United States v. Rhodes, Bruce J. ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-3953
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
B RUCE J. R HODES,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 07 CR 94—Barbara B. Crabb, Chief Judge.
A RGUED O CTOBER 23, 2008—D ECIDED JANUARY 13, 2009
Before B AUER, W OOD , and T INDER, Circuit Judges.
T INDER, Circuit Judge. Bruce Rhodes pled guilty to
knowingly possessing a computer hard drive con-
taining video depictions of a minor engaging in sexually
explicit conduct, in violation of 18 U.S.C. § 2252(a)(4). The
court sentenced Rhodes to a ten-year term of imprison-
ment followed by a life term of supervised release. The
court imposed several special conditions of supervised
release, and Rhodes now challenges just a portion of one
2 No. 07-3953
condition—penile plethysmograph testing (known as
“PPG” in medical circles)—which he finds particularly
invasive for reasons that will be evident when this proce-
dure is described below.
I. Background
In January 2007, Rhodes’s then-girlfriend reported to
police that she had discovered videos on Rhodes’s com-
puter that she thought contained child pornography. Police
obtained a warrant and seized Rhodes’s computer. Foren-
sic examination of the computer revealed pictures and
videos containing children engaged in sexually explicit
acts. Rhodes admitted to downloading and viewing child
pornography. A grand jury returned a single-count indict-
ment of knowingly possessing a computer hard drive
containing video depictions of a minor engaging in sexu-
ally explicit conduct, to which Rhodes pled guilty.
In sentencing Rhodes, the district court noted that
Rhodes had a prior conviction for third-degree sexual
assault. The conviction arose from his having sexual
intercourse with a thirteen-year-old girl, a charge to
which he pled no-contest in a Wisconsin state court in
2000. Based on that conviction, the court found that the
mandatory statutory enhancement under 18 U.S.C.
§ 2252(b)(2) applied, which set the minimum term of
imprisonment at ten years and the maximum at twenty
years. The court also calculated the advisory sentencing
range under the U.S. Sentencing Guidelines. Rhodes had
an offense level of 26 and a criminal history category of
IV, which placed him in the advisory range of 92 to 115
No. 07-3953 3
months’ imprisonment. The court noted that the statute
mandated a minimum sentence that was greater than the
advisory range and sentenced Rhodes to ten years’ impris-
onment, which was to run consecutively to the sentence
imposed in the Wisconsin state court for the violation of
his term of extended supervision. The imprisonment was
to be followed by a life term of supervised release
subject to the mandatory and standard conditions. See
U.S.S.G. § 5D1.3. The court also found that nine special
conditions were appropriate. The condition at issue
stated that Rhodes was to “undergo a psychosexual
evaluation and participate in an outpatient sex offender
counseling program if recommended by the evaluator
which may involve use of polygraph and plethysmograph
examinations.” Rhodes’s attorney made a brief and un-
adorned objection to this condition on general Fifth
Amendment grounds.
In explaining the propriety of the sentence, the court
expressed that, in light of Rhodes’s previous conviction,
his possession of more than 150 images and videos con-
taining child pornography suggested that he had a
“dangerous attraction to children.” The court noted that
his possession of a computer was in violation of a condi-
tion of his state supervision. He also previously had the
opportunity to participate in treatment while under state
supervision, but he admitted that his attitude had inter-
fered with treatment. The court found that his actions
created a risk that he would commit additional criminal
acts, placing the community—especially children—in
jeopardy. Rhodes now appeals the above-mentioned
special condition.
4 No. 07-3953
II. Discussion
Penile plethysmograph testing is a procedure that
“involves placing a pressure-sensitive device around a
man’s penis, presenting him with an array of sexually
stimulating images, and determining his level of sexual
attraction by measuring minute changes in his erectile
responses.” Jason R. Odeshoo, Of Penology and Perversity:
The Use of Penile Plethysmography on Convicted Child Sex
Offenders, 14 T EMP. P OL. & C IV. R TS. L. R EV. 1, 2 (2004). The
use of PPG testing “has become rather routine in adult
sexual offender treatment programs,” United States v.
Weber, 451 F.3d 552, 562 (9th Cir. 2006), and courts have
upheld conditions requiring offenders to undergo PPG
testing under various legal challenges. See Odeshoo, supra,
at 20 n.151-52 (collecting cases).
Though the use of PPG is not uncommon, experts
disagree as to its effectiveness. “The reliability and validity
of this procedure in clinical assessment have not been
well established, and clinical experience suggests that
subjects can simulate response by manipulating
mental images.” A M . P SYCHIATRIC A SS’N., D IAGNOSTIC AND
S TATISTICAL M ANUAL OF M ENTAL D ISORDERS 567 (4th ed.,
text revision 2000); see also Dean Tong, The Penile
Plethysmograph, Abel Assessment for Sexual Interest, and
MSI-II: Are They Speaking the Same Language?, 35 A M . J.
OF F AM . T HERAPY, 187, 190 (2007) (“The PPG, when ad-
ministered properly, represents a direct and objective
measurement of a man’s level of sexual arousal to normal
versus sexualized stimuli. Since there is a strong relation-
ship between an individual’s pattern of sexual arousal
No. 07-3953 5
and the probability that he may or will act upon that
arousal, an important first step in gauging one’s pro-
pensity to sexual deviancy is to obtain an accurate assess-
ment of that person’s sexual arousal patterns, which is
precisely what the PPG does.”); James M. Peters, Assess-
ment and Treatment of Sex Offenders: What Attorneys Need
to Know, A DVOCATE, Dec. 1999, at 23 (1999) (PPG “is
invaluable in the evaluation, treatment and management
of known sexual offenders.”); John Matthew Fabian, The
Risky Business of Conducting Risk Assessments for Those
Already Civilly Committed as Sexually Violent Predators, 32
W M . M ITCHELL L. R EV. 81, 101 (2005) (“[S]ome evaluators
believe that polygraph and [PPG] testing are unreliable
and invalid, and thus should be prohibited because such
data may lead to false positives, suggesting that an of-
fender will reoffend when he ultimately does not.”);
Odeshoo, supra, at 43 (“Why, given the fact that PPG
is more expensive, more time-consuming, more intrusive
and degrading, and not demonstrably more reliable
than the polygraph, would authorities nonetheless insist
that sex offenders submit to PPG examinations?”).
The district court imposed a special condition of super-
vised release that first requires a psychosexual evaluation,
which could then lead to mandatory participation in a
sex offender treatment program. As part of such a pro-
gram, Rhodes could be required to undergo polygraph
and PPG testing. Rhodes objected “for the record” on Fifth
Amendment grounds without elaboration. On appeal,
he argues that because PPG testing implicates a
significant liberty interest, the district court should be
required to state that the condition “involves no greater
6 No. 07-3953
deprivation of liberty than is reasonably necessary.” 18
U.S.C. § 3583(d)(2). Rhodes concedes that our standard
of review at this stage is from the narrow perspective of
plain error because he did not object to the condition on
the same grounds that he raises in this appeal. United
States v. Schalk, 515 F.3d 768, 776 (7th Cir. 2008).
A district court has the discretion to impose special
conditions of supervised release if the condition: (1) is
reasonably related to the nature and circumstances of the
offense, the history and characteristics of the defendant,
and the need to provide adequate deterrence to criminal
conduct, protect the public, and rehabilitate the
defendant; (2) involves no greater deprivation of liberty
than is reasonably necessary for the purposes of deter-
rence, public protection, and rehabilitation; and (3) is
consistent with any pertinent policy statements issued by
the Sentencing Commission. 18 U.S.C. §§ 3553(a), 3583(d).
When crafting a defendant’s sentence, the district court is
not required to address each factor “in checklist fashion,
explicitly articulating its conclusion for each factor,” as
long as the court’s statement of reasons is adequate and
consistent with the factors. United States v. Panaigua-
Verdugo, 537 F.3d 722, 728 (7th Cir. 2008). Because PPG
testing is mentally and physically intrusive, Rhodes
urges us to follow the Ninth Circuit’s approach in
United States v. Weber, 451 F.3d 552 (9th Cir. 2006) and
require the district court to state precisely why the PPG
testing is no greater deprivation of liberty than is reason-
ably necessary. In determining that a special procedure
is warranted before PPG testing can be imposed, the
Ninth Circuit noted that a number of less intrusive alter-
No. 07-3953 7
natives exist for treating sex offenders. Id. at 567-68.
The court declined to say “categorically that . . .
plethysmograph testing can never reasonably promote at
least one, if not all three, of the relevant goals laid out in
§ 3553(a)(2)—namely, deterrence, public protection, and
rehabilitation.” Id. at 566.
The government, on the other hand, asks that we
follow the Sixth Circuit’s approach in United States v.
Lee, 502 F.3d 447 (6th Cir. 2007) and dismiss the claim as
unripe. In Lee, the district court imposed the condition
that upon release, the defendant “must participate in a
specialized sex offender treatment program that may
include the use of plethysmograph or polygraph.” Id. at
449. The Sixth Circuit held the claim was not ripe for
two reasons. First, the condition only potentially re-
quired the defendant to have PPG testing. Id. at 450. The
defendant would not be released from prison for
fourteen years, and the court could not predict whether
the probation office would, in fact, find the testing neces-
sary for the defendant’s treatment at that time. Id.
“[G]iven that the occasion may never arise, Lee’s con-
tention that he will actually be subject to penile
plethysmograph testing is mere conjecture.” Id. Second,
the court noted that it was unclear whether PPG testing
would still be used for evaluation or treatment by the
time the defendant was released from prison, since PPG
testing “implicates significant liberty interests, and
further, its reliability is questionable.” Id.
We find the Sixth Circuit’s reasoning persuasive and
consistent with our approach in United States v. Schoenborn,
8 No. 07-3953
4 F.3d 1424 (7th Cir. 1993). In Schoenborn, the defendant
was sentenced to imprisonment for five years, the
statutory maximum term, followed by supervised release
for three years, also the statutory maximum term. The
defendant argued that any violation of his supervised
release, “say for missing an appointment with his proba-
tion officer or for drinking a beer,” could result in addi-
tional jail time exceeding the statutory maximum. Id. at
1434. We held that the claim was not ripe. Id. “One
who invokes the jurisdiction of a federal court must
establish, before all else, that he has suffered a concrete
and particularized injury; a conjectural one will not do.” Id.
As in Lee and Schoenborn, Rhodes’s claim is based on a
number of contingencies. He was sentenced to ten years
of imprisonment, consecutive to the term imposed by
the state court due to Rhodes’s violation of extended
supervision for his 2000 conviction. His term of super-
vision will begin only after his release from imprison-
ment (which could not be sooner than eight and one-half
years after he enters the federal prison system upon the
completion of his Wisconsin sentence, assuming that he
gains full credit for satisfactory behavior pursuant to
18 U.S.C. § 3624(b)). Only then could an evaluator recom-
mend that he participate in an outpatient sex offender
counseling program. And even if the evaluator were to
recommend a treatment program, PPG testing will not
necessarily be required. Perhaps the counselor and the
Probation Officer responsible for this case may determine
that testing would not be efficient, effective, economical,
or necessary, or perhaps they would be satisfied with
polygraph testing alone, which is not unusual. As the
No. 07-3953 9
condition is stated, there is a fair amount of discretion
regarding the techniques to be utilized. In the meantime,
the development of science or the law may render the
PPG testing irrelevant or even illegal, or maybe the move-
ment will be in a different direction altogether—a lot can
happen in the better part of a decade. Were we to
instead move at this time to follow Weber and hold that
the district court had to state why PPG was preferable to
less intrusive methods for this particular defendant, we
would be addressing a question full of contingency and
abstraction founded in an evolving scientific field, perhaps
to the detriment of the defendant’s rehabilitation—and
doing so with an undeveloped trial court record. Experts
already disagree as to which evaluation and treatment
methods are the most effective, and we would do well to
await a more concrete presentation of this issue.
Regardless, Rhodes can later petition the district court to
modify the condition. Lee, 502 F.3d at 451; 18 U.S.C.
§ 3583(e)(2); see also Fed. R. Crim. P. 32.1(c). Through
such a petition, he could initially present the district court
with the up-to-date scientific and legal criticisms of PPG,
rather than saving such a presentation for an appellate
brief. We acknowledge Rhodes’s concern, as he colorfully
describes it, that if the district court created a condition
that he go over Niagara Falls in a barrel, he should be
permitted to challenge it before he plummets over the
edge. Indeed, if Rhodes were to be ordered to undergo
PPG testing, he could be faced with undergoing the
testing (or the alternative of violating the condition of
supervised release) before his request to modify was
considered by the district court. We think under those
10 No. 07-3953
circumstances, Rhodes should be permitted to have the
district court consider his request to modify the condition
before he is required to undergo the testing. But he is
nowhere near such a crest in the supervised release
process.
This is not to say that a defendant can never
immediately appeal a condition of supervised release
after sentencing. We have entertained such appeals on
countless occasions. A few examples—in United States v.
Ross, 475 F.3d 871, 875 (7th Cir. 2007), we considered a
defendant’s appeal of a supervised release condition
that he participate in sex offender evaluation and treat-
ment. In United States v. Holm, 326 F.3d 872, 877 (7th
Cir. 2003), we addressed a defendant’s appeal of a super-
vised release condition prohibiting him from using the
Internet entirely. In United States v. Paul, 542 F.3d 596,
600-01 (7th Cir. 2008), we considered a defendant’s
appeal of a supervised release condition that he submit to
drug testing. In United States v. Schave, 186 F.3d 839, 841-43
(7th Cir. 1999), we considered the defendant’s appeal of
supervised release conditions prohibiting him from
drinking alcohol and associating with white supremacy
groups.
In each of these cases, the defendant was sentenced
to several years’ imprisonment before the challenged
terms of supervision commenced, yet we analyzed the
propriety of the challenged supervised release condi-
tions at the front end of those sentences. The conditions
in each of those cases were determinate, however: Ross
was required to participate in sex offender evaluation
No. 07-3953 11
and treatment, Paul was subject to drug testing, Schave
could not drink alcohol or associate with white
supremacy groups, and Holm could not use the Internet—
all with unqualified certainty. Rhodes, on the other hand,
may only be affected by the condition after a string of
contingencies—he must complete his prison terms, his
evaluator must recommend that he undergo a sex
offender counseling program, and the program must
include PPG testing. Therein lies the difference.
III. Conclusion
Because Rhodes’s special condition will only become
effective after he serves more than ten years’ imprisonment
and several other conditions are met, we DISMISS his
claim without prejudice as unripe.
1-13-09