United States v. Von Behren, Criminal Case No. 04–cr–00341–REB

• Decision Date: 26 August 2014
• Docket Number: Criminal Case No. 04–cr–00341–REB
• Citation: 65 F.Supp.3d 1140
• Court: U.S. District Court — District of Colorado
• Parties: United States of America, Plaintiff, v. Brian Von Behren, Defendant.

65 F.Supp.3d 1140

United States of America, Plaintiff

v.Brian Von Behren, Defendant.

Criminal Case No. 04–cr–00341–REB

United States District Court, D. Colorado.

Signed August 26, 2014

Valeria Neale Spencer, U.S. Attorneys, Denver, CO, for Plaintiff.

Scott Varholak, Federal Public Defenders Office, Denver, CO, for Defendant.

ORDER CONCERNING PETITION FOR MODIFICATION OF TERMS OF SUPERVISED RELEASE, OBJECTIONS TO TERMS OF SUPERVISED RELEASE, AND MOTION TO MODIFY CONDITIONS OF SUPERVISED RELEASE

ROBERT E. BLACKBURN, United States District Judge

This matter is before the court on the following: (1) the Petition for Issuance of Summons on Supervised Release (Petition) [# 54]¹ filed March 14, 2014; and (2) Defendant's Combined Objection To Incorporation of RSA, Inc. Contract into Terms of Supervised Release and Motion To Modify Conditions of Supervised Release [# 67] filed April 11, 2014. The government filed a response [# 70]. I conducted hearings on the petition and combined objections and motion on March 21 and May 28, 2014.

A. FACTS

On January 11, 2005, Mr. Von Behren pled guilty to one count of receipt and distribution of child pornography in violation of 18 U.S.C. § 2252A(a)(2)(B). On March 31, 2005, this court sentenced Mr. Von Behren to a term of incarceration of 121 months, followed by a term of supervised release of three years. In addition to mandatory and standard conditions of supervised release, the court imposed the following explicit, i.e., special, conditions which are relevant to the instant motion:

1. The defendant shall participate in an approved program of sex offender evaluation and treatment, which may include polygraph, plethysmograph and Abel examinations, as directed by the probation officer. The defendant will be required to pay the cost of these evaluations and treatment. The defendant shall comply with the rules and restrictions specified by the treatment agency. The Court authorizes the probation officer to release psychological reports and/or the presentence report to the treatment agency for continuity of treatment.

2. The defendant shall notify the probation officer of all computers and/or other Internet access devices to which the defendant has access. The defendant shall allow the probation officer to make unannounced examinations of the data stored on the defendant's personal computer(s) and other Internet devices, and collected by such system(s) at any reasonable time and copy data which the probation officer believes may be evidence of a law violation or a technical violation of a condition of supervised release.

Petition [# 54], pp. 2–3.

On February 26, 2014, while Mr. Von Behren was in the custody of the Bureau of Prisons, United States Probation Officer Walter E. Vanni sent a Waiver of Hearing to Modify Conditions of Supervised release to the defendant's case manager. Via the waiver, the probation department sought the agreement of Mr. Von Behren to additional special conditions not originally imposed by this court. On Mr. Von Behren's request for a hearing, Mr. Vanni filed the instant Petition, requesting this court hold a hearing to impose the modified conditions requested. The Petition sought the inclusion of three, additional, special conditions:

1. The defendant shall reside in a residential reentry center (RRC) for a period of up to 180 days, at the discretion of the probation officer, to commence upon release from confinement, and shall observe the rules of that facility;

2. The defendant shall participate in and successfully complete an approved program of sex offender evaluation and treatment, which may include polygraph, plethysmograph, and Abel examinations, as directed by the probation officer. The defendant will be required to pay the cost of these evaluations and treatment. The defendant shall comply with the rules and restrictions specified by the treatment agency. The Court authorizes the probation officer to release psychological reports and/or the presentence report to the treatment agency for continuity of treatment; the defendant's use of computers and Internet access devices shall be limited to those the defendant requests to use, and which the probation officer authorizes.

3. The defendant shall submit his person, and any property, house, residence, vehicle, papers, computer, other electronic communications or data storage devices or media, and effects to search at any time, with or without a warrant, by any law enforcement or probation officer with reasonable suspicion concerning a violation of a condition of supervised release or unlawful conduct by the person, and by any probation officer in the lawful discharge of the officer's supervision functions; and, the defendant shall allow the probation officer to install software/hardware designed to monitor computer activities on any computer the defendant is authorized by the probation officer to use. The software may record any and all activity on the computer, including the capture of keystrokes, application information, Internet use history, email correspondence, and chat conversations. A notice will be placed on the computer at the time of installation to warn others of the existence of the monitoring software on the computer. The defendant shall not attempt to remove, tamper with, reverse engineer, or in any way circumvent the software/hardware.

On March 21, 2014, the court granted the Petition in part and imposed the first of these proposed modifications—that Mr. Von Behren reside in an RRC for up to 180 days. The defendant objects to portions of the second and third proposed modifications. The probation department seeks to utilize RSA, Inc. (RSA) as the sex offender treatment agency. Mr. Von Behren anticipates that he will be required to enter into a treatment agreement with RSA. The terms of the contract are not subject to negotiation by the person in treatment.

Included with the response of the government is a copy of the agreement with RSA signed by Mr. Von Behren on April 17, 2014. Exhibit [# 70–1] (RSA Documents). The RSA Documents include: (1) Authorization for Release of Polygraph Information [# 70–1] p. 5; (2) Acknowledgment of Non–Confidentiality and Waiver of Confidentiality, Privilege, and Right of Privacy [# 70–1] pp. 7–8; (3) No Contact With Minors Condition [# 70–1] pp. 23–26; (4) Adult Offender Treatment Contract [# 70–1] pp. 27–39. Mr. Von Behren objects to certain terms of the agreement.

In the state of Colorado, sex offender treatment is regulated by the Sex Offender Management Board (SOMB) of the Division of Criminal Justice, under the aegis of the Colorado Department of Public Safety. The SOMB was established in 1992 through legislation enacted by the Colorado General Assembly. The SOMB was charged to promulgate and implement statewide standards and guidelines for the evaluation, treatment, and behavioral monitoring of sex offenders. The Standards and Guidelines issued by the SOMB represent the best practices known today for managing and treating sex offenders. Federal offenders who are court-ordered to participate in sex offender treatment and who are being supervised in the District of Colorado are referred by the probation office to agencies approved by the SOMB. RSA is such a SOMB approved agency. SOMB standards require treatment agencies to administer plethysmograph and polygraph examinations as part of the sex offender evaluation and any concomitant treatment program. From a practical standpoint, offenders cannot be accepted into the sex offender treatment program if they will not participate in the SOMB mandated aspects of evaluation and/or treatment. According to the government, plethysmograph and polygraph examinations are a crucial resource used by sex offender treatment agencies to provide defendants with the most effective treatment.

B. STANDARDS OF REVIEW

The imposition of conditions of supervised release is governed by 18 U.S.C. § 3583(d) (Cf. USSG § 5D1.3, Conditions of Supervised Release ). That statutory section provides that the court may order a special condition of supervised release, provided such condition: (1) is reasonably related to the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D); (2) involves no greater deprivation of liberty than is reasonably necessary for the purposes set forth in section 3553(a)(2)(B) (deterrence), (a)(2)(C) (protection of the public), and (a)(2)(D) (correctional treatment); and (3) is consistent with any pertinent policy statements issued by the Sentencing Commission pursuant to 28 U.S.C. § 994(a). 18 U.S.C. § 3583(d) ; USSG 5D1.3(b).

Interpreting this section, the United States Court of Appeals for the Tenth Circuit has required “conditions of supervised release to be linked to the offense and be no broader than necessary to rehabilitate the defendant and protect the public.” U.S. v. Smith, 606 F.3d 1270, 1282 (10th Cir.2010). The Tenth Circuit has recognized that a district court may modify the conditions of supervised release even when the modification is based solely on the evidence that was available at the time of sentencing and there have been no changed circumstances (much less a supervised release violation). See U.S. v. Begay, 631 F.3d 1168, 1171–72 (10th Cir.2011).

Generally, a sentencing “court is required to give reasons on the record for the imposition of special conditions of supervised release. See United States v. Kravchuk, 335 F.3d 1147, 1159 (10th Cir.2003). Generally, the court need only provide a ‘generalized statement of its reasoning.’ United States v. Edgin, 92 F.3d 1044, 1049 (10th Cir.1996).” United States v. Hahn, 551 F.3d 977, 982–83 (10th Cir.2008). However, “section 3583(d)(2) requires conditions restricting a defendant's liberty to be especially fine-tuned to achieve the goals set forth in section 3553(a)(2)(B), (C) and (D).” Edgin, 92 F.3d at 1049. In Edgin , the court found that the reasons for a special condition restricting contact between the defendant and his son must be stated...