United States v. Marcum
| Decision Date | 03 March 2020 |
| Docket Number | No. 2:10-CR-89,2:10-CR-89 |
| Parties | UNITED STATES OF AMERICA v. MICHAEL JAMES MARCUM |
| Court | U.S. District Court — Eastern District of Tennessee |
This matter is before the Court on a request from the United States Probation Office for the modification of Defendant Michael James Marcum's conditions of supervision. [Doc. 38]. Also before the Court is Defendant's amended motion for the return of seized property, [Doc. 33], and motion to modify conditions of supervised release, [Doc. 41]. The United States has responded to Defendant's motions in opposition, [Docs. 35, 42]. A hearing on all motions was held before the undersigned on December 11, 2019, and the matters are now ripe for review. The Court will discuss each motion in turn.
On September 2, 2010 defendant pleaded guilty to possession of a computer containing an image of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). [Doc. 2]. See [Doc. 1]. On March 21, 2011, the Court overruled Defendant's objections to the special sex offender conditions, and sentenced him to 54 months' imprisonment and to a lifetime term of supervised release consisting of both standard and special conditions of supervision. [Doc. 17]. Defendant completed his term of imprisonment and began his term of supervised release on August 8, 2014.
Approximately four years later, in 2018, defendant's supervising probation officer submitted a violation report advising of Defendant's violation of his conditions of supervised release. A May 22, 2018 routine polygraph exam resulted an inconclusive test. The polygrapher reported Defendant attempted to manipulate the test by holding his breath during comparison questions, questions that should be answered undoubtedly. [Doc. 38 at 2]. In response to these allegations of employing polygraph countermeasures, the assigned probation officer conducted a June 5, 2018 search of defendant's primary and secondary residences. In the search of the approved secondary residence, the home of Laura Byler, the probation officer found a computer tower in the living room, a Samsung smart cell phone under Defendant's mattress, and another cell phone in the bedroom. See [Doc. 33-1 at 1, 3]. Byler claimed ownership of the cellphone, but was unable to unlock the double encryption when asked by law enforcement officials.
Images found on the computer tower included Byler, Byler's husband, Defendant, and a minor child swimming together at Wetlands Water Park in Jonesborough, Tennessee. Other images included sexually explicit photographs and videos of Defendant, Byler, and her husband. Additionally, multiple pictures on multiple dates show Defendant taking pictures, "selfies," of himself with the same Samsung cell phone found underneath a mattress during the search.
Defendant entered into an August 6, 2018 agreed order of revocation admitting to the revocation violations and agreeing to a nine-month term of imprisonment followed by a lifetime term of supervised release. [Doc. 29]. Defendant stipulated to violations of his supervised release from violating the Tennessee Bureau of Investigation Sex Offender registration law Tennessee Code Annotated § 40-39-2111 as evidenced from pictures and videos of Defendant with an underage age child at a local waterpark. Defendant signed the agreed order and, to promote respect for the law, prevent recidivism, and aid in adequate supervision, Defendant agreed to comply with thirteen standard conditions of supervision adopted by this Court in Local Rule 83.10 and thirteen special sex offender conditions adopted by this Court in Standing Order SO-15-06. [Id. at 5-11]. Defendant began his lifetime term of supervised release on March 7, 2019.
In February, 2019, Defendant moved for the return of seized property from the June 5, 2018 search. [Doc. 32]. In an amended motion, Defendant expanded his request to the two cell phones and asked that the cell phones be specifically returned to Byler. [Docs. 33, 34]. The Court granted Defendant's initial motion, [Doc. 32], and the seized items were released to Byler, [Doc. 45]. In the order, the Court set a hearing on Defendant's amended motion regarding the return of the cell phones.
Defendant was administered a polygraph exam in August, 2019. The probation officer noted that during the pre-test admissions, Defendant admitted to the polygraph examiner that he viewed full nudity on HBO, used electronic devices at the career center and his current job with his probation officer's permission, stated he only had incidental contact with minors at Lowe's and Jersey Mikes, and visited an adult bookstore with an adult female friend and that the probation officer was aware of the visit. [Doc. 38 at 4]. However, the test indicated Defendant was untruthful in his answers to the following three questions:
[Id.]. During the post-test interview, Defendant was shown the results and was given an opportunity to explain the discrepancies, and Defendant stated that he failed to mention that his girlfriend and sister showed him YouTube videos on their cellphones. [Id.].
On September 5, 2019, Defendant reported to his probation officer to discuss the polygraph results. The Probation officer asked Defendant when he had notified the officer that he had been to an adult bookstore. Defendant responded that he wrote the information on one of his reporting forms. Defendant admitted to the probation officer that going to a sex shop was probably not a good idea. After the polygraph and Defendant's new admission, the probation officer petitioned the Court to modify the conditions of Defendant's supervision to add a pornography ban condition to his supervised release. [Doc. 38].
On October 5, 2019, Defendant filed a motion to modify conditions of supervised release. [Doc. 41]. In the motion, Defendant challenges six conditions of supervised release that he had agreed to in August, 2018 and the probation officer's proposed condition.
The Court held a December 11, 2019 hearing on the pending motions. At the hearing, Defendant was present with counsel. The Court heard testimony from Mr. Brian Sexton, a certified sex offender treatment provider in the State of Tennessee, who provided individual treatment to Defendant in September and October of 2019, and Mr. Rick Rodgers, polygrapher of Defendant's May 2018 and August 2019 polygraph examinations.
"District courts have 'broad discretion to impose appropriate conditions of supervised release.'" United States v. Chase, 740 F. App'x 833, 834 (6th Cir. 2018) (quoting United States v. Ritter, 118 F.3d 502, 506 (6th Cir. 1997)). "To qualify as 'appropriate,' a condition 'must reasonably relate to the nature of the offense and the history and characteristics of the defendant' and must encompass 'no greater deprivation of liberty than is reasonably necessary to serve the goals of deterrence, protecting the public, and rehabilitating the defendant.'" Id. (quoting United States v. Inman, 666 F.3d 1001, 1004 (6th Cir. 2012)); see also 18 U.S.C. § 3583(d)(2).
On September 12, 2019 the probation officer submitted a request and summons for modification of Defendant's conditions of supervision. [Doc. 38]. Specifically, the probation officer submitted a proposed condition to Defendant's supervision that reads:
[t]he defendant shall not possess any photographs or images of adult pornography. Nor shall he visit, frequent, or remain about any place where such material is available.
This condition is not limited to child pornography, which is illegal to possess. Instead, it bars Defendant from accessing adult pornography that is otherwise legal. Bans on explicit material involving adults raise First Amendment implications and thus are subject to "careful review." United States v. Zobel, 696 F.3d 558, 576 (6th Cir. 2012) (quoting Ritter, 118 F.3d at 504). But such bans are generally upheld as long as they "are 'primarily designed to meet the ends of rehabilitation and protection of the public.'" Id.
Defendant opposes the additional condition and argues the proposed condition is "overbroad, unconstitutionally vague and not reasonably related to his original crime of conviction." [Doc. 57 at 6]. More particularly, Defendant argues that the condition is broad because the nebulous definition of pornography would render some material he is readily exposed to on a daily basis as pornographic. [Id. at 7]. Further, Defendant contends that the proposed condition is not reasonably related to the current circumstances, because Defendant has not committed a pornographic related violation nor was there any pornographic related concern noted by probation or therapy since his initial 2014 release from prison. [Id.]. Conversely, the government contends that the additional condition is appropriate in light of Defendant's conduct during his supervised release. [Doc. 59 at 1-2].
The Sixth Circuit has recognized that, in child pornography cases, there is no controlling precedent on "whether a ban on all pornography is impermissibly vague, and the circuits are split on the issue." Chase, 740 F. App'x at 835 (citing United States v. Lantz, 443 F. App'x 135, 140-1 (6th Cir. 2011)). Our sister circuits have upheld similar bans on the possession of both adult and child pornography when a defendant has been convicted of possessing child pornography upon a finding of a sufficient connection between such possession and illegal behavior. See United States v. Brigham, 569 F.3d 220 (5th Cir. 2009); United States v. Daniels, 541 F.3d 915, 927-28 (9th Cir. 2008); United States v. Simmons, 343 F.3d 72,...
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