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United States v. Rhodes

January 13, 2009


Appeal from the United States District Court for the Western District of Wisconsin. No. 07 CR 94-Barbara B. Crabb, Chief Judge.

The opinion of the court was delivered by: Tinder, Circuit Judge.


Before BAUER, WOOD, and TINDER, Circuit Judges.

Bruce Rhodes pled guilty to knowingly possessing a computer hard drive containing 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 imprisonment 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 condition-penile plethysmograph testing (known as "PPG" in medical circles)-which he finds particularly invasive for reasons that will be evident when this procedure is described below.

I. Background

In January 2007, Rhodes's then-girlfriend reported to police that she had discovered videos on Rhodes's computer that she thought contained child pornography. Police obtained a warrant and seized Rhodes's computer. Forensic 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 indictment of knowingly possessing a computer hard drive containing video depictions of a minor engaging in sexually 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 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' imprisonment, 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 containing 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 condition 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 interfered 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.

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 TEMP. POL. & CIV. RTS. L. REV. 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." AM. PSYCHIATRIC ASS'N., DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 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 AM. J. OF FAM. THERAPY, 187, 190 (2007) ("The PPG, when administered 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 and the probability that he may or will act upon that arousal, an important first step in gauging one's propensity to sexual deviancy is to obtain an accurate assessment of that person's sexual arousal patterns, which is precisely what the PPG does."); James M. Peters, Assessment and Treatment of Sex Offenders: What Attorneys Need to Know, ADVOCATE, 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 WM. MITCHELL L. REV. 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 offender 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 supervised 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 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. PanaiguaVerdugo, 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 reasonably 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 alternatives 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 required 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 necessary for the defendant's treatment at that time. Id. "[G]iven that the occasion may never arise, Lee's contention that he will actually be subject to penile plethysmograph testing is mere conjecture." Id. Second, the court noted that it was ...

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