United States v. Ellis

• Decision Date: 20 May 2013
• Docket Number: No. 12–10162.,12–10162.
• Citation: 720 F.3d 220
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Todd Wayne ELLIS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

720 F.3d 220

UNITED STATES of America, Plaintiff–Appellee

v.Todd Wayne ELLIS, Defendant–Appellant.

No. 12–10162.

United States Court of Appeals,Fifth Circuit.

May 20, 2013.

Andrew O. Wirmani, Esq., Assistant U.S. Attorney, U.S. Attorney's Office, Dallas, TX, for Plaintiff–Appellee.

Jerry Van Beard, Esq., Assistant Federal Public Defender, Kevin Joel Page, Federal Public Defender's Office, Northern District of Texas, Dallas, TX, Michael Lowell King, Assistant Federal Public Defender, Federal Public Defender's Office, Northern District of Texas, Lubbock, TX, for Defendant–Appellant.

Appeal from the United States District Court for the Northern District of Texas.

Before JOLLY, GARZA, and OWEN, Circuit Judges.

PER CURIAM:

Todd Wayne Ellis pleaded guilty to possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B), (b)(2). He appeals several conditions of his supervised release. We AFFIRM.

I

As a result of a lead from a different investigation, law enforcement agents downloaded videos depicting child pornography through a peer-to-peer network and discovered Ellis's computer was the source of the videos. Law enforcement agents then executed a search warrant of Ellis's residence while Ellis was present. Ellis admitted his use of the peer-to-peer network for child pornography.

The agents interviewed Ellis's 19–year–old nephew, R. Brecheisen, while conducting the search. Brecheisen, who along with his immediate family resided in another home on Ellis's property, revealed that Ellis molested him on the property when he was 12 or 13 years old. Brecheisen also revealed Ellis molested his cousin and another boy. Brecheisen's father then corroborated these statements and added that Ellis molested Brecheisen's brother along with the other boys when they were all 12 or 13 years old. In addition, the agents found dozens of videos and images depicting child pornography on Ellis's computer.

Ellis was charged with one count of receipt and distribution of child pornography and one count of possession of child pornography. He pleaded guilty to only the possession charge pursuant to a plea agreement. His pre-sentence report (“PSR”) indicated he is certified as a registered polysomograph technician and was previously employed in that capacity. The PSR also indicated Ellis reported he was sexually abused as a child but never received counseling. The PSR included Brecheisen's and Brecheisen's father's allegations, to which Ellis objected as untrue in his written objections to the PSR. In an addendum, the PSR indicated that Brecheisen told the agents he installed a lock on his door at age 17 because of his apprehension of Ellis's continued sexual propositions. The probation officer who prepared the PSR contacted Brecheisen, who confirmed the abuse but refused to elaborate further.

At sentencing, Ellis objected to the testimony of the officer who interviewed Brecheisen and his father on hearsay and Confrontation Clause grounds. The district court overruled the objection and the agent testified that Brecheisen said the abuse occurred on several occasions, included Ellis touching Brecheisen's genitals and engaging in oral sex, and continued for a long time. The agent testified that Brecheisen said Ellis propositioned him when he was 17 years old and made a sexually explicit comment to him when he was 18 years old, and, as a result, Brecheisen put a lock on his door. The district court sentenced Ellis to the statutory maximum of 120 months of incarceration and a lifetime of supervised release.

The district court imposed seven conditions of supervised release that are relevant to this appeal. They are as follows:

The defendant shall participate in sex offender treatment services as directed by the probation officer until successfully discharged. These services may include psycho-physiological testing (i.e. clinical polygraph, plethysmograph, and the ABEL screen) to monitor the defendant's compliance, treatment progress, and risk to the community. The defendant shall contribute to the costs of services rendered (copayment) at a rate of at least 5.00 per month.

The defendant shall have no contact with persons under the age of 18, including by correspondence, telephone, internet, electronic communication, or through third parties. The defendant also shall not have access to or loiter near school grounds, parks, arcades, playgrounds, amusement parks or other places where children may frequently congregate. The defendant shall neither seek nor maintain employment or volunteer work at any location and/or activity where persons under the age of 18 congregate, without prior permission of the probation officer. Furthermore, the defendant shall not date or befriend anyone who has children under the age of 18, without prior permission of the probation officer.

The defendant shall not have any form of unsupervised contact with persons under the age of 18 at any location, including but not limited to, the defendant's residence, place of employment, and public places where minors frequent or congregate, without prior permission of the probation officer.

The defendant shall neither possess nor have under his/her control any sexually oriented, or sexually stimulating materials of adults or children. This may include visual, auditory, telephonic, electronic media, email, chat communications, instant messaging, or computer programs. The defendant shall not patronize any place where such material or entertainment is available. The defendant shall not use any sex-related telephone numbers.

The defendant shall not possess, have access to, or utilize a computer or internet connection device including, but not limited to Xbox, PlayStation, Nintendo, or similar device without permission of the court.

The defendant shall participate in mental health treatment services as directed by the probation officer until successfully discharged. These services may include medications prescribed by a licensed physician. The defendant shall contribute to the costs of services rendered (copayment) at a rate of at least $5.00 per month.

The district court stated lifetime supervised release “will ensure that [Ellis] compl[ies] with the sex offender registration law and not have access to children” and “[s]ex offender and treatment conditions are recommended because of the nature of the offense.” Ellis's counsel objected “[t]o the lifetime of supervision and the conditions therein as being excessive,” which the district court overruled. Ellis timely appealed.

II

We review substantive reasonableness challenges to conditions of supervised release for abuse of discretion. United States v. Miller, 665 F.3d 114, 126 (5th Cir.2011). “To preserve error, an objection must be sufficiently specific to alert the district court to the nature of the alleged error and to provide an opportunity for correction.” United States v. Neal, 578 F.3d 270, 272 (5th Cir.2009). If an error was not preserved, our review is for plain error so “we must determine (1) if there was error, (2) if it was plain, (3) if the error affects substantial rights, and (4) if allowing that error to stand seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Alvarado, 691 F.3d 592, 598 (5th Cir.2012).

III

A district court's discretion in imposing conditions of supervised release, though extensive, is subject to statutory requirements. United States v. Paul, 274 F.3d 155, 164 (5th Cir.2001). The conditions of supervised release must be related to one of four factors: (1) “the nature and circumstances of the offense and the history and characteristics of the defendant;” (2) “the need ... to afford adequate deterrence to criminal conduct;” (3) “the need ... to protect the public from further crime of the defendant;” and (4) “the need ... to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.” 18 U.S.C. §§ 3583(d)(1), 3553(a)(1) and (2)(B)-(D); United States v. Weatherton, 567 F.3d 149, 153 (5th Cir.2009) (explaining a condition of release “must be reasonably related to one of four factors”). In addition, the conditions may not impose a “greater deprivation of liberty than is reasonably necessary for the purposes set forth in” § 3553(a). 18 U.S.C. § 3583(d)(2). Ellis appeals the conditions recounted above, and we address each in turn.

A

Ellis appeals six conditions on the grounds that they are not reasonably related to the § 3553(a) factors and are a greater deprivation of liberty than necessary under § 3583(d)(2). Because Ellis objected before the district court, our review is for abuse of discretion. Miller, 665 F.3d at 126. We are not convinced any of his challenges on these grounds have merit.

First, Ellis appeals the special condition that he not “possess, have access to, or utilize a computer or internet connection device ... without prior approval of the court.” Contrary to Ellis's concern in his brief, modern devices such as cars and appliances do not come under the purview of the ban because the categorical term “computers” is subject to a “commonsense understanding of what activities the categor[y] encompass[es].” Paul, 274 F.3d at 167. However, restrictions on Internet and computer use are often imposed in cases involving child pornography, and this circuit has routinely upheld such restrictions. E.g. Miller 665 F.3d at 126, 133–34 (holding district court did not abuse discretion in imposing twenty-five year ban on computer use without probation office approval); see alsoU.S. Sentencing Guidelines Manual § 5D1.3(d)(7)(B) (2011) (“A condition limiting the use of a computer or an interactive computer service [is recommended] in cases in which the defendant used such items.”).

Second, Ellis appeals the condition requiring him to “have no contact with persons under the age of 18, including by correspondence, telephone, internet, electronic...