United States v. Van Donk

• Decision Date: 08 June 2020
• Docket Number: No. 19-4588, No. 20-4167,19-4588
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Daryl John VAN DONK, a/k/a Daryl Jon Van Donk, Defendant – Appellant. United States of America, Plaintiff - Appellee, v. Daryl John Van Donk, a/k/a Daryl Jon Van Donk, Defendant – Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

961 F.3d 314

UNITED STATES of America, Plaintiff - Appellee,

v.Daryl John VAN DONK, a/k/a Daryl Jon Van Donk, Defendant – Appellant.

United States of America, Plaintiff - Appellee,

v.Daryl John Van Donk, a/k/a Daryl Jon Van Donk, Defendant – Appellant.

No. 19-4588

No. 20-4167

United States Court of Appeals, Fourth Circuit.

Argued: January 30, 2020

Decided: June 8, 2020

ARGUED: Erin Margaret Trodden, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Harrisonburg, Virginia, for Appellant. Laura Day Rottenborn, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee. ON BRIEF: Juval O. Scott, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke, Virginia, for Appellant. Thomas T. Cullen, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.

Before WILKINSON, DIAZ, and FLOYD, Circuit Judges.

Affirmed by published opinion. Judge Diaz wrote the opinion, in which Judge Wilkinson and Judge Floyd joined.

DIAZ, Circuit Judge:

Daryl Van Donk challenges a condition of his supervised release requiring him to comply with the rules of his sex-offender treatment program, which ban him from viewing any materials that sexually arouse him. He argues that this ban is too restrictive to comport with 18 U.S.C. § 3583(d), is unconstitutionally overbroad and vague, and is an impermissible delegation of the court's duty to impose conditions of supervised release.

We disagree. The ban is permissible under § 3583(d) and isn't overbroad because the district court made an individualized assessment, based on the testimony of Van Donk's treatment provider, that it was necessary. It's enforced in a way that avoids the issues with which the vagueness doctrine is concerned. And it's not an impermissible delegation because only the district court will decide whether Van Donk violated his conditions of release. We thus affirm the release condition imposed by the district court.¹

I.

This case has a long procedural history involving several supervised-release revocation proceedings. We begin by summarizing it.

A.

Van Donk was convicted in 2008 of possessing more than 600 images of child pornography and sentenced to eighty months in prison, followed by five years of supervised release. The district court imposed thirteen standard conditions of supervised release, as well as eleven special conditions tailored to child-pornography offenders. One of these special conditions was that Van Donk participate in a sex-offender treatment program of his probation officer's choosing. Another condition was that Van Donk not possess any material depicting adults or minors "engaged in sexually explicit conduct, as defined by 18 U.S.C. § 2256(2)."² S.J.A 133.

Sometime after Van Donk's release, his probation officer discovered that he had child pornography at his mother's house. He admitted to viewing these images and to visiting a Goodwill store to view pornography on its computers. The district court revoked Van Donk's supervised release and sentenced him to another twelve months in prison followed by three years of supervised release.

Van Donk was released again in November 2015, completed a ten-month intensive inpatient sex-offender treatment program in Minnesota, and then returned to his Virginia home. At his probation officer's direction, he entered an outpatient sex-offender treatment program run by Vicki Cash Graff, a clinical social worker.

During an unannounced search in May 2017, a probation officer found two hundred sexually explicit DVDs at Van Donk's residence. Police officers found no child pornography on these DVDs, however. His probation officer verbally reprimanded him and advised that he was now on a zero-tolerance policy.

In May 2018, Van Donk failed a polygraph examination (administered by his probation officer) regarding whether he had viewed pornography. He then admitted to "having watched a shower scene between two females ages 8–10" on a Spanish cable channel. J.A. 90. A subsequent search of Van Donk's home uncovered sixteen DVDs and a cell phone containing pornography. Some of the DVDs purported to depict juveniles, although police couldn't determine whether the individuals therein were minors. Additionally, the probation officer found a handwritten list of pornographic films and individuals depicted therein on his bedside table, some of whose titles referenced juvenile girls. Van Donk explained to the officer that he wrote these titles down so he could remember them after his period of supervision was over. The officer then petitioned to revoke Van Donk's supervised release.

B.

The district court held a revocation hearing in October 2018. Van Donk's probation officer testified as to the pornographic materials found at Van Donk's home. The officer also cited a report from Graff, who was still supervising Van Donk's treatment. Graff's report indicated that Van Donk "was no longer receptive to any type of treatment services" and was "riding out the remainder of his period of supervision." S.J.A 158.

Van Donk offered letters from several people about the progress that he had made, including his supervisor from the Minnesota inpatient treatment program he had attended two years earlier. That supervisor opined that it was healthy for Van Donk to use pornography to "bridge arousal to adult targets." J.A. 92. He noted, though, that Van Donk "had a history of using sexually explicit material to cope with life" and that if he was continuing to do that, it would be problematic. J.A. 93. Van Donk's counsel conceded that he had violated his conditions of release, but asked that he be treated leniently because he was only caught with adult pornography and because he was understandably tired of going through Graff's intense program.

The district court sentenced Van Donk to six more months in prison and eighteen months of supervised release, a sentence within the applicable Federal Sentencing Guidelines. The court said that it was "reaffirming each and every one of the conditions we have imposed" after Van Donk's revocation, S.J.A. 188, and then announced:

I have said, and I have made as clear as I can, an individual assessment that this gentleman cannot possess pornography of any kind because he cannot be constrained from straying from sexually explicit conduct into the area of child pornography. He's just done it time and time again and for that reason, I find and I conclude that I believe that this condition of no sexually explicit material ... is appropriate for his specific circumstances ....

No pornography for Mr. Vandonk [sic]. I have made my individual assessment based on his own conduct and his inability to stay away from images involving or portraying children involved in sex.

S.J.A 191–92.

Despite stating that it was reaffirming the prior conditions, the court reworded some of them without explaining why. The court replaced the earlier condition banning sexually explicit materials with one stating that Van Donk "shall not possess, view or otherwise use any type of pornography, to include adult, juvenile or child pornography, or pornography that depicts juveniles." J.A. 36. Another new condition—the one at issue in this appeal—was that Van Donk submit to sex-offender treatment and "abide by all rules, requirements, and conditions imposed by the treatment provider until discharged from treatment by the provider." J.A. 34.

Van Donk appealed, challenging the condition that he not use "any type of pornography" as overbroad and unconstitutionally vague. The government conceded that a ban on "pornography," without further definition, might be too vague. The government thus moved to remand to the district court, asserting that the condition should, as it did before, ban depictions of sexually explicit conduct as defined by 18 U.S.C. § 2256(2). We granted the government's motion. In the meantime, Van Donk was released from prison in May 2019 and re-entered Graff's outpatient program.

C.

The district court held a hearing on the condition banning pornography in July 2019, at which Graff testified. She has been a certified sex-offender treatment provider for nearly thirty years. Graff initially prohibits all of her patients from viewing sexually explicit materials, but she had been working with Van Donk long enough to see that this prohibition was especially needed for him.

A goal of Graff's program is for patients to develop healthy sexual relationships, and she thought "pornography serves as a barrier" to Van Donk's "engaging in contact with age-appropriate partners." J.A. 98–99. She posited that Van Donk was addicted to pornography and, because Van Donk was aroused by both adult and juvenile females, she feared that "would eventually lead to child porn." J.A. 99. She also believed that his prior treatment program, which used pornography to try to limit his arousal to adults, was unsuccessful.

Graff expected Van Donk to remain in her program for the full eighteen months of his supervised release. She wouldn't allow Van Donk to view pornography at any point in the program and didn't think he should ever view it for the rest of his life. In fact, she suggested that pornography "isn't healthy" for anyone. J.A. 103.

Graff also explained that her program's definition of "pornography" extended to mainstream media (like movies or advertisements) that sexually aroused Van Donk. In her view, if Van Donk were to see anything that aroused him enough that he wanted to view it again or masturbate to it—even a scene in a mainstream movie or a television show—he should report it to Graff and then not access it again. Graff stated that a relationship with a peer-aged woman would be a sign of progress for Van Donk.

Van Donk's counsel argued that the pornography ban Graff described was overbroad and vague, and that the court shouldn't be enforcing rules meant to help Van Donk have healthy relationships because that is beyond the scope of supervised release. While crediting Graff's testimony that adult pornography could be a gateway...