United States District Court, N.D. Illinois, Eastern Division
OPINION AND ORDER
L. ELLIS, UNITED STATES DISTRICT JUDGE
pleading guilty to conspiracy to possess with intent to
distribute and to distribute a controlled substance, and
following his release from prison and the beginning of his
term of supervised release for possession, Defendant Bruce
Whittler now moves to amend the conditions of his supervised
release to strike the requirement that he submit to a
polygraph test regarding his sexual history and sex-offender
treatment as a violation of his Fifth Amendment right against
self-incrimination. Because this condition is not reasonably
related to the offense of conviction, and Whittler's
sexual misconduct is too remote for such a condition to serve
the interests of deterrence, rehabilitation, or protection of
the public, the Court grants Whittler's motion.
16, 2012, Judge St. Eve sentenced Whittler to 92 months in
prison after he pleaded guilty to one count of conspiracy to
possess with intent to distribute and to distribute 50 grams
or more of cocaine. Prior to this conviction, Whittler
pleaded guilty in 1998 in state court to one count of
predatory criminal sexual assault. As a result, Whittler is a
registered sex offender. Part of Whittler's conditions of
supervised release in this case included participation in a
sex-offender treatment program, if deemed necessary after an
January 5, 2018, Whittler completed his term of imprisonment
and began his supervised release. On August 10, 2018, this
case was reassigned to this Court. A few days later, the
Probation Officer filed a report advising the Court that
Whittler had completed the psychosexual evaluation, which
included interviews, two polygraph assessments, and a sexual
interest assessment, but was refusing to comply with the
treatment services plan, which included weekly sex-offender
treatment readiness groups and quarterly polygraph
assessments. The Court ordered Whittler to participate in
individual therapy for three months to reevaluate the need
for sex-offender treatment as part of his supervised release.
On February 25, 2019, the Probation Officer filed a report
from Whittler's therapist in which the therapist was
unable to provide the Court with a clinical recommendation as
to Whittler's risk of re-offending. The therapist
recommended that the Court order Whittler to: “(1)
complete a detailed sexual history from age 21 to the
present; (2) submit to a sexual history polygraph testing the
veracity of his self-reported sexual history; and (3)
continue weekly individual therapy sessions focusing on the
dynamic risk factors relevant to his current
functioning.” Doc. 121 at 6. On February 27, 2019, the
Court ordered Whittler to complete the report and polygraph
to accurately assess his risk. Whittler now moves to amend
his conditions of supervised release to eliminate the
sex-offender treatment and quarterly polygraphs.
the parties focus their arguments on this condition's
potential violation of Whittler's Fifth Amendment rights,
the Court finds a fundamental problem with this condition: it
is not rationally related to the offense of conviction.
Regarding conditions of supervised release, 18 U.S.C. §
3583(d) requires that they “be no greater a deprivation
of liberty than reasonably necessary and bear a
reasonable relationship to the particular circumstances of
the case.” United States v. Silvious, 512
F.3d 364, 370-71 (7th Cir. 2008) (emphasis added) (finding
district court erred-though it did not amount to plain
error-in imposing ban on gambling and internet access without
relating conditions to the circumstances of the case).
Seventh Circuit has repeatedly affirmed that district courts
can easily modify conditions of release “at any time
prior to the expiration or termination of the term of
supervised release.” United States v. Tejeda,
476 F.3d 471, 475-76 (7th Cir. 2007) (citing 18 U.S.C. §
3583(e)(2) and noting “[t]he ease with which” a
district judge can modify conditions of release);
Silvious, 512 F.3d at 371 (“[C]onditions of
supervised release are readily modifiable at the
defendant's request.”); United States v.
Bour, 804 F.3d 880, 887 (7th Cir. 2015)
(“Silvious . . . encourages defendants to
begin by asking district courts to modify conditions of
release”). “[J]ust as a district court has wide
discretion when imposing the terms of supervised release . .
. so too must it have wide discretion in modifying the terms
of that supervised release.” United States v.
Sines, 303 F.3d 793, 800 (7th Cir. 2002).
determining whether to modify Whittler's conditions of
supervised release, the Court must consider the same factors
that were considered in imposing those conditions.
Specifically, the Court must ensure that the particular
(1) is reasonably related to specified sentencing factors,
namely the nature and circumstances of the offense and the
history and characteristics of the defendant;
(2) is reasonably related to the need to afford adequate
deterrence, to protect the public from further crimes of the
defendant, and to provide the defendant with needed
educational or vocational training, medical care, or other
correctional treatment in the most effective manner;
(3) involves no greater deprivation of liberty than is
reasonably necessary to achieve these goals; and (4) is
consistent with any pertinent policy statements issued by the
United States v. Neal, 662 F.3d 936, 938 (7th Cir.
2011); 18 U.S.C. §§ 3583(d), 3553(a)(1),
(a)(2)(B)-(D); U.S. Sentencing Guidelines Manual §
Court finds neither evidence nor argument that this condition
of supervised release is reasonably related to the nature and
circumstances of the offense of conviction in this case.
There is no indication in the indictment, in the plea
agreement, in either of the sentencing memoranda, or anywhere
else in the record of this case that ...