United States v. Conrad Smith, Jr. ( 2023 )

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-6632
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CONRAD ALEX SMITH, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. T. S. Ellis, III, Senior District Judge. (1:08-cr-00011-TSE-1)
Submitted: February 9, 2023 Decided: April 24, 2023
Before NIEMEYER and KING, Circuit Judges, and MOTZ, Senior Circuit Judge.
Affirmed by unpublished opinion. Judge Niemeyer wrote the opinion, in which Judge
King and Judge Motz joined.
ON BRIEF: Ryan P. Campbell, KING, CAMPBELL, PORETZ & MITCHELL, PLLC,
Alexandria, Virginia, for Appellant. Raj Parekh, Acting United States Attorney, Lauren
Halper, Assistant United States Attorney, Alexandria, Virginia, Aidan Taft Grano-
Mickelsen, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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NIEMEYER, Circuit Judge:
Conrad Smith, who had been convicted in 2008 of possessing child pornography,
filed a motion in the district court to modify some conditions of his supervised release in
view of changed circumstances. The district court granted his motion in part, although it
extended the requirement that Smith submit to polygraphs, which had been originally
ordered in connection with his “mental health treatment,” to a requirement that he submit
to polygraphs that are “sharply focused on [his] activities and behavior relevant to [his]
attempted use or possession of pornography or child pornography.” Smith appeals that
particular modification in the district court’s order, challenging the district court’s
“authority” to do so and contending that the court abused its discretion because “the
modification was not specifically tied to any change in circumstances from the original
sentencing.” To support his position, however, Smith provides no relevant authority to
demonstrate that the district court exceeded its authority or abused its discretion.
In view of the authority given the district court by 18 U.S.C. § 3563(c) and
§ 3583(e), and the district court’s focused order made in light of Smith’s motion and
changed circumstances, we affirm.
On January 9, 2008, Smith pleaded guilty to possession of child pornography, in
violation of 18 U.S.C. § 2252A(a)(5)(B). In the statement of facts to which he agreed in
connection with his guilty plea, Smith admitted to possessing between 150 and 300 images
of child pornography. The images included depictions of both prepubescent girls and girls
older than 12 but younger than 18, who were engaged in sexually explicit conduct. There
were also depictions from the “Angeli” series, which depicted sexually explicit conduct
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involving a known victim between the ages of 5 and 10. Finally, they included self-
produced image and video files depicting a 15-year-old girl engaged in sexually explicit
conduct both alone and with Smith when he was 20 years old. Following his guilty plea,
the district court sentenced Smith to 51 months’ imprisonment, followed by 20 years’
supervised release. As a condition of his supervised release, Smith was required to
participate in “a program of mental health treatment, including psychosexual testing and
treatment, polygraph and penile plethysmograph testing, as directed by the Probation
Officer.” (Emphasis added).
After Smith served the term of imprisonment and while he was on supervised
release, the probation officer charged Smith in March 2014 with violating the conditions
of supervised release by (1) failing to follow the instructions of his probation officer;
(2) possessing pornography; (3) violating his sex offender treatment contract; and
(4) accessing online computer services. In April 2014, Smith was found in violation and
he was ordered to serve 12 weekends in jail, but the existing conditions of his supervised
release remained in effect.
In December 2015, the probation officer again charged Smith with violating the
conditions of his supervised release by failing to comply with his treatment program. In
response to the charge, the district court deferred ruling and imposed interim conditions,
including GPS tracking and participation in therapy. Once Smith satisfied those conditions
and passed a polygraph, the district court dismissed the 2015 petition.
Finally, in February 2020, Smith successfully completed his sex offender treatment.
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Smith filed this motion on March 2, 2021, to clarify the conditions of his supervised
release or to modify them in light of the fact that he had completed his sex offender
treatment and had a new wife and step-children with whom he wished to reside. In his
motion he sought for the court “to instruct the Office of Probation” (1) “that [he] shall not
be compelled to undergo a polygraph examination that is not part of sex-offender
treatment”; (2) “that [he] be permitted to reside with his [new] wife and step-children under
certain conditions”; and (3) “that [he] be granted access to his treatment records.”
The district court conducted a hearing on Smith’s motion, and by order dated April
5, 2021, granted it in part and denied it in part. First, the court ordered that Smith be
“permitted to reside with his wife and step-children,” provided that he enter into a “safety
contract” with the probation officer setting forth the conditions. The order provided that
Smith had to comply with the terms of the safety contract and that he was not permitted to
have “any unsupervised contact with his step-children.” Second, the district court granted
Smith access to his medical records. Third, and finally, the district court denied Smith’s
request to be relieved from all further polygraph examinations during the remainder of his
supervised release. Instead, the court ordered that Smith continue to submit to polygraph
examinations, as requested by the probation officer, and that the examinations “be sharply
focused on [Smith’s] activities and behavior relevant to [his] attempted use or possession
of pornography or child pornography.” In its order, the court explained the reason for
denying this aspect of Smith’s motion, which had been discussed at greater length during
the hearing:
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This requirement is necessary given the condition of supervised release that
defendant shall not possess pornography of any type. Because the possession
and use of pornography and child pornography tend to be clandestine in
nature, polygraph examinations are necessary to ensure defendant’s
compliance with this condition of supervised release.
Smith filed this appeal, challenging only the portion of the district court’s order
continuing the requirement of polygraph examinations.
First, as to the district court’s authority to modify the terms of supervised release,
18 U.S.C. § 3583(e)(2) provides that, in relation to the sentencing factors of § 3553(a),
“[t]he court may . . . modify, reduce, or enlarge the conditions of supervised release, at any
time prior to the expiration or termination of the term of supervised release.” Moreover,
requiring polygraphs as a condition of supervised release is routinely done. See, e.g.,
United States v. Dotson, 324 F.3d 256, 261 (4th Cir. 2003); see also United States v. Begay,
631 F.3d 1168, 1175 (10th Cir. 2011) (citing United States v. Johnson, 446 F.3d 272, 277–
78 (2d Cir. 2006); United States v. Metzener, 584 F.3d 928, 931 (10th Cir. 2009); United
States v. Zinn, 321 F.3d 1084, 1090 (11th Cir. 2003); United States v. Lee, 315 F.3d 206,
217 (3d Cir. 2003)). Of course, any condition of supervised release must be “reasonably
related” to specified § 3553(a) factors; must involve “no greater deprivation of liberty than
is reasonably necessary for the purposes” of those sentencing factors; and must be
consistent with pertinent policy statements of the Sentencing Guidelines. 18 U.S.C.
§ 3583(d)(1)–(3). But at bottom, it is clear that the district court had the authority to require
polygraphs as a condition of supervised release, so long as the polygraphs furthered
relevant § 3553(a) factors, which they clearly did here.
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As to the appropriateness of the court’s exercise of discretion, the court not only
acted well within its discretion, but it also explicitly gave reasons for imposing the
polygraph condition in this case. Smith had admitted in his guilty plea to possession of a
large number of images of child pornography; he had violated his conditions of supervised
release by continuing his involvement with pornography; and he had been charged with
failing to comply with sex offender treatment conditions. Moreover, he was proposing to
live with his new wife who had two young children. In this overall context, the court well
recognized that the possession of child pornography tended to be “clandestine in nature,”
and therefore, to assure Smith’s compliance with the prohibition against the possession and
use of child pornography, the court imposed the requirement of polygraph examinations,
albeit ones that are to be “sharply focused” on Smith’s “attempted use or possession of
pornography or child pornography.” In entering this order, we find no abuse of discretion.
Accordingly, the district court’s order dated April 5, 2021, is
AFFIRMED.
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