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United States v. Behren

United States District Court, D. Colorado

August 26, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
BRIAN VON BEHREN, Defendant

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For USA, Plaintiff: Valeria Neale Spencer, LEAD ATTORNEY, U.S. Attorney's Office-Denver, Denver, CO.

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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

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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

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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. U.S.S.G. § 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); U.S.S.G. 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).

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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 explicitly and that the condition must be fine-tuned because the condition restricted a fundamental liberty of the defendant. Id.

Mr. Von Behren contends that some of the conditions of supervised release imposed on him violate his rights under the Constitution of the United States. Even though a condition of supervised release may pass muster under § 3583(d) and the applicable case law, any condition which violates the constitutional rights of Mr. Von Behren must be altered to remedy the violation or removed as a condition of supervised release.

C. ANALYSIS

Mr. Von Behren objects to eleven aspects of the conditions of his supervised release, including certain features of the proposed modifications of the terms of his supervised release and certain features of the requirements of the RSA program. The objections of Mr. Von Behren address the following topics: 1. Polygraph Testing; 2. Requirement to Plead Guilty; 3. Arousal Assessments; 4. Dating Restrictions / Significant Others Group; 5. Day-to-day activities; 6. Ban on Sexually Stimulating Material; 7. Internet Restrictions; 8. Ban on Alcohol & Illegal Drugs; 9. No Contact Condition; 10. Search & Monitoring; 11. Improper Delegation.

Many of the conditions and requirements at issue are imposed under the terms of the RSA Documents. Generally, compliance with the terms of the RSA documents is required for participation in and successful completion of the RSA program of sex offender treatment. In turn, participation in and completion of sex offender treatment is a condition of supervised release. As a result, I view the requirements of the RSA program as being, in effect, conditions of supervised release. Each condition to which Mr. Von Behren objects is discussed below.

1. Polygraph Testing & Required Disclosures

The RSA Contract requires two types of polygraph examinations. First, an RSA participant is required to complete " an initial sexual history disclosure polygraph examination." RSA Documents [#70-1], CM/ECF p. 29, ¶ 8. Second, an RSA participant must complete additional polygraph examinations described as " follow-up polygraph examinations." Id., CM/ECF pp. 3-4, -¶ 8. The follow-up examinations " will be to monitor [Mr. Von Behren's] compliance with the terms and conditions of [his] treatment contracts and [his] community supervision requirements."

The Adult Offender Treatment Contract includes provisions tilted General Program Conditions. General Program Condition # 8 requires Mr. Von Behren, to complete a " non-deceptive sexual history polygraph process" prior to advancing through the RSA program. RSA Documents [#70-1], CM/ECF p. 29, ¶ 8. If Mr. Von Behren fails to make adequate

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disclosures, he may be required to " participate in a higher frequency of sexual history disclosure polygraphs, increased monitoring and containment, and/or staffing with the case management team." Id., CM/ECF p. 30, ¶ 10. General Program Condition #12 states: " I understand that a pattern of deceptive polygraph examination results (suggesting a lack of honesty with my therapists), whether they are sexual history disclosure polygraphs or monitoring/maintenance polygraphs, may be a factor considered in any decision made regarding whether I am unsuccessfully discharged from, or progressing in my treatment program." Id., CM/ECF p. 30, ¶ 12.

The contract provides further that Mr. Von Behren agrees " to be completely honest during all treatment sessions and assume full responsibility for my offenses and my behavior." Id., CM/ECF p. 36, " Honesty" ¶ 1. Finally, the contract provides that " any violation of the conditions of this contract may be grounds for modification, suspension, and/or discharge from the RSA program at the discretion of the staff." Id., CM/ECF p. 38, ¶ 1. In its response [#70], the government notes that the polygraph testing " is a treatment requirement and modification of this requirement will necessitate the Defendant's termination from any SOMB approved provider of sex offender treatment." Response [#71], p. 8.

The RSA Documents include the following provision concerning reports of any crime committed by Mr. Von Behren about which RSA becomes aware:

I hereby instruct RSA, Inc. to report to any appropriate authority or authorities any occurrence or potential occurrence of any sexual offense on my part regardless of how RSA, Inc. gains knowledge of such occurrence or potential occurrence. " Appropriate authority or authorities" as used in this and subsequent revisions may include, but is not limited to, County Human Services Departments, law enforcement agencies, probation or parole personnel, victims or potential victims, parents, spouses, school personnel, and employers.

Acknowledgment of Non-Confidentiality and Waiver of Confidentiality, Privilege, and Right of Privacy [#70-1] p. 7, ¶ 4.

a. Fifth Amendment

Mr. Von Behren argues that the sexual history polygraph testing requirement permits RSA to put questions to Mr. Von Behren and to require answers even though some answers to some questions may incriminate him in a subsequent or pending criminal prosecution. He contends this constitutes a violation of his Fifth Amendment privilege against self incrimination. To establish his Fifth Amendment claim, Mr. Von Behren must prove two things: (i) that the statements sought by the government carry the risk of incrimination; and (ii) that the threatened penalty constitutes compulsion. Doe v. Heil, 781 F.Supp.2d 1134, 1138 (D. Colo. 2011) aff'd, 533 F.App'x 831 (10th Cir. 2013) (citing U.S. v. Antelope, 395 F.3d 1128, 1135 (9th Cir. 2005)).

U.S. v. Antelope, 395 F.3d 1128, 1135 (9th Cir. 2005) is a factually similar case which provides a useful guide to relevant authority and analysis. In Antelope, the defendant was convicted of possession of child pornography. Initially, he was sentenced to five years probation. One of his conditions of probation required him to participate in the Sexual Abuse Behavior Evaluation and Recovery (SABER) program. Antelope's probation was revoked based on his failure to comply with certain conditions, including the requirement that he submit to polygraph examinations as part of the SABER program. After a long

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history of appeals and repeated revocations, the United States Court of Appeals for the Ninth Circuit addressed the Fifth Amendment issue. Antelope had been told that any past criminal offenses revealed in the course of the program could be released to the authorities. Antelope, 395 F.3d at 1131. Antelope's request for immunity from prosecution for any such statements was denied. Id. The Antelope analysis is discussed further below.

(i) Incrimination - The right against self incrimination is applicable only when the threatened incrimination is real and appreciable rather than remote, unlikely, or speculative. Minnesota v. Murphy, 465 U.S. 420, 435 n.7, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984). While a person claiming the privilege need not incriminate himself to claim the privilege, if the circumstances appear to be innocuous, the person claiming the privilege must make some positive disclosure indicating where the danger lies. McCoy v. C.I.R., 696 F.2d 1234, 1236 (9th Cir. 1983).

In the present case and in Antelope, the government argued that the Fifth Amendment issue is not ripe because " no situation implicating the defendant's Fifth Amendment rights has arisen at this juncture." Response [#70], p. 8. In Antelope, the court found the issue to be ripe. Antelope's probation and, later, supervised release were conditioned " on the submission of a sexual autobiography that we may assume would have revealed prosecutable offenses." Id. at 1133 (emphasis added). " Based on the nature of [the requirement to reveal full sexual history] and Antelope's steadfast refusal to comply, it seems only fair to infer that his sexual autobiography would, in fact, reveal past sex crimes." Id. at 1135.

Without knowing the precise questions that might be put to Mr. Von Behren about his sexual history and the possible range of answers, it is difficult to determine precisely whether or not the answers to those questions pose a real and appreciable risk of self-incrimination. However, if complete revelation of sexual history includes all past, sexual, criminal offenses, if there actually are past sexual criminal offenses and if the statute of limitations has not run on such offenses, then answers to questions about past sexual history do pose a real and appreciable risk of incrimination. Facing questions which ask about sex with minors, forced sex, or other similar categories, anything but a " no" answer poses a real risk of incrimination. In contrast, a question which asks for a description of every sexual encounter over the past 10 years may or may not present a risk of incrimination. The difference lies in the underlying facts of Mr. Von Behren's history, facts he does not want to reveal, at least to some extent, for fear of incriminating himself.

In the end, I conclude that the requirement that Mr. Von Behren reveal a complete sexual history presents a real risk of self-incrimination. Revelation of a complete sexual history could include criminal offenses. I may and do infer that the refusal of Mr. Von Behren to comply with this requirement is some indication that he believes that he faces a risk of incrimination.

In Searcy v. Simmons, 299 F.3d 1220 (10th Cir. 2002), the Tenth Circuit considered a sex offender treatment program for incarcerated inmates which program included a similar requirement that the inmate reveal his complete sexual history -- crimes and all. The court concluded that the complete sexual history requirement presented a real risk of incrimination. Id. at 1225 n. 2 (concluding that the McKune Court " determined that ...


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