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United States v. Whittler

United States District Court, N.D. Illinois, Eastern Division

November 5, 2019

UNITED STATES OF AMERICA
v.
BRUCE WHITTLER, Defendant.

          OPINION AND ORDER

          SARA L. ELLIS, UNITED STATES DISTRICT JUDGE

         After 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.

         BACKGROUND

         On July 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 evaluation.

         On 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.

         ANALYSIS

         Although 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).

         The 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).

         In 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 condition:

(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 Sentencing Commission.

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 § 5D1.3(b).

         The 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 ...


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