United States v. Andrew Spallek , 934 F.3d 822 ( 2019 )


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  •   United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 18-3113
    ___________________________
    United States of America,
    lllllllllllllllllllllPlaintiff - Appellee,
    v.
    Andrew Spallek,
    lllllllllllllllllllllDefendant - Appellant.
    ___________________________
    No. 18-3114
    ___________________________
    United States of America,
    lllllllllllllllllllllPlaintiff - Appellee,
    v.
    Andrew Spallek,
    lllllllllllllllllllllDefendant - Appellant.
    ____________
    Appeals from United States District Court
    for the Eastern District of Missouri - Cape Girardeau
    ____________
    Submitted: April 18, 2019
    Filed: August 19, 2019
    ____________
    Before COLLOTON, GRUENDER, and ERICKSON, Circuit Judges.
    ____________
    COLLOTON, Circuit Judge.
    Andrew Spallek appeals the imposition of a special condition of supervised
    release in two criminal cases. The condition forbids him, with one exception, to use
    a computer or the internet without the permission of the probation office. The district
    court1 imposed the special condition in two separate judgments. One judgment
    sentenced Spallek for transporting lewd and lascivious material; the other imposed
    sentence after a revocation of supervised release that was imposed on a prior
    conviction for possession of child pornography. We conclude that the court did not
    abuse its discretion in fashioning the conditions of supervised release, so we affirm
    the judgments.
    Spallek was first convicted in 2010 of possessing child pornography. See 18
    U.S.C. § 2252A(a)(5)(B). At that time, evidence showed that Spallek was a
    “member” of a private members-only website dedicated to child pornography and
    erotica. He downloaded videos and photographs of minor children engaged in
    sexually explicit conduct, and admitted that he had been viewing child pornography
    for ten years. The district court sentenced him to thirty-seven months’ imprisonment
    and a life term of supervised release.
    1
    The Honorable John A. Ross, United States District Judge for the Eastern
    District of Missouri.
    -2-
    Spallek was released from prison in January 2013. One of the special
    conditions of his supervised release prohibited possessing a computer or accessing the
    internet without prior approval from the probation office. Spallek petitioned the court
    in 2014 to modify the condition so that he could access the internet to assist with
    writing a novel. The court eventually denied the motion without prejudice after the
    parties agreed to resolve the matter informally. The probation office proposed a plan
    to provide Spallek some access to the internet, but Spallek rejected the plan as too
    restrictive, and the conditions of release were not modified.
    The present case arises from Spallek’s use of a public computer at a job center
    in April 2017. A forensic search of the computer revealed that Spallek had accessed
    websites associated with child erotica, and conducted internet searches for “girls
    soccer nude,” “preschool girls nude,” “nudist kids,” “naughty kid spycam,” “sleepover
    naked,” “preteen nudity,” “accidental nudism kids,” and “preteen.”
    Based on this conduct, the government moved to revoke Spallek’s supervised
    release from the first case, and a grand jury charged him with a new offense. Spallek
    admitted to violating conditions of supervised release, and, pursuant to a plea
    agreement, pleaded guilty to transportation of lewd and lascivious material. See 18
    U.S.C. § 1462(a).
    The district court revoked Spallek’s supervised release, accepted his guilty plea
    to the new offense, and sentenced him to thirty-seven months’ imprisonment and a life
    term of supervised release on the new offense, plus a consecutive four months of
    imprisonment and a life term of supervised release for the revocation. In both cases,
    the court imposed a special condition of supervised release that Spallek may not use
    a computer or access the internet without permission of the probation office, except
    that he may have access to a word processor after the probation office verifies that the
    device cannot connect to the internet. We review the court’s imposition of this special
    -3-
    condition for abuse of discretion. See United States v. Deatherage, 
    682 F.3d 755
    , 757
    (8th Cir. 2012).
    A district court has broad discretion to impose special conditions of supervised
    release, so long as each condition complies with the requirements set forth in 18
    U.S.C. § 3583(d). 
    Id. at 758.
    Section 3583(d) requires that the conditions be
    “reasonably related” to certain § 3553(a) factors, “involve[] no greater deprivation of
    liberty than is reasonably necessary for the purposes” enumerated in those provisions
    of § 3553(a), and be consistent with policy statements issued by the Sentencing
    Commission. 18 U.S.C. § 3583(d).
    The totality of the circumstances justifies the condition here. Although
    Spallek’s offenses involved possessing child pornography and “transporting” lewd
    and lascivious materials for his own use, as opposed to distributing them to others,
    possession and receipt are still serious offenses that victimize the children depicted,
    and they can justify internet restrictions in appropriate circumstances. See United
    States v. Morais, 
    670 F.3d 889
    , 896-97 (8th Cir. 2012). Spallek already had
    demonstrated his incorrigibility by using the job center computer to seek child
    pornography, thus heightening the need for adequate deterrence and protection of the
    public. See 18 U.S.C. § 3553(a)(2)(B)-(C). Even so, the district court did not impose
    a total ban on use of computers or access to the internet. Spallek may use a word
    processor for writing, once lack of internet connectivity is verified by the probation
    office. If he has a legitimate need to access the internet, then he may seek permission
    from the probation office, which remains subject to supervision by the court. In light
    of Spallek’s offense conduct and history on supervision, imposition of the special
    condition was not abuse of discretion.
    The judgments of the district court are affirmed.
    ______________________________
    -4-
    

Document Info

Docket Number: 18-3113; 18-3114

Citation Numbers: 934 F.3d 822

Judges: Colloton, Gruender, Erickson

Filed Date: 8/19/2019

Precedential Status: Precedential

Modified Date: 10/19/2024