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United States v. Maxson

United States District Court, D. Maryland

December 7, 2017



          James K. Bredar Chief Judge

         Allen Jeffrey Maxson (“Defendant”) pleaded guilty to a one count information charging him with abusive sexual contact in violation of 18 U.S.C. § 2244(a)(5). The Court imposed a sentence of 172 months' imprisonment to be followed by supervised release for a term of life. The Court also imposed certain special conditions of supervised release, including that Defendant “shall participate in a sex offender treatment program” and “shall follow the rules and regulations of the sex offender treatment program as directed by the probation office.” (ECF No. 54, Judgment In A Criminal Case, at 4.) The Court, with the parties' consent, retained jurisdiction over the case in order to resolve an outstanding issue regarding the propriety of a special condition of supervised release requested by the Government. That issue, along with another subsequently raised jointly by the parties, has been briefed (ECF Nos. 58, 60, 62, 63, 66 & 67), and no hearing is required, Local Rule 105.6 (D. Md. 2016). For the reasons explained below, the Court declines to impose restrictions on Defendant's possession or use of adult pornography as a condition of supervised release. The Court also amends the restriction previously imposed on Defendant's use of the Internet.

         I. Legal Standard

         District courts have “broad latitude” to impose appropriate conditions of supervised release. United States v. Armel, 585 F.3d 182, 186 (4th Cir. 2009). However, any condition must satisfy two fundamental prerequisites. First, the condition must be “‘reasonably related' to the factors referred to in 18 U.S.C. § 3583(d)(1), which include ‘the nature and circumstances of the offense and the history and characteristics of the defendant, ' id. § 3553(a)(1); ‘protect[ing] the public from further crimes, ' id. § 3553(a)(2)(C); and ‘provid[ing] the defendant with needed . . . medical care[ ] or other correctional treatment, ' id. § 3553(a)(2)(D).” Armel, 585 F.3d at 186 (alterations in original). Second, the condition must “‘involve[ ] no greater deprivation of liberty than is reasonably necessary' to achieve the goals enumerated in § 3553(a).” Id. (quoting 18 U.S.C. § 3583(d)(2)) (alteration in original). Additionally, the sentencing court must provide “the rationale for the special conditions it imposes.” Id.; see, e.g., United States v. Shannon, 743 F.3d 496, 502 (7th Cir. 2014) (“Adequate findings are especially important when the subject matter of the ban is a lifetime ban on otherwise-legal material.”); United States v. Warren, 186 F.3d 358, 366 (3d Cir. 1999) (“[C]ourts of appeals have consistently required district courts to set forth factual findings to justify special . . . conditions.”).

         II. Analysis

         A. Adult Pornography Restriction

         At sentencing, the Government requested that the Court impose the following condition of supervised release:

The defendant shall not own, use, possess, view or read any materials, including pictures, photographs, books, writings, drawings, videos, or video games, depicting and/or describing sexually explicit conduct, or frequent any place that is involved with pornography, as defined in 18 U.S.C. § 2256(2).

         (ECF No. 39, Presentence Investigation Report at 23.) The Court declined to impose the condition at the time because the Government had not presented sufficient evidence of a relationship between the viewing of adult pornography and an increased risk of a person then viewing child pornography or otherwise acting on an impulse to engage in inappropriate sexual activity with children. The Court emphasized that it would not impose the condition sought by the Government “absent proof . . . of its efficacy, that it's legitimate, that it helps to achieve what we are absolutely trying to accomplish here, which is to prevent this defendant from re-engaging in horrible sexual misconduct directed at children.” (ECF No. 62, Ex. 3, Sentencing Hr'g Tr. at 74; see also Id. at 78 (“The government, if you want this condition, you've got to have experts that back it.”).) The Court then ordered the parties to file a Joint Status Report disclosing the identities and qualifications of expert witnesses to testify at a hearing to be conducted to address the necessity of the requested condition.

         Despite the additional time afforded by the Court, the Government has not presented sufficient evidence to support its request that Defendant be prohibited from possessing all forms of pornography. The Government's proposed condition rests on the assumption that access to adult pornography increases the likelihood that an individual convicted of sex abuse of minor will reoffend. But the Government has been unable to find a single expert willing to support this position in Court. Nor has the Government offered any studies or articles that support a connection between the viewing of adult pornography and an increased risk of inappropriate sexual activity with children.[1] The Government concedes as much itself, stating that “upon reviewing the available literature, [it] has seen no scientific or historical studies or academic papers-on either side of this issue-which establish or refute a direct causal link - or even correlation-between exposure to adult pornography and subsequent contact offenses against children.” (ECF No. 63 at 2.) In short, the Government's requested special condition rests on nothing more than an unsupported assumption, which is insufficient to justify a lifelong supervised release condition that prohibits the Defendant from engaging in otherwise lawful conduct. Accordingly, the Court declines to impose as a condition of supervised release a prohibition on Defendant possessing and/or viewing adult pornography.

         The Court's conclusion is consistent with that reached by other courts (and cited by Defendant) that have rejected similar conditions of supervised release based on inadequate factual support. See, e.g., United States v. Martinez-Torres, 795 F.3d 1233, 1237 (10th Cir. 2015) (“The district court's sole expressed reason for the condition [banning adult pornography] was that Defendant had been convicted of a sex offense-intentionally causing the penetration of the sexual organ of a child younger than 14 years of age. But that is not enough.”); United States v. Taylor, 796 F.3d 788, 793 (7th Cir. 2015) (“It is true that both Taylor's crime and adult pornography have to do with sexual activity. But there is no evidence that viewing or listening to adult pornography in any way led Taylor to commit the crime here [transferring obscene material to a person under the age of sixteen], or has led him to commit any other crime, nor is there any evidence in the record that viewing or listening to adult pornography would make the repeat of Taylor's crime or similar crimes any more likely.”); United States v. Voelker, 489 F.3d 139, 151(3d Cir. 2007) (“[N]othing on this record suggests that sexually explicit material involving only adults contributed in any way to Voelker's offense [receipt and possession of child pornography], nor is there any reason to believe that viewing such material would cause Voelker to reoffend.”). The Government, on the other hand, does not cite a single case where a court engaged with this issue and imposed a condition prohibiting the possession and viewing of adult pornography based solely on the sexual nature of the defendant's underlying conviction.

         Moreover, neither the U.S. Probation Office nor the Sentencing Commission specifically recommends a blanket ban on adult pornography as a special condition of supervised release for individuals convicted of sex offenses. See U.S.S.G. § 5D1.3(d)(7). Both, however, do recommend that courts impose a condition requiring that individuals convicted of sex offenses participate in a sex-offense treatment program. See id.; U.S. Courts, Overview of Probation and Supervised Release Conditions, Chapter 3: Restrictions on Viewing Sexually Explicit Materials. And the Probation Office further recommends that a prohibition on viewing and possessing adult pornography may be appropriate when it is “based on the specific risks in the individual case.” U.S. Courts, Overview of Probation and Supervised Release Conditions, Chapter 3: Restrictions on Viewing Sexually Explicit Materials. Importantly, the Probation Office states that, “[d]ue to the complex and individualized nature of sex offense-specific risk factors, probation officers should not recommend this condition until there has been an assessment of sexual deviance and risk by a sex offense-specific treatment provider.” Id. (emphasis added). The Court finds that the individualized analysis recommended by the Probation Office is consistent with and appropriately tailored to achieve the goals enumerated in § 3553(a). Accordingly, the Court finds that, to the extent a sex offense-specific treatment provider determines that Defendant's individual characteristics present specific risks associated with viewing adult pornography, Defendant may be prohibited from viewing adult pornography as part of an approved course of treatment, pursuant to Special Condition #10 imposed by the Court. (ECF No. 54 at 4.); see, e.g., United States v. Brigham, 569 F.3d 220, 233-34 (5th Cir. 2009) (affirming three-year ban on possession of “pornographic sexually oriented or sexually stimulating materials” where defendant's sex-offender treatment counselor testified that even sexually explicit images of adults would reinforce the defendant's previous behavior involving child pornography). The Probation Officer should, in consultation with a sex offense treatment provider, “assess the need for this condition on an ongoing basis and modify the condition if treatment progress and goals of supervision indicate a modification is appropriate.” U.S. Courts, Overview of Probation and Supervised Release Conditions, Chapter 3: Restrictions on Viewing Sexually Explicit Materials.

         B. Computer-Use Restriction

         The parties have jointly asked the Court to reconsider an additional supervised release condition already imposed by the Court. The condition at issue restricts Defendant from accessing any “computer systems, Internet-capable devices and/or similar electronic devices at any location . . . without the prior written approval of the U.S. Probation or Pretrial Services Officer.” (ECF No. 54 at 4.) Both parties ask that the Court reconsider the propriety of this condition in light of the Supreme Court's recent decision in Packingham v. North Carolina, 137 S.Ct. 1730 (2017), which struck down a North Carolina statute that prohibited convicted sex offenders-including those no longer on probation, parole, or supervised release-from accessing social media sites on the Internet.[2] Despite agreeing that Packingham warrants reconsideration of the special condition imposed by the Court, the ...

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