65 F. Supp. 3d 1140
D. Colo.2014Background
- Von Behren pled guilty Jan 11, 2005 to receipt/distribution of child pornography; sentenced to 121 months imprisonment followed by 3 years supervised release.
- Original supervised release included mandatory/standard conditions plus special conditions: sex offender evaluation/treatment (may include polygraph/physiology tests) and broad computer/internet monitoring.
- Feb 26, 2014 probation sought three additional special conditions via RSA program, including residential reentry center, enhanced treatment with computer monitoring, and broad search/monitoring authority.
- March 21, 2014 court granted 180-day residential reentry center; RSA contract with RSA, SOMB-approved, would impose plethysmograph/polygraph and related monitoring; Von Behren objected to several terms.
- Court held RSA-related terms are treated as supervised release conditions; rigorous individualized findings are required for plethysmography and certain restrictions; several objections sustained, others overruled or deemed not ripe; orders modify and approve some conditions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Fifth Amendment risk from sexual history polygraph | Von Behren: complete history risks self-incrimination | RSA/contract may limit disclosure to case-related history | Fifth Amendment risk present; limit admissions to case history or immunity recommended |
| Constitutionality of pleading guilty requirement | Requirement violates Fifth/Sixth Amendments | Interpreted narrowly to apply only to case at issue; no compulsion | Ruled not violated when interpreted to apply only to case conduct; not coercive |
| Plethysmograph testing as arousal assessment | Testing is unreliable, intrusive, and beyond necessary liberty restraint | SOMB standards require/justify plethysmography for treatment | Objection sustained; absent individualized Weber findings, plethysmography not approved for Von Behren |
| Dating restrictions and First Amendment right to association | Ban on dating adults violates association rights and §3583(d) | Restrictions tied to treatment/safety; not ripe due to contingent scope | Not ripe; allowed to proceed with possible approval of dating restrictions |
| Search/monitoring and delegation to probationRSA | Overbroad delegation; potential occupational impact; vague | Permissible for monitoring/ensuring treatment with tailored findings | Restricted part approved; need tailored findings for certain broad searches; some parts denied without prejudice |
Key Cases Cited
- United States v. Weber, 451 F.3d 552 (9th Cir.2006) (plethysmograph requires individualized, case-specific findings when imposed)
- United States v. McLaurin, 731 F.3d 258 (2d Cir.2013) (blanket plethysmography invalid; need reliability/therapeutic justification)
- United States v. Begay, 631 F.3d 1168 (10th Cir.2011) (polygraph allowed; still requires tailored relation to 3553 factors; reliability concerns acknowledged)
- United States v. Mike, 632 F.3d 686 (10th Cir.2011) (significant liberty interests require court-made findings for certain conditions; avoid delegation)
- McKune v. Lile, 536 U.S. 24 (1982) ( Fifth Amendment protection against compelled self-incrimination; not all treatment disclosures are coercive)