United States v. Musso
2011 U.S. App. LEXIS 13614
| 7th Cir. | 2011Background
- Musso pled guilty in 2005 to 11 counts of possession of child pornography and received 37 months' imprisonment and three years' supervised release.
- Five years later, the government petitioned to revoke supervised release alleging six violations: three standard conditions and three special-condition violations related to treatment.
- Musso admitted two standard-condition violations; the government dismissed the third; Musso challenged the three special-condition violations.
- The district court found all allegations proven by preponderance and revoked release, imposing six months' imprisonment and 30 months of supervised release, plus new special conditions.
- Musso had an original 2006 special-condition requiring participation in a sexual offender treatment program and compliance with its rules; a 2009 contract outlined treatment expectations and prohibitions.
- A 2010 search uncovered 37 photos of female erotica and seven photos of Musso with his young nephew at a car wash; officers also learned of problematic contacts with a minor and therapist concerns about treatment engagement.
- On appeal, Musso challenges the revocation and the new special conditions; the Seventh Circuit reviews for abuse of discretion and applies plain-error review to unobjected stipulations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Revocation standard proven by preponderance | Government argues violations proven by preponderance under §3583(e)(3). | Musso contends insufficient evidence to prove special-condition violations. | Revocation affirmed; standard satisfied by preponderance. |
| Evidence supporting first special-condition violation (meaningful participation in therapy) | O'Steen notes showed superficial participation and lack of homework. | Musso contends findings relied on generalized concerns and admission to other violations. | Supported; record shows failure to engage meaningfully and complete homework. |
| Evidence supporting second special-condition violation (possession of prohibited materials) | Box of 37 photos of female erotica violated contract terms; Musso admitted familiarity and possession. | Musso disputes applicability of particular sub-provisions or intent. | Supported; possession of prohibited materials established a violation. |
| Evidence supporting third special-condition violation (contact with a minor) | Musso drove McBride and his daughter to daycare and he had the daughter alone in the car. | Musso argues circumstances were not prohibited contact. | Supported; contact with a minor outside a protected relationship violated the contract. |
| Imposition of new special conditions (plain-error review) | New conditions reasonably related to offense history and treatment needs. | Not adequately noticed; potential overreach beyond necessity. | Not plain error; conditions reasonable and related to protection and treatment. |
Key Cases Cited
- United States v. Young, 41 F.3d 1184 (7th Cir. 1994) (abuse-of-discretion standard for revocation of supervised release)
- United States v. Berry, 583 F.3d 1032 (7th Cir. 2009) (clear-error review of district court factual findings)
- United States v. Ross, 475 F.3d 871 (7th Cir. 2007) (plain-error review for unobjected special conditions)