United States v. Music , 49 F. App'x 393 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4046
RICKIE MUSIC,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
N. Carlton Tilley, Jr., Chief District Judge.
(CR-00-86)
Argued: September 26, 2002
Decided: October 24, 2002
Before NIEMEYER, LUTTIG, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Thomas Norman Cochran, Assistant Federal Public
Defender, Greensboro, North Carolina, for Appellant. Lisa Blue
Boggs, Assistant United States Attorney, Greensboro, North Carolina,
for Appellee. ON BRIEF: Anna Mills Wagoner, United States Attor-
ney, Greensboro, North Carolina, for Appellee.
2 UNITED STATES v. MUSIC
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
After pleading guilty to one count of possession of child pornogra-
phy, see 18 U.S.C. § 2252(a)(5)(B) & (b)(2), Rickie Music was sen-
tenced to 60 months of imprisonment and 3 years of supervised
release. The district court, over Music’s objection, included the fol-
lowing condition in Music’s supervised release terms: "defendant
shall participate in an evaluation and a mental health program with
emphasis on sex offender treatment at the discretion of the probation
officer. Treatment may include physiological testing such as the poly-
graph and penile plethysmograph, and the use of prescribed medica-
tions."* Music appeals this condition, arguing that the district court
erred in subjecting him to possible polygraph and plethysmograph
testing because this testing does not satisfy the requirements for
imposing conditions on supervised release laid out in 18 U.S.C.
§ 3583(d). Specifically, Music argues that this circuit’s general rule
against admitting evidence from such testing implies that it is insuffi-
ciently reliable to serve as a condition of supervised release. The fact
that polygraph and penile plethysmograph testing is generally inad-
missible for evidentiary purposes does not mean that the tests are
unreliable for other purposes, such as treatment. We therefore affirm
Music’s sentence.
*A penile plethysmograph
is a test designed to measure the client’s patterns of sexual
arousal, and is administered as follows. The client places a penile
circumference gage around his penis. A wire from the gage leads
to an electronic machine which records the circumference of the
client’s penis on a line graph, while the client is presented with
a series of audio and visual material. The client wears a hospital
gown during the test.
Walrath v. United States, 830 F. Supp. 444, 446 n.1 (N.D. Ill. 1993).
UNITED STATES v. MUSIC 3
I.
When imposing a sentence of supervised release, a district court
must include certain conditions listed in 18 U.S.C. § 3583(d). In addi-
tion, the court may include "any other condition it considers to be
appropriate," id., as long as that condition "is reasonably related" to
certain statutory factors referred to in § 3583(d)(1). These factors are:
"the nature and circumstances of the offense and the history and char-
acteristics of the defendant," § 3553(a)(1), providing adequate deter-
rence, § 3553(a)(2)(B), protecting the public from further crimes,
§ 3553(a)(2)(C), and providing the defendant with training, medical
care, or treatment, § 3553(a)(2)(D). Furthermore, conditions must "in-
volve[ ] no greater deprivation of liberty than is reasonably necessary"
for achieving the specified goals, and they must be consistent with
Sentencing Commission policy statements on supervised release. 18
U.S.C. § 3583(d)(2) & (3).
Because district courts have broad latitude in the choice of condi-
tions on supervised release, we review the imposition of these condi-
tions for abuse of discretion. See United States v. Crandon, 173 F.3d
122, 127 (3rd Cir. 1999); United States v. Ritter, 118 F.3d 502, 504
(6th Cir. 1997); see also United States v. Wesley, 81 F.3d 482, 484
(4th Cir. 1996).
Music argues that because polygraph and plethysmograph evidence
is generally inadmissible, it must be inherently unreliable. He reasons
that inherently unreliable tests cannot be reasonably related to the
goals of supervised release and that assigning the tests as a condition
of supervised release is thus an abuse of discretion. He is correct that
our circuit takes a dim view of polygraph evidence. It is inadmissible
in nearly every circumstance at trial. See, e.g., United States v. Porter,
821 F.2d 968, 974 (4th Cir. 1987); United States v. Brevard, 739 F.2d
180, 182 (4th Cir. 1984). But see United States v. A.S. Council Oil
Co., 947 F.2d 1128, 1134-35 (4th Cir. 1991) (polygraph evidence
may be admitted to challenge credibility of expert who "must have
necessarily discounted" polygraph results). Our decisions holding
polygraph evidence to be inadmissible do not contain any detailed
analysis of whether the test is reliable. See, e.g., Brevard, 739 F.2d
at 182 (stating simply that "[e]vidence that the accused or a witness
has taken a polygraph test is inadmissible."). We do not seem to have
4 UNITED STATES v. MUSIC
considered, for example, whether there have been any improvements
in the technology. Rather, our decisions reflect an acceptance of a
general (and longstanding) rule against admissibility of polygraph
evidence. See generally 1 McCormick on Evidence (John W. Strong
ed., 5th ed. 1999) § 206.
Our court has given a bit more consideration to penile plethysmo-
graph evidence. In United States v. Powers, 59 F.3d 1460, 1471 (4th
Cir. 1995), we held that a district court did not abuse its discretion by
refusing to admit plethysmograph evidence offered by a criminal
defendant. Unlike what we have done in the polygraph area, we did
not announce in Powers a general rule that plethysmograph evidence
is inadmissible. Rather, we noted that the government had provided
unrebutted evidence that the test lacks "accepted standards in the sci-
entific community" and that the test is prone to producing false nega-
tives. Powers, 59 F.3d at 1471. We then concluded that the
government had established that the test is insufficiently reliable to
meet the "scientific validity" prong of Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579 (1993). Although it was not relevant to the
issue of admissibility, we noted that the government conceded that the
plethysmograph test is "useful for treatment of sex offenders." Pow-
ers, 59 F.3d at 1471. See also Pool v. McKune, 987 P.2d 1073, 1079
(Kan. 1999).
II.
A.
Music has not offered any evidence about the reliability or unreli-
ability of either the polygraph or the penile plethysmograph test. He
simply argues that because the tests are inadmissible for evidentiary
purposes, it follows that they are not sufficiently reliable to be used
as a condition of supervised release. We do not agree. The level of
reliability required for a test to reasonably relate to the goals of super-
vised release is not as high as the level of reliability required for
admissibility into evidence. Cf., e.g., Rudy-Glanzer ex rel Doe v.
Glanzer, 232 F.3d 1258, 1265-66 (9th Cir. 2000). In other words, a
test’s unfitness as evidence says nothing about its fitness for therapy,
monitoring, or investigation. We have recognized that police officers
may consider polygraph results in assessing whether there is probable
UNITED STATES v. MUSIC 5
cause to make an arrest. Gomez v. Atkins, 296 F.3d 253, 264 n.8 (4th
Cir. July 11, 2002). Likewise, in Powers we noted in dictum that there
is support for using penile plethysmography in the treatment and
monitoring of sex offenders. Powers, 59 F.3d at 1471 & n.13.
Because the inadmissibility of the polygraph and plethysmograph
tests for evidentiary purposes does not necessarily render them unreli-
able for treatment purposes, and because Music did not offer any evi-
dence that the tests were unreliable for use in treatment, the district
court did not abuse its discretion in allowing the use of the tests as
a condition of supervised release.
B.
Music argues in the alternative that even if polygraph and penile
plethysmograph testing are reasonably related to the goals of super-
vised release, they are unacceptable conditions because the results of
the testing may be used to revoke his release. The sentence, however,
makes the testing available as part of treatment, not as a program of
monitoring to ensure compliance with other conditions. If at some
point in the future Music is subjected to these tests and their results
are relied upon to revoke his supervised release, he will be free to
object at that time. For now, Music’s alternative objection is not well
taken.
Music’s sentence is affirmed.
AFFIRMED