United States v. Randall Herbst ( 2022 )

United States Court of Appeals
For the Eighth Circuit
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No. 21-2768
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United States of America
Plaintiff - Appellee
v.
Randall Allen Herbst
Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Eastern
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Submitted: April 13, 2022
Filed: July 21, 2022
[Unpublished]
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Before SHEPHERD, ERICKSON, and STRAS, Circuit Judges.
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PER CURIAM.
Randall Allen Herbst is on supervised release in connection with his
conviction for attempted enticement of a minor to engage in unlawful sexual activity,
in violation of 18 U.S.C. § 2422(b). Herbst’s original terms of supervised release
included a provision permitting a polygraph examination as part of his sex offender
treatment program. During a June 2020 pre-polygraph interview, Herbst disclosed
a previous heart bypass surgery, which required a medical release prior to
polygraphing. A physician was unwilling to provide an opinion about Herbst’s
fitness to participate in polygraph examinations due to his cardiovascular issues,
citing a lack of experience with polygraphs. The district court 1 modified Herbst’s
supervised release condition to allow Computerized Voice Stress Analyzer
(“CVSA”)2 examinations in lieu of the polygraphs. Herbst challenges the
modification, arguing CVSA testing does not reasonably relate to the 18 U.S.C.
§ 3583(e) factors due to its inaccuracy.
District courts have broad discretion to modify conditions of supervised
release. United States v. Trimble, 969 F.3d 853, 856 (8th Cir. 2020). We review a
modification of a supervised release condition for abuse of discretion. United States
v. Newell, 915 F.3d 587, 589 (8th Cir. 2019).
The Second Circuit is the only federal circuit to have specifically addressed
the propriety of CVSA examinations as a condition of supervised release. It upheld
the use of such examinations on the ground that the testing may further the
sentencing objectives of rehabilitation and deterrence. United States v. Parisi, 821
F.3d 343, 349 (2d Cir. 2016) (per curiam); see United States v. Maggese, 785 F.
App’x 879, 881-82 (2d Cir. 2019) (observing that CVSA’s purported unreliability
did not preclude the district court from finding it is reasonably related to the
sentencing factors). We have adopted similar reasoning in upholding polygraph
examinations generally. See United States v. Smith, 960 F.3d 1107, 1110 (8th Cir.
2020) (explaining polygraph testing need not be proven, legitimized, or validated as
an effective tool when used for treatment).
1
The Honorable John A. Jarvey, then Chief Judge, United States District Court
for the Southern District of Iowa, now retired.
2
CVSA is a type of polygraph that reports whether a person’s answers to
“questions are ‘deceptive’ or ‘not deceptive.’” Woods v. Ark. Dep’t of Corr., 329
F. App’x 688, 691 n.3 (8th Cir. 2009) (unpublished per curiam).
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Because Herbst’s medical condition prevented him from participating in a sex
offender treatment program with polygraph examinations, the district court
reasonably concluded that CVSA was an alternative that created similar candor
incentives. The condition was reasonably related to the pertinent 18 U.S.C.
§ 3553(a) factors, specifically including the nature of the offense, the need to protect
the public, and the need to provide appropriate correctional treatment. The
modification here involves no greater deprivation of liberty than is reasonably
necessary and supports the Sentencing Commission’s policy that sex offenders
participate in a program approved by probation for treatment and monitoring. See
U.S.S.G. § 5D1.3(d)(7); Smith, 960 F.3d at 1110. We find no abuse of discretion in
modifying the special condition to permit CVSA examinations.
We affirm the judgment of the district court.
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