The Government’s proposed modification—particularly its prohibition against

Defendant’s having any direct or indirect access to business accounts, financial

systems, accounting records, financial information, or personal identifying

information—fails the three-part statutory test under 18 U.S.C. § 3583(d). See e.g.

United States, v. Hamilton, 986 F.3d 413 (4th Cir. 2021)(defendant was convicted of

child pornography and was sentenced to a lifetime of supervised provision. The court

held that special conditions of supervised release barring defendant from working in

any type of employment without prior approval of his probation officer was overbroad

and lacked sufficient nexus to the nature and circumstances of the offense of

conviction).

A court may prohibit a defendant from engaging in a specified occupation,

business, or profession, or may limit the terms under which the defendant may do so,

only if it finds that: (1) a reasonably direct relationship existed between the

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defendant’s occupation, business, or profession and the conduct relevant to the

offense of conviction; and (2) the restriction is reasonably necessary to protect the

public because there is reason to believe that, absent the restriction, the defendant

will continue to engage in unlawful conduct similar to the conduct for which he was

convicted. United States v. Mike, 632 F.3d 686, 698-99 (10th Cir. 2011); U.S.S.G. §

5F1.5(a)(1)-(2).

In addition, any occupational restriction must be the minimum restriction

necessary to protect the public and serve the purposes of supervised release, which

means under the applicable Guideline that the condition must be for the minimum

time and the minimum extent necessary to protect the public. United States v.

Souser, 405 F.3d 1162, 1167 (10th Cir. 2005). The Senate Judiciary Committee Report

on the Comprehensive Crime Control Act explains that the provision was "intended

to be used to preclude the continuation or repetition of illegal activities while avoiding

a bar from employment that exceeds that needed to achieve that result." S. Rep. No.

225, 98th Cong., 1st Sess. 96-97. The condition "should only be used as reasonably

necessary to protect the public. It should not be used as a means of punishing the

convicted person." Id. at 96. Section 5F1.5 accordingly limits the use of the condition

and, if imposed, limits its scope to the minimum reasonably necessary to protect the

public. The Government’s proposed language does not satisfy these requirements.

1. The proposed prohibition is not reasonably related to the specific
conduct relevant to the offense.
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Section 3583(d)(1) requires a special condition to be reasonably related to the

nature and circumstances of the offense, the Defendant’s history and characteristics,

the purposes of deterrence and public protection, and his correctional needs. The

relevant inquiry is not whether Defendant has ever worked in a business or held an

occupation that involved some incidental contact with financial information. Rather,

the Court must determine whether the occupation or duties sought to be prohibited

bear a reasonably direct relationship to the conduct underlying the conviction. The

Government’s proposed condition is materially broader than that standard. It would

prohibit Defendant from having any direct or indirect access to, control over, or

authority regarding virtually any business financial account, credit card, payroll

system, accounting record, financial-management system, financial record, or

personal identifying information. It would also prohibit him from serving in any

capacity that permits him to initiate, approve, transfer, withdraw, deposit, distribute,

disburse, or otherwise control funds on behalf of any business, organization, or third

party. That language is not limited to the specific occupational duties that created

the risk addressed at sentencing. It instead reaches any position involving financial

responsibilities or information, including positions in which Defendant could perform

legitimate and lawful work without possessing unsupervised authority over money

or confidential records. The condition therefore regulates an entire category of

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employment rather than addressing the particular risk presented by the offense. It

basically delegates him to the trades, laborer, plumber, electrician, and or carpenter.

It is unnecessary overreaching especially where the Court has already made

the necessary connection between Defendant’s offense and the relevant employment

restrictions. The Amended Judgment prohibits Defendant from working as a business

manager or bookkeeper, or from holding a position in which he has sole access to bank

accounts, payroll systems, financial records, or personal identifiers. It further

prohibits him from acting as a signatory without a co-signatory and from depositing

or distributing funds without supervision by a business partner or co-signatory.

Those restrictions are directly tied to the risks associated with the offense. The

Government’s proposed absolute prohibition adds little, if anything, to those

protections. It would extend the restriction from unsupervised financial authority to

employment that merely involves some connection to financial matters, even where

Defendant’s access is limited, monitored, or incidental. Such an expansion is not

reasonably related to the conduct relevant to the conviction. The Government’s

prohibition would prohibit Defendant from working as a manager at McDonald’s or

Chick-fil-A because he would have to make bank deposits. He could not even work as

an employee in those places because he would be responsible for the till handling cash

and credit cards.

2. The Government has not shown that absolute prohibition is reasonably
necessary to protect the public.
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Under § 3583(d)(1) and U.S.S.G. § 5F1.5(a)(2), an occupational restriction must

be reasonably necessary to protect the public because there is reason to believe that,

absent the restriction, the Defendant will continue to engage in similar unlawful

conduct. The Government must therefore establish more than the theoretical

possibility that the Defendant could misuse access to financial information or funds.

It must demonstrate that broader restrictions are necessary because the existing

limitations would not adequately protect the public. The record does not support that

conclusion. Defendant has been on probation without a violation, has complied with

the conditions imposed by the Court, and has paid restitution despite experiencing

marginal employment opportunities. Those facts demonstrate that Defendant has

used supervision as intended and has not shown a pattern of violating the Court’s

restrictions.

More importantly, the existing condition already prevents the precise conduct

that presents a public-safety concern. Defendant cannot independently manage

business funds, act as a sole signatory, control payroll systems, or possess sole access

to sensitive financial records or personal identifiers. He may perform otherwise

lawful duties only when supervised by a business partner or co-signatory, and he

must permit the probation office to review relevant business records and accounts.

The current condition thus protects the public through direct controls:

supervision, dual authorization, restricted access, and probation office oversight. The
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Government has not identified any actual violation, attempted circumvention, or

specific employment circumstance demonstrating that those safeguards have failed.

Nor has it shown why Defendant’s supervised participation in a business or financial-

related position would create a risk that cannot be addressed through the restrictions

already imposed.

An absolute prohibition is particularly unwarranted where a less-restrictive

condition is available and has already been selected by the Court. The fact that

Defendant’s prior employment was affected by a background check and possibly the

representations made in his application process does not establish that he should be

categorically barred from any employment involving financial duties. The

Government’s objection focuses on Defendant’s misrepresentations in the application

process. Considering that fact a more appropriate special condition would require

probation to review submissions made by the Defendant in applications of

employment as opposed to the broader complete employment ban. The Court’s

existing conditions are narrowly tailored to determine what responsibilities he may

lawfully undertake with supervision.

3. The existing restriction is the minimum restriction necessary.

Section 3583(d)(2) requires that a condition involve no greater deprivation of

liberty than is reasonably necessary to achieve the goals of deterrence, public

protection, and rehabilitation. Similarly, Souser requires an occupational restriction

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to be the minimum restriction necessary. The condition in the Amended Judgment

satisfies that requirement because it is tailored to the risk. It does not give Defendant

unrestricted access to financial systems or personal information. It does not permit

him to act alone as a signatory or to control business funds without oversight. Instead,

it allows him to work under supervision, with a business partner or co-signatory,

while preserving the probation office’s authority to review business records and

accounts. That approach is both protective and rehabilitative. It permits Defendant

to use his education and employment skills, support his wife and five children, pay

restitution, and establish lawful financial stability, while preventing him from

exercising the precise unsupervised authority that could create a risk of recidivism.

Supervised employment also allows Defendant to demonstrate responsibility and

compliance rather than making lawful employment practically impossible during the

remaining period of probation.

By contrast, the Government’s proposed provision would prohibit not only

unsupervised control of funds, but also any direct or indirect access to financial

systems, records, accounts, or identifying information. It would prevent Defendant

from accepting positions that could be safely performed with limited access,

segregation of duties, dual authorization, or supervision. The proposed condition

therefore imposes the maximum restriction rather than the minimum one. The

Court’s original restriction is more appropriate because it balances the competing

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interests. It protects the public without categorically excluding Defendant from the

workforce. It recognizes that the risk can be managed through supervision and

accountability, rather than assuming that any employment involving financial

matters is inherently unsafe. The Court—not the Government’s proposed blanket

condition—has already determined the appropriate limits of Defendant’s

employment, and the record provides no basis to conclude that those limits are

inadequate.

Finally, the proposed prohibition would substantially undermine Defendant’s

rehabilitation and correctional needs. Gainful employment is central to successful

reentry, family support, restitution, and compliance with supervised release. A

condition that prevents Defendant from pursuing lawful work in fields for which he

is educated and qualified, even where the work can be performed under supervision,

creates a deprivation greater than necessary and risks making successful

rehabilitation more difficult.

The Government’s restriction is too closely akin to the restriction in United

States v. Wittig, 528 F.3d 1280 (10th Cir. 2008), where the defendant had been

convicted of conspiracy to commit bank fraud, and money laundering. The district

court imposed a condition of supervised release that barred the defendant from being

employed as an executive and engaging in any financial agreements or negotiations

in a professional capacity without first obtaining court approval. Wittig, 528 F.3d at

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Case 1:22-cr-00023-SWS Document 77 Filed 09/11/26 Page 23 of 25

1286. Defendant challenged the condition, and the court of appeals overturned it. The

10th Circuit Court of Appeals found the sentencing court’s justification to be

“conclusory” and inadequate. Wittig, 528 F.3d at 1288. With regard to the guideline

application the appellate court stated that the sentencing court “did not explain how

the restriction was connected to defendant’s abuse of a management position for a

criminal purpose. The offense of conviction was based upon defendant’s personal

conduct and not his conduct as an executive. . .the mere fact defendant engaged in

such conduct while employed as an executive does not establish the necessary

connection between the conduct and his management/executive position.” Whittig,

528 F.3d at 1288; See e.g. United States v. Erwin, 299 F.3d 1230, 1231 (10th Cir.

2002)(“Before such a prohibition is imposed, the district court is required to

determine that without the prohibition the defendant will continue to engage in

criminal conduct similar to that for which he was convicted”); See also United States

v. Rodenbaugh, 795 F.3d 1281 (10th Cir. 2015)(Defendant was prevented from being

a guide based on Lacey Act violations and the court held that the district court’s

failure to make specific findings to support occupational restriction imposed required

remand).

IV. Conclusion

The Government’s two requirements make the Defendant unemployable

except for the trades. They keep him from work for which he is qualified and

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Case 1:22-cr-00023-SWS Document 77 Filed 09/11/26 Page 24 of 25

completely undermines his rehabilitation. This is not a case whereby Mr. McCown

stole anything from BIORAY, Inc. There is no impropriety alleged at BIORAY, Inc.

The Government has not demonstrated that its proposed notification and

occupational restrictions satisfy 18 U.S.C. § 3583(d), U.S.S.G. § 5F1.5, or the

governing Tenth Circuit precedent. The proposed conditions are not narrowly tied to

the conduct underlying Defendant’s conviction, are not supported by specific findings

showing that existing safeguards are inadequate and impose substantially greater

restraints on Defendant’s liberty than necessary to protect the public or promote

rehabilitation. As in Wittig, Erwin, and Rodenbaugh, a broad occupational

prohibition cannot rest on conclusory assertions or the mere fact that the offense

occurred in an employment-related setting; the Court must identify a reasonably

direct relationship between the prohibited work and the criminal conduct and explain

why the restriction is necessary. Here, Defendant has complied with supervision,

committed no violations, made restitution payments despite limited employment

opportunities, and remains subject to meaningful restrictions on unsupervised access

to funds, financial systems, and sensitive information. Those existing conditions

adequately address the identified risks while allowing Defendant to work lawfully,

support his wife and five children, pay restitution, and continue his rehabilitation.

The Government’s proposed modifications would instead function as an unnecessarily

broad employment ban and an ongoing public disclosure requirement. Accordingly,

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the Court should deny the proposed modifications and retain the employment and

supervision conditions contained in the Amended Judgment.

DATED this 11th day of September.
Respectfully submitted,

TRACY R. HUCKE
Federal Public Defender

/s/ P. Craig Silva
P. Craig Silva
Assistant Federal Public Defender

CERTIFICATE OF SERVICE

I hereby certify that on September 11, 2026 the foregoing was electronically
filed and consequently served on counsel of record.

/s/ P. Craig Silva
P. Craig Silva

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