731 F.3d 258 (2nd Cir. 2013), 12-3514-cr, United States v. McLaurin

Docket Nº:12-3514-cr.
Citation:731 F.3d 258
Opinion Judge:CALABRESI and B.D. PARKER, Circuit Judges:
Party Name:UNITED STATES of America, Appellee, v. David C. McLAURIN, Appellant.
Attorney:William B. Darrow (Gregory L. Waples, on the brief), of counsel for Tristram J. Coffin, United States Attorney for the District of Vermont, for Appellee. Steven L. Barth (Michael L. Desautels, on the brief), Federal Public Defenders, Burlington, VT, for Appellant.
Judge Panel:Before: CALABRESI, CABRANES, and B.D. PARKER, Circuit Judges. JOS
Case Date:October 03, 2013
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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731 F.3d 258 (2nd Cir. 2013)

UNITED STATES of America, Appellee,


David C. McLAURIN, Appellant.

No. 12-3514-cr.

United States Court of Appeals, Second Circuit.

October 3, 2013

Argued: June 18, 2013.

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William B. Darrow (Gregory L. Waples, on the brief), of counsel for Tristram J. Coffin, United States Attorney for the District of Vermont, for Appellee.

Steven L. Barth (Michael L. Desautels, on the brief), Federal Public Defenders, Burlington, VT, for Appellant.

Before: CALABRESI, CABRANES, and B.D. PARKER, Circuit Judges.

CALABRESI and B.D. PARKER, Circuit Judges:

David McLaurin, a convicted sex offender, was required by federal law to register any change in his address. He failed to do so and, following his guilty plea, was sentenced in the United States District Court for the District of Vermont to fifteen months' imprisonment and five years of supervised release. As a condition of his release, McLaurin was required to " participate in an approved program of sex offender evaluation and treatment, which may include ... plethysmograph examinations, as directed by the probation officer." Judgment, United States v. McLaurin, No. 11 Cr. 113(WKS), Dkt. No. 28 (D.Vt. Aug. 22, 2012), J.App. 9.

This examination involves the use of a device know as a plethysmograph which is attached to the subject's penis. In some situations, the subject apparently may be required, prior to the start of the test, to masturbate so that the machine can be " properly" calibrated. The subject is then required to view pornographic images or videos while the device monitors blood flow to the penis and measures the extent of any erection that the subject has. The size of the erection is, we are told, of interest to government officials because it ostensibly correlates with the extent to which the subject continues to be aroused by the pornographic images.

McLaurin objected to this requirement as unnecessary, invasive, and unrelated to the sentencing factors specified in 18 U.S.C. § 3553(a) and therefore impermissible as a discretionary condition of supervised release. See 18 U.S.C. § 3583(d)(1). The district court nonetheless imposed the requirement without reference to the statutory goals of supervised release or to any expected benefits to the public or to McLaurin. McLaurin now appeals.

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We hold that this extraordinarily invasive condition is unjustified, is not reasonably related to the statutory goals of sentencing, and violates McLaurin's right to substantive due process. We therefore vacate the condition.


McLaurin, an Alabama resident, was accused in 2001 of taking photographs of his thirteen-year-old daughter with her breasts exposed. His daughter reported to authorities that she had requested the photo shoot to help in her modeling career. McLaurin pleaded guilty to one count of producing child pornography in violation of Alabama law and was sentenced to ten years' imprisonment, most of it suspended. In 2008, he pleaded guilty to two counts of failing to satisfy Alabama's sex offender registration requirements, both apparently for the same conduct of moving from one Alabama county to another and registering the move in neither.

The federal Sex Offender Registration and Notification Act (SORNA) required McLaurin to " register, and keep the registration current, in each jurisdiction" where he lived. See 42 U.S.C. § 16913. In 2011, McLaurin obtained employment at the Putney Inn in Vermont, and he notified Alabama authorities that he was moving to Vermont and informed them of his new address in Putney. Vermont authorities contacted McLaurin in Putney and instructed him to fill out paperwork for the Vermont sex offender registry, but he failed to do so. Later in 2011, he lost his job in Vermont and returned to Alabama. In September 2011, McLaurin was indicted in Vermont for violating SORNA, and, in October 2011, was arrested in Alabama and returned to Vermont.

In April 2012, McLaurin pleaded guilty to one count of violating SORNA. At his sentencing, the district court noted that, in its experience, the case was unique among sex offender registration cases because McLaurin had not attempted to hide his whereabouts but merely failed to complete the required paperwork. Although the district court found that McLaurin was " unlikely to reoffend again," it nevertheless sentenced him to fifteen months in prison and five years of supervised release. As one of the conditions of supervised release, the probation office recommended that McLaurin participate in a program of sex offender treatment, " which may include ... plethysmograph examinations, as directed by the probation officer." Presentence Report Disclosure, J.App. 25. Characterizing the condition as " standard," the district court imposed it over McLaurin's objection. Sentencing Tr. at 34, J.App. 22. The judge observed in a generalized way that plethysmographic testing requirements are " important conditions in regard to SORNA cases and sex offender registration" and " are relevant to diagnosis and evaluation in the future," but otherwise made no findings— and certainly no specific findings— about the efficacy of this condition, or about why it was called for by the statutory sentencing factors or by the Sentencing Guidelines.

Penile plethysmography is a procedure that lasts two to three hours and " involves placing a pressure-sensitive device around a man's penis, presenting him with an array of sexually stimulating images, and determining his level of sexual attraction by measuring minute changes in his erectile responses." United States v. Weber, 451 F.3d 552, 554, 563 (9th Cir.2006) (internal quotation marks omitted). The Government disputes whether, as others have described, the test requires a subject to masturbate to establish a baseline for measurement. See id. at 571 (Noonan, J., concurring); Appellee Supp. Letter, Dkt. No. 64. The procedure was " developed by

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Czech psychiatrist Kurt Freund as a means to study sexual deviance," and it was " at one time used by the Czechoslovakian government to identify and ‘ cure’ homosexuals." Weber, 451 F.3d at 562 (citing David M. Friedman, A Mind of Its Own: A Cultural History of the Penis 232 (2001)).1 Whether the device was " successful" in this regard is not reflected in the record.


" Generally, we review conditions of supervised release for abuse of discretion," United States v. Green, 618 F.3d 120, 122 (2d Cir.2010), as " [a] district court retains wide latitude in imposing conditions of supervised release," United States v. Reeves, 591 F.3d 77, 80 (2d Cir.2010) (internal quotation marks omitted). Nevertheless, " [w]hen a challenge to a condition of supervised release presents an issue of law, we review the imposition of that condition de novo, bearing in mind that any error of law necessarily constitutes an abuse of discretion." United States v. MacMillen, 544 F.3d 71, 74-75 (2d Cir.2008). Moreover, we will " carefully scrutinize unusual and severe conditions." United States v. Sofsky, 287 F.3d 122, 126 (2d Cir.2002) (internal quotation marks omitted).


A person, even if convicted of a crime, retains his humanity. He also retains his right to substantive due process, even if it is sharply diminished in many respects. See United States v. Myers, 426 F.3d 117, 125-26 & n. 8 (2d Cir.2005). Substantive due process prohibits the government from invading personal immunities that are " implicit in the concept of ordered liberty" and " so rooted in the traditions and conscience of our people as to be ranked as fundamental." Rochin v. California, 342 U.S. 165, 169, 172, 72 S.Ct. 205, 96 L.Ed. 183 (1952) (internal quotation marks omitted); see also Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 78 L.Ed. 674 (1934); Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 82 L.Ed. 288 (1937).

As we have previously said of mental health " treatment" involving penile plethysmography, " [w]e think there can be no serious doubt that the liberty interests implicated here are of a high order." Bailey v. Pataki, 708 F.3d 391, 402 (2d Cir.2013); see also Weber, 451 F.3d at 563 (holding that...

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