UNITED STATES v. BALLARD (2023)

ORDER

This matter is before the court on respondent's objections to petitioner's proposed conditional release plan (DE 363). The issues raised have been briefed fully and are ripe for ruling. For the following reasons, the objections are overruled in part and sustained in part.

BACKGROUND

In 2014, the court found respondent was a sexually dangerous person and civilly committed him to the custody of the attorney general pursuant to the Adam Walsh Child Protection and Safety Act. See 18 U.S.C. § 4248. Respondent moved for discharge hearing in 2022, alleging he is no longer sexually dangerous to others, or would not be sexually dangerous if released under a prescribed regimen of medical, psychiatric, or psychological care or treatment. The court granted the request for hearing, and following a lengthy period of pre-hearing discovery and other proceedings, two-day hearing convened on April 26, 2023.

On July 18, 2023, the court entered detailed order finding respondent established by a preponderance of the evidence that he would not be sexually dangerous to others if released under a prescribed regimen of medical, psychiatric, or psychological care or treatment. The court denied respondent's request for unconditional release in light of his extensive history of molesting or attempting to molest children, the fact that he only recently began sex offender treatment, and concerns about his motivation for treatment going forward. As explained in the July 18 order:

[Respondent's treatment progress and other factors supporting release] do[ ] not mean ․ that respondent is ready for unconditional release. The risk factors that Dr. [Patrick] Cook and Dr. [Justin] Rigsbee [testified to] remain present, and respondent has not otherwise shown that he would not be sexually dangerous if released unconditionally. The court adopts and relies on the opinion of Dr. Rigsbee to the extent he testified that respondent should only be released on conditions. Such conditions are required where respondent only recently began treatment, the record reveals concerns about his motivation for treatment going forward, he has an extensive history of acting on pedophilic urges in the community, and after considering the remaining dynamic risk factors identify by Dr. Rigsbee. See [United States v. Wooden, 693 F.3d 440, 462 (4th Cir. 2012)]; (Pet'r Ex. 5 at 20–25). In addition, and in light of respondent's testimony that he wishes to access the internet upon discharge from commitment, conditional release will allow United States probation to monitor internet use for inappropriate contact with children or other problematic behavior, assuming monitored internet use is allowed by the terms of the forthcoming conditional release order or the probation officer. Such monitoring will serve as an added protective factor in this case where respondent's offense history involves internet solicitation of a fictitious minor for sex and respondent's prior internet searches for risk-relevant material.

(DE 360 at 14–15 (footnote omitted)). The court therefore found that respondent “cannot be discharged safely to the community without proper safeguards and a period of monitoring by United States probation.” (Id. at 15). As a result, respondent's release was subject to the “terms set forth” in the July 18 order and the court stayed release pending approval of a conditional release plan. (Id. at 1, 16).

Petitioner submitted its proposed conditional release plan (the “plan”) for court approval on September 22, 2023. The plan was developed in consultation with Federal Bureau of Prisons social work staff and United States Probation for the Central District of California. The plan includes 42 conditions of release that require, inter alia, sex offender treatment, extensive monitoring of respondent's behavior in the community, and restrictions on his ability to travel, access the internet, and have contact with minors.

That same day, respondent filed the instant objections to the plan. Therein, respondent argues that the court lacks legal authority to order conditional release under the plan where the majority of the conditions allegedly do not fall within a “prescribed regimen of medical, psychiatric, or psychological care or treatment.” (DE 363 at 1). Instead, respondent asserts that the only condition authorized under 18 U.S.C. § 4248(e) is the condition requiring respondent attend an outpatient sex offender treatment program. Respondent further asserts the court lacks authority to direct respondent to pay for various costs associated with conditional release, such as for polygraph testing, sex offender and other forms of treatment, and computer monitoring. Finally, respondent asserts objections to specific conditions on grounds that they are not valid components of a psychological treatment plan, are unduly vague or overly broad, lack evidentiary support in the record, and related objections.

Petitioner responded in opposition to the objections, arguing that the court retains authority to order conditional release under the plan, that requiring respondent to pay the costs is a valid ancillary condition of release, and that respondent's objections to specific conditions are without merit. Respondent replied in further support of the objections, relying upon the same arguments summarized above and asserting for the first time that each release condition must be explained.

COURT'S DISCUSSION

A. Court's Authority to Impose Non-treatment Conditions

Respondent's threshold argument is that the court lacks authority to impose conditions of release that are not part of a prescribed treatment regimen. Pursuant to 18 U.S.C. § 4248(e), the court may discharge individuals civilly committed as sexually dangerous upon finding by a preponderance of the evidence that the person “will not be sexually dangerous to others if released under a prescribed regimen of medical, psychiatric, or psychological care or treatment.” If the court makes that finding, the court shall

(A) order that [the respondent] be conditionally discharged under a prescribed regimen of medical, psychiatric, or psychological care or treatment that has been prepared for him, that has been certified to the court as appropriate by the Director of the facility in which he is committed, and that has been found by the court to be appropriate; and

(B) order, as an explicit condition of release, that he comply with the prescribed regimen of medical, psychiatric, or psychological care or treatment.

18 U.S.C. § 4248(e)(2)(A)-(B).¹ In addition, the court “at any time may, after a hearing ․ modify or eliminate the regimen of medical, psychiatric, or psychological care or treatment.” Id. § 4248(e). Conditional release also may be revoked if the respondent fails to comply with the treatment regimen and the court finds “that he is sexually dangerous to others in light of his failure to comply with the prescribed regimen of medical, psychiatric, or psychological care or treatment.” 18 U.S.C. § 4248(f).

Respondent relies on the phrase “discharged under a prescribed regimen of medical, psychiatric, or psychological care or treatment” to argue that any conditional release order must be limited to requirements for sex offender or other medical/psychological treatment. Under this interpretation, the court lacks authority to order conditions unrelated to such treatment, even fundamental requirements such as respondent shall not have direct contact with children under the age of 18 without prior approval. (See Resp't Objections (DE 363) at 1; see also Proposed Plan (DE 362-1) ¶ 27). As noted above, respondent argues that the only valid release condition in the plan is condition four requiring sex offender treatment. (See Resp't Objections (DE 363) at 1).

When addressing a question of statutory interpretation, the court's inquiry properly “begins with the statutory text.” National Ass'n of Mfrs. v. Dep't of Def., 583 U.S. 109, 127, 138 S.Ct. 617, 199 L.Ed.2d 501 (2018); Jimenez v. Quarterman, 555 U.S. 113, 118, 129 S.Ct. 681, 172 L.Ed.2d 475 (2009) (“As with any question of statutory interpretation, our analysis begins with the plain language of the statute.”).² “If the statutory language is unambiguous, in the absence of a clearly expressed legislative intent to the contrary, that language must ordinarily be regarded as conclusive.” Russello v. United States, 464 U.S. 16, 20, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983). However, ambiguity arises “[not only] by reference to the language itself, [but as well by] the specific context in which that language is used, and the broader context of the statute as a whole.” Yates v. United States, 574 U.S. 528, 537, 135 S.Ct. 1074, 191 L.Ed.2d 64 (2015).

Where there is ambiguity, the court “look[s] to legislative intent,” CGM, LLC v. BellSouth Telecommunications, Inc., 664 F.3d 46, 53 (4th Cir. 2011), as demonstrated through “[t]he purpose, the subject matter, the context, [and] the legislative history ․ of the statute.” International Primate Prot. League v. Adm'rs of Tulane Educ. Fund, 500 U.S. 72, 83, 111 S.Ct. 1700, 114 L.Ed.2d 134 (1991); see also Sierra Club v. U.S. Army Corps of Eng'rs, 909 F.3d 635, 645 (4th Cir. 2018) (“[W]e start with the plain language of Section 1341(d) of the Clean Water Act but also consider its structure, purpose, and legislative history as additional evidence of congressional intent.”). Thus, “[i]t is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their places in the overall statutory scheme.” Roberts v. Sea-Land Air Servs., Inc., 566 U.S. 93, 101, 132 S.Ct. 1350, 182 L.Ed.2d 341 (2012).

1. Textual Analysis

Beginning with the statutory text, the relevant provision here is § 4248(e), which provides that the court shall order conditional release under a prescribed treatment regimen and “order, as an explicit condition of release, that he comply with the prescribed regimen of medical, psychiatric, or psychological care or treatment.” 18 U.S.C. § 4248(e)(2)(B) (emphasis added). Although the United States Court of Appeals for the Fourth Circuit has not addressed this language, the prevailing view is that Congress's use of the indefinite article “an” implies that courts are not limited to prescribed psychiatric of psychological treatment regimens when ordering conditional release. See United States v. Franklin, 435 F.3d 885, 889 (8th Cir. 2006) (construing materially identical provision in 18 U.S.C. § 4246(e)); United States v. Jain, 174 F.3d 892, 897–98 (7th Cir. 1999) (construing materially identical provision in 18 U.S.C. § 4243(f)); United States v. Phelps, 283 F.3d 1176, 1186 (9th Cir. 2002) (same). Under this reading, courts retain authority to fashion additional, ancillary conditions of release reasonably related to ensuring respondent's compliance with treatment and protecting the community. See Franklin, 435 F.3d at 889; Jain, 174 F.3d at 897–98; Phelps, 283 F.3d at 1186.

Respondent argues this is a misreading of the statute, relying upon United States v. Crape, 603 F.3d 1237 (11th Cir. 2010). In Crape, the United States Court of Appeals for the Eleventh Circuit held that district courts are not permitted to order ancillary conditions that are not components of a prescribed treatment regimen. See 603 F.3d at 1244. Rejecting the analysis above, the Eleventh Circuit explained that the indefinite article “an” is insufficient to establish wide-ranging power to impose additional conditions of release, particularly where Congress did not explicitly authorize additional conditions in other portions of the statute. See id. The court noted that using “an” merely “avoids the ungainly construction that would result from the use of a definite article in its place (e.g., ‘the court shall order, as the explicit condition of release’).” 603 F.3d at 1244. Moreover, the Eleventh Circuit explained that use of a definite article would “inaptly suggest the possibility of inexplicit conditions on [a detainee's] discharge.” Id. Finally, reading “an” as implying an undefined power to place other conditions on release “would have no natural limits.” Id.

The court will adopt the majority approach. The indefinite article “an” when used in the phrase “order, as an explicit condition of release” suggests Congress contemplated additional conditions beyond the treatment regimen. See United States v. McCauley, 983 F.3d 690, 695–96 (4th Cir. 2020) (discussing distinction between definite article “the” and indefinite article “a” with the latter referring to “one among many”). Here, “an explicit condition” refers to the prescribed treatment regimen as one set of conditions that must be included while at the same time suggesting the court retains authority to impose additional conditions. See id.; see also Franklin, 435 F.3d at 889 (“Congress apparently envisioned the possible imposition of multiple conditions of release, not merely ‘an explicit condition’ ”); Jain, 174 F.3d at 897–98 (“In fact, § 4243(f)(2)(B) expressly states that the prescribed regimen may be ordered as ‘an explicit condition of release,’ with the use of the indefinite article suggesting that other conditions may be imposed as well”).

The Fourth Circuit also has suggested that the district court's authority to impose conditions is not limited to requiring psychological care or treatment. While this precise issue was not before the court in United States v. Perkins, the court of appeals noted that conditional release may be revoked if the person “fail[s] to comply with his treatment regimen, including all conditions reasonably related thereto. 67 F.4th 583, 614 (4th Cir. 2023) (emphasis added). The Fourth Circuit also relied upon Jain as support for the notion that “district courts generally are accorded great latitude when determining whether a mentally ill defendant is ready to be released and under what conditions.” Id. (citing Jain, 174 F.3d at 898, the page where the Seventh Circuit held the indefinite “an” in § 4243(f) means that “other conditions may be imposed” beyond the treatment regimen). Perkins therefore suggests that conditional discharge in this context is not limited to conditions requiring compliance with medical or psychological treatment.

Respondent emphasizes that § 4248's discharge provisions repeatedly refer to discharge under a “prescribed regimen of medical, psychiatric, or psychological care or treatment.” See 18 U.S.C. § 4248(e); (Resp't Objections (DE 363) at 3–4). But it does not follow from Congress's repeated use of that phrase that conditions requiring psychological care or treatment are the only ones that can be imposed. Such a reading ignores the indefinite article “an” in the provision describing conditional release. See Franklin, 435 F.3d at 889; Jain, 174 F.3d at 897–98. For this reason, the text of the statute does not dictate that the court lacks authority to monitor respondent's behavior to ensure he is not dangerous to others by imposing additional conditions beyond the treatment regimen.

To the extent Crape casts doubt on this view, the Eleventh Circuit's reasoning at most establishes that the phrase, “order, as an explicit condition of conditional release,” is ambiguous with respect to whether additional conditions are allowed. The fact that using the definite article “the” as opposed to “an” would have been “ungainly” grammatically hardly forecloses the contrary view that Congress envisioned additional conditions. See Crape, 603 F.3d at 1244; cf. Lockhart v. United States, 577 U.S. 347, 352–54, 136 S.Ct. 958, 194 L.Ed.2d 48 (2016) (discussing statutory text that was “awkwardly phrased (to put it charitably)”). Moreover, regardless of whether the definite “the” or indefinite “an” is used, the text can be read to suggest the possibility of inexplicit conditions. See Crape, 603 F.3d at 1244. Crape's textual analysis therefore does not compel the reading offered by respondent.

Assuming that the phrase “order, as an explicit condition of conditional release” is ambiguous, the court must consult additional tools of statutory construction. The court therefore proceeds to analysis of the purpose, subject matter, context, structure, and legislative history of the statute. See Sierra Club, 909 F.3d at 645.

2. Purpose and Subject Matter

The purpose and subject matter of § 4248, to protect the public from sexually dangerous individuals who suffer from a qualifying mental illness, both support allowing robust conditions of release beyond a treatment regimen. See United States v. Comstock, 560 U.S. 126, 139–43, 130 S.Ct. 1949, 176 L.Ed.2d 878 (2010) (discussing purpose of § 4248). As the United States Court of Appeals for the Seventh Circuit observed in rejecting the same argument presented here:

Perhaps the most important shortcoming of Jain's interpretation of § 4243(f) is the fact that it disregards the role that subsection plays in the statute as a whole. The basic inquiry the court is making throughout § 4243 is whether release of the person would create a substantial risk of bodily injury to another person or serious damage to the property of another—briefly put, whether the public needs protection from the danger posed by the person's mental illness. See United States v. Clark, 893 F.2d 1277, 1282 (11th Cir. 1990) (noting “the trial court's awesome responsibility to the public to ensure that a clinical patient's release is safe”). In light of that overriding purpose, it would be inappropriate to adopt a crabbed reading of the content of the “prescribed regimen of medical, psychiatric, or psychological care or treatment” that may be imposed as a condition of release.

Jain, 174 F.3d at 898. Accordingly, the subject matter and purpose of § 4248 fully support the court's interpretation that additional conditions of release beyond the treatment regimen can be imposed.

In Crape, the Eleventh Circuit was concerned that allowing non-treatment conditions would “have no natural limits.” 603 F.3d at 1244. But such limitations are inherent in the subject matter and purpose of the statute. Thus, any additional conditions of release must be reasonably related to the treatment regimen or monitoring whether the respondent is sexually dangerous to others. See Perkins, 67 F.4th at 637 (noting additional conditions should be “reasonably related” to the treatment regimen); Franklin, 435 F.3d at 889 (requiring ancillary conditions be “related to the mental disease or defect and reasonably necessary to assure the safety of the community”).

3. Structure and Context

Turning to the structure and context of § 4248, respondent notes that § 4248(f) provides for revocation of conditional discharge only upon finding that he has failed “to comply with the prescribed regimen of medical, psychiatric, or psychological care or treatment” and that as a result he is sexually dangerous to others. 18 U.S.C. § 4248(f) (emphasis added); see also Perkins, 67 F.4th at 637 (requiring similar findings under § 4246(f)). According to respondent, since revocation arguably requires a violation of the prescribed treatment conditions, the court lacks authority to impose any conditions beyond that regimen.

But this argument ignores the broader context of conditional release. The non-treatment conditions such as computer monitoring, location monitoring, and residing in a residential reentry center during the initial transition allow for additional monitoring of respondent's compliance with treatment concepts and his dangerousness to others. In the event respondent absconds from his residential reentry center, fails a polygraph, or accesses child pornography through the internet, such transgressions would trigger discussions with the sex offender treatment provider about whether respondent is complying with the requirements of his therapeutic program. In the related context of substance abuse treatment, the court would not consider someone who repeatedly fails drug tests administered by probation to be compliant with a substance abuse treatment regimen that expects abstinence, even if such person had perfect attendance and thoroughly participated in therapy sessions. In this way, the conditions challenged by respondent can inform whether respondent is complying with the behavioral requirements of the treatment regimen or whether revocation may be appropriate.

Moreover, the court must determine whether respondent failed to comply with the treatment regimen and that he is sexually dangerous to others in light of the failure. 18 U.S.C. § 4248(f). That inquiry requires consideration of a broad array of factors that are unrelated to whether respondent is attending sex offender treatment and participating in therapy sessions, including factors that may be wholly concealed from the outpatient therapist. See United States v. Wooden, 693 F.3d 440, 459, 462 (4th Cir. 2012) (discussing relevant factors including whether the individual is acting on pedophilic urges or deviant sexual interests, engaging in other high-risk behavior, acting impulsively, or exhibiting cognitive distortions); see also Perkins, 67 F.4th at 633–34 (discussing related factors for revocation of conditional discharge under § 4246(f)). The record of respondent's actual behavior on conditional release, as opposed to the relatively limited interactions between him and his individual sex offender therapist, is critical for determining whether respondent is sexually dangerous to others in light of the failure to comply with the treatment regimen. See Wooden, 693 F.3d at 459, 462; see also United States v. Hall, 664 F.3d 456, 464–67 (4th Cir. 2012) (noting that offense-free time in the community is an important factor in the sexual dangerousness inquiry). And the probation officer, together with the outpatient sex offender therapist, can provide the requisite monitoring and factual information to the court regarding respondent's behavior that will inform the dangerousness inquiry, but only if they are permitted to do so under the conditional release order. A broad conditional release order allowing for monitoring of respondent's behavior, and restricting his access to high-risk situations, is therefore fully consistent with the requirements in § 4248(f).

Accordingly, the fact that § 4248(f) arguably limits revocation of conditional discharge to failure to comply with the treatment regimen does not establish that the court is powerless to order any conditions beyond compliance with sex offender treatment. Instead, the court must impose additional conditions “reasonably related” to monitoring respondent's compliance and sexual dangerousness. See Perkins, 67 F.4th at 637.

A related statutory provision governing supervision of individuals released under § 4248 and other civil commitment statutes provides further support for the court's interpretation. 18 U.S.C. § 3603(8)(B), enacted simultaneously with the conditional discharge provisions in §§ 4243(f) and 4246(e),³ provides that the probation officer supervising a conditionally-released detainee shall “immediately report any violation of the conditions of release to the court and the Attorney General or his designee.” (emphasis added). Congress's choice of the plural and unqualified “conditions” supports the view that “order, as an explicit condition of release, that he comply with the [treatment regimen]” is not intended to limit the court's ability to impose additional, standard conditions of release. See Franklin, 435 F.3d at 889 (providing similar analysis).

Moreover, “when directed by the court, and to the degree required by the regimen of care or treatment ordered by the court” probation must “keep informed as to the conduct and provide supervision of a person conditionally released” pursuant to § 4248. 18 U.S.C. § 3603(8)(A). Probation cannot “keep informed as to the conduct” or “provide supervision” of such persons if it does not have authority to monitor anything other than treatment compliance. The fact that § 3603(8)(A) also provides that probation's monitoring is “to the degree required by the regimen of care or treatment” does not change the analysis. Read in context, this provision instead suggests that the regimen of care or treatment itself can require monitoring the respondent's conduct outside of treatment and other traditional forms of supervision. See id.; see also Roberts, 566 U.S. at 101, 132 S.Ct. 1350 (discussing rule that words of a statute “must be read in their context”); Perkins, 67 F.4th at 615 (observing that probation, supervised release, and conditional discharge under identical provision in 18 U.S.C. § 4246(e) represent “three essentially identical judicial supervision processes”).

Where §§ 4243(f) and 4246(e), the models for § 4248(e), were enacted as part of the same legislation as § 3603(8) and cover the same subject matter,⁴ the court generally presumes “consistent meaning between statutory language.” Perkins, 67 F.4th at 614 (quoting Erlenbaugh v. United States, 409 U.S. 239, 243, 93 S.Ct. 477, 34 L.Ed.2d 446 (1972)). And employing that presumption here, § 3603(8)'s directive to “provide supervision” and “keep informed as to the conduct” of a conditionally released detainee supports the view that § 4248(e) is not limited requiring compliance with a medical or psychological treatment plan.

In sum, these related statutory provisions all support reading § 4248(e) as permitting additional conditions reasonably related to treatment and monitoring respondent's sexual dangerousness.

4. Legislative History

As for legislative history, respondent argues that Congress knew how to give courts broad authority to impose additional conditions on release when it enacted § 4248(e), pointing to the extensive statutory framework governing probation and supervised release conditions. See 18 U.S.C. §§ 3563(a)-(b), 3583(d); (Resp't Objections (DE 363) at 6). For example, § 3583(d) first provides that “the court shall order, as an explicit condition of supervised released, that the defendant may not commit another [criminal offense]” and other mandatory conditions. The statute goes on to provide the “court may order” additional discretionary conditions but only to the extent they are reasonably related to specified sentencing factors, involve “no greater deprivation of liberty than is reasonably necessary” to comply with the statutory purposes of sentencing, and that they are consistent with any pertinent policy statements issued by the Sentencing Commission. 18 U.S.C. § 3583(d). By contrast, § 4248 does not contain an express provision stating the court “may order” additional conditions beyond the treatment regimen or set the standards by which to evaluate any additional conditions. See 18 U.S.C. § 4248(e). Thus, the argument goes, the absence of specific statutory guidance regarding additional release conditions in § 4248 indicates that Congress did not intend conditions other than the prescribed treatment regimen.

In a similar vein, in Crape the Eleventh Circuit found support for its holding that only conditions related to treatment can be imposed by reference to the legislative history of § 4243(f). 603 F.3d at 1245. As noted above, that provision and § 4246(e), which were the models for § 4248(e), were enacted as part of the Comprehensive Crime Control Act of 1984 (“1984 CCCA”). Id.; 1984 CCCA §§ 212(a)(2), 403(a), 98 Stat. at 2002, 2059, 2062. A senate committee report from the legislative history provides that § 4243(f) requires a detainee “be discharged under an appropriate prescribed regimen of medical care or treatment on the explicit condition that he comply with the prescribed regimen.” Crape, 603 F.3d at 1245 (emphasis added) (citing S. Rep. No. 98-225, at 244 (1983)). Although not stated explicitly, the Eleventh Circuit suggests that the definite article “the” in the report indicates that “an explicit condition” should not be read to confer authority to impose conditions beyond the treatment regimen. See id. In addition, “nothing in the committee's report supports the conclusion that Congress meant to give district courts the authority to revoke a conditional discharge solely because [a detainee] is dangerous.” Id.

The Eleventh Circuit also emphasized that both § 4243(f) and 18 U.S.C. § 3583(d) (the supervised release statute) were enacted as part of the 1984 CCCA. Id. at 1246. Thus, the Eleventh Circuit reasoned,

The fact that Congress gave district courts the explicit authority to impose ancillary conditions of release under § 3583 therefore strongly suggests that Congress did not intend to make the same authority implicit under § 4243. “ ‘It is well settled that where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.’ ” United States v. Griffith, 455 F.3d 1339, 1343 (11th Cir. 2006) (quoting Duncan v. Walker, 533 U.S. 167, 173, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001)). Congress easily and explicitly could have allowed courts to impose ancillary conditions of release under § 4243 as well as § 3583. “That it did not speaks loudly and clearly.”

Id.

This legislative history admittedly can be read to suggest Congress did not intend “an explicit condition of release” to confer power to order additional conditions, especially where Congress explicitly provided that power in other sections of the same legislation. Of course, “as with any canon of statutory interpretation,” both legislative history and the presumption that Congress acts intentionally when it includes particular language in one section of a statute but omits it another are “not absolute and can assuredly be overcome by other indicia of meaning.” Lockhart, 577 U.S. at 352, 136 S.Ct. 958 (quoting Barnhart v. Thomas, 540 U.S. 20, 26, 124 S.Ct. 376, 157 L.Ed.2d 333 (2003)). In addition, “murky legislative history” cannot “overcome a statute's clear text and structure.” See Azar v. Allina Health Servs., ––– U.S. ––––, 139 S. Ct. 1804, 1815, 204 L.Ed.2d 139 (2019).

The legislative history here is not as clear as respondent's argument and Crape suggest. As noted, the 1984 CCCA established that probation must “keep informed as to the conduct and provide supervision of” individuals conditionally released pursuant to §§ 4243(f) and 4246(e). See 18 U.S.C. § 3603(8)(A)-(B); 1984 CCCA §§ 212(a)(2), 403(a), 98 Stat. at 2002, 2059, 2062. It is hard to reconcile respondent's argument that the court lacks authority to impose standard conditions of supervision with probation's responsibility to keep informed as to the respondent's conduct and provide supervision, particularly where § 3603(8) was part of the same legislation that created §§ 4243(f) and 4246(e). See Perkins, 67 F.4th at 614 (discussing rule that similar provisions enacted as part of the same statute should receive similar constructions). The legislative history therefore contains other indicia that Congress intended more robust supervision.

The court also cannot draw definitive conclusions about conditional release under § 4248 from the fact that Congress set specific standards for imposing discretionary conditions of supervised release in § 3583(d). Supervised release is part of a defendant's criminal sentence, and so it makes sense to tie those conditions to the relevant statutory sentencing factors and policy statement issues by the Sentencing Commission. See 18 U.S.C. § 3583(d)(1)-(3); see United States v. Rogers, 961 F.3d 291, 296 (4th Cir. 2020).

The civil commitment statutes do not include a comprehensive set of criteria describing the factors that must be considered during the commitment process, and there is no administrative body that issues policy statements on civil commitment. See 18 U.S.C. §§ 4243, 4244, 4245, 4246, 4248. Instead, Congress left it to the courts to develop the relevant factors, aided by expert testimony from psychiatrists, psychologists, or other professionals. See, e.g., Perkins, 67 F.4th at 616; Hall, 664 F.3d at 463. Accordingly, the fact that Congress “explicitly” required discretionary supervised release conditions to conform to statutory sentencing criteria and policy statements issued by the sentencing commission, while failing to establish criteria for ancillary conditions of supervised release in the civil commitment context, does not provide definitive evidence that Congress intended to prohibit conditions beyond the treatment regimen. As with the broader criteria for civil commitment, it is plausible that Congress intended the courts to develop the relevant conditions of release from civil commitment while at the same time mandating compliance with the treatment regimen, as one condition among others. See McCauley, 983 F.3d at 695–96 (noting indefinite article “an” can mean “one among many”).

The court also is not persuaded by the fact that a committee report used the definite article “the” instead of “an” when stating that § 4243(f) requires that the court order as “the explicit condition that he comply with the prescribed regimen.” Crape, 603 F.3d at 1245 (emphasis added) (citing S. Rep. No. 98-225, at 244 (1983)). The fact that the actual statutory language uses “an” instead of “the” instead suggests Congress determined the court should have discretion to fashion additional conditions.

Moreover, the legislative history of § 4248 can be read to suggest Congress approved ancillary conditions. The Fourth Circuit recently determined that the absence of a standard of proof for revoking conditional release under 18 U.S.C. § 4246(f) established that Congress “found satisfactory the existing judicial proof standard governing revocation of probation” that had been established by the courts prior to enactment of the 1984 CCCA. Perkins, 67 F.4th at 609–614. The court of appeals reasoned that Congress intended to adopt the judicial standard based on the principle that courts “presume that Congress is knowledgeable about existing law pertinent to the legislation it enacts.” Id. at 611 (quoting Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 184–85, 108 S.Ct. 1704, 100 L.Ed.2d 158 (1988)).

That same rule applies with equal force to § 4248. The President signed the Adam Walsh Act into law on July 27, 2006. See Pub. L. No. 109-248, 120 Stat. 587. At that time, three circuit courts of appeal had determined that the materially identical provisions in §§ 4243(f) and 4246(e) permitted ancillary conditions of release related to the treatment regimen or monitoring the respondent's mental condition. See Franklin, 435 F.3d at 889; Jain, 174 F.3d at 897–98; Phelps, 283 F.3d at 1186. And the contrary decision in Crape did not issue until 2010, four years after § 4248's enactment. 603 F.3d at 1237. Accordingly, the fact that Congress did not materially alter the language governing conditional release in § 4248 – and retained the indefinite article “an” when referring to the treatment conditions – suggests that it approved of judicially created ancillary conditions. See Perkins, 67 F.4th at 609–614. In other words, if Congress wished to disavow the interpretation of § 4246(e) and 4243(f) in Franklin, Jain, and Phelps, it could have made clear in § 4248 that no conditions beyond the treatment regimen are permitted. That it instead used the same language for the conditional release provision in § 4248(e) suggests it found those courts' interpretation allowing ancillary conditions “satisfactory.” Id. at 614; see also Palisades Collections LLC v. Shorts, 552 F.3d 327, 335 (4th Cir. 2008) (“[W]e presume that Congress legislated consistently with existing law and with the knowledge of the interpretation that courts have given to the existing statute.”).

In sum, Congress could have been more explicit as to whether it intended to authorize additional conditions beyond the treatment regimen in the civil commitment statutes. For the reasons discussed herein, however, the legislative history of the 1984 CCCA and the absence of explicit authority for ancillary conditions in §§ 4243(f), 4246(e), or 4248(e) does not establish that such conditions are not permitted. And the legislative history of § 4248 supports the court's determination that such conditions are authorized.

5. Constitutional Avoidance

Respondent's final argument is that the doctrine of “constitutional avoidance” supports his interpretation of § 4248. He notes the constitutionality of the civil commitment statutes “depends to some degree on the contention that the regimes are truly civil in nature, that the invocation of the mental condition of the statutes' targets is bona fide, and not a pretext that allows the state to unconstitutionally extend criminal sentences that otherwise have expired.” (DE 363 at 5–6) (citing Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997)). On this basis, respondent argues that interpreting the statute to permit conditions unrelated to the treatment regimen and that are borrowed from “criminal orders [governing] supervision of sex offenders” would call into question the constitutionality of § 4248's conditional release provisions. (Id.).

Under the doctrine of constitutional avoidance, courts are “obligated to construe the statute to avoid constitutional problems if it is fairly possible to do so.” Boumediene v. Bush, 553 U.S. 723, 787, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008). Here, respondent's argument presupposes that ordering ancillary conditions of release beyond the treatment regimen is unconstitutional. But the fact that some of the conditions borrow from supervised release conditions in criminal cases does not standing alone render them unconstitutional. In a civil commitment proceeding, “state power is not exercised in a punitive sense.” See Addington v. Texas, 441 U.S. 418, 428, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979); see also United States v. Comstock, 627 F.3d 513, 520 (4th Cir. 2010). Moreover, as set forth above, the court will only impose conditions reasonably related to the treatment regimen or the need to monitor the respondent for sexual dangerousness. See Perkins, 67 F.4th at 637; Franklin, 435 F.3d at 889. Thus, to the extent the conditional release provisions at issue here are designed to protect the public from sexually dangerous behavior and confirm compliance with the treatment regimen, they do not punish respondent for his past criminal behavior or “unconstitutionally extend [his] criminal sentence[ ].” (DE 363 at 6); see Addington, 441 U.S. at 428, 99 S.Ct. 1804. Respondent therefore has failed to identify a “constitutional problem” that must be avoided. See Boumediene, 553 U.S. at 787, 128 S.Ct. 2229.

Based on the foregoing, the text, purpose and subject matter, legislative history, and structure and context of the legislation all provide support the court's conclusion that conditional release under § 4248 is not limited to a prescribed psychological or medical treatment regimen. Pursuant to § 4248(e) and (f), and 18 U.S.C. 3603(8), the court retains authority to impose conditions ancillary to the treatment regimen, so long as such conditions are reasonably related to the treatment regimen or monitoring whether the respondent is sexually dangerous to others. See Perkins, 67 F.4th at 637; Franklin, 435 F.3d at 889.

Before turning to respondent's objections to specific conditions, the court emphasizes the practical implications of respondents' objections to the proposed plan. Releasing respondent under conditions was a close call given his extensive sex offense history, his prior failures on supervision, and the questions about his motivation for treatment. (See July 18, 2023, order (DE 360) at 14–15). But respondent's proposed plan does not authorize any objective monitoring of respondent's behavior in the community or restrict his access to risk-relevant materials. (See DE 363). Respondent even objects to waivers of therapist-patient confidentiality, which would restrict probation's ability to monitor his substantive progress in sex offender treatment. (Id. at 12). If the court lacks authority to order the standard release conditions that have been imposed in every prior conditional release case overseen by the undersigned, the court likely would not have ordered conditional release in this case.

B. Respondent's Objections to Specific Conditions

The court next turns to respondent's objections to specific conditions. As set forth above, ancillary conditions must reasonably be related to the treatment regimen or monitoring whether respondent is sexually dangerous to others. As a general rule, conditions that meet this standard are valid regardless of whether they impinge on respondent's constitutional rights or other freedoms. See United States v. Comer, 5 F.4th 535, 545 (4th Cir. 2021) (“Further, because the government may lawfully restrict individuals on supervised release from engaging in otherwise constitutionally protected conduct ․ supervised release conditions are not constitutionally infirm as long as they [comport with the statutory goals of supervised release].”).

1. Residential Reentry Center (“RRC”) or halfway house placement (condition 3)

Respondent objects to the condition that he reside in an RRC for up to 90 days following his release, noting that he prefers to reside initially with his sister in Apple Valley, California. This condition allows for a brief period of enhanced monitoring as respondent transitions to the community for the first time in more than 20 years. It is reasonably related to the treatment regimen because it facilitates probation's ability to monitor his behavior and ensures he is not engaging in risk-relevant behavior during his initial transition to the community. The condition therefore is not “punitive” or unnecessary.⁵ (Resp't Objections (DE 363) at 10).

2. Requirement that respondent follow all rules and regulations of his sex offender treatment program (condition 5)

Respondent argues this condition is “vague and not spelled out.” (DE 363 at 11). In the context of supervised release, the court must order participation in a treatment program but may “delegate the authority [to the treatment provider] to establish the rules, requirements, and conditions associated with the program.” United States v. Amin, 85 F.4th 727, 734 (4th Cir. 2023). In addition, the rules and regulations of the program will be provided to respondent when he enrolls. If respondent believes such rules are overly vague or otherwise inappropriate, he can petition the court for modification of the plan. (See Proposed Plan (DE 362-1) ¶ 42).

3. Participation in substance abuse treatment and submission to drug tests (conditions 6 and 21)

Respondent objects to the substance abuse conditions because no experts diagnosed him with a substance abuse disorder and “substance abuse and alcohol abuse are not issues for [respondent].” (DE 363 at 11). On the contrary, respondent has a documented history of using controlled substances, including heavy use of methamphetamine. (Cunic Report (DE 42-1) at 8–9). Although respondent has not used controlled substances during his extensive period of incarceration/civil detention, that does not foreclose the possibility he could return to drug use when released to the community. And using controlled substances is a risk factor for committing child molestation or sexual violence in the community. See United States v. Bell, 884 F.3d 500, 506 (4th Cir. 2018) (discussing evidence showing “strong pedophilic urges and fantasies” are “compounded by [the respondent's] substance abuse”). Thus, monitoring for substance abuse/prohibiting such use is reasonably related to the treatment regimen. Finally, condition six only mandates substance abuse treatment in the event a professional recommends treatment. (Proposed Plan (DE 362-1) ¶ 6).

4. Polygraph Examinations (condition 7)

Respondent challenges the polygraph condition because such tests are “not reliable and inadmissible in all courts” and they are “not a necessary component of a treatment regimen.” (DE 363 at 11). Even if the exams are “unreliable,” the results can identify areas where respondent may be concealing risk-relevant behavior, thus warranting further inquiry or investigation by the probation officer or the treatment provider. More importantly, they are a standard component of sex offender treatment. (See Pet'r Resp. (DE 364) at 15). As the Fourth Circuit has explained in the related context of supervised released:

Obviously, however, evidentiary cases do not govern our evaluation of the use of polygraphs in connection with the treatment of an offender. The use of a polygraph test here is not aimed at gathering evidence to inculpate or exculpate Dotson. Rather, the test is contemplated as a potential treatment tool upon Dotson's release from prison—as witnessed by the district court's direction that the results of any polygraph testing not be made public.

United States v. Dotson, 324 F.3d 256, 261 (4th Cir. 2003). The court therefore finds polygraphs are reasonably related to the treatment regimen and monitoring respondent's behavior in the community. In addition, conditional release cannot be revoked based solely on the results of these examinations, which further mitigates respondent's concerns about the reliability of the testing. See id.; (Proposed Plan (DE 362-1) ¶ 7).

5. Psychiatric Treatment (condition 8)

Respondent argues he is “not under the care of a psychiatrist and has never taken psychotropic medications” and so the condition requiring psychiatric treatment is not a “necessary part” of his treatment regimen. (DE 363 at 11). The condition provides in relevant part that

should respondent's supervising U.S. probation officer, in conjunction with his treatment provider, determine that he requires additional aftercare treatment services, to include psychiatric treatment and/or medication, the treatment provider shall refer respondent to a qualified professional that has experience in pharmacological management of sexual offending behaviors or other appropriate professional.

(Proposed Plan (DE 362-1) ¶ 8). This condition simply provides probation and the treatment provider authority to refer respondent for additional treatment, that may include psychiatric medication. It does not require that respondent take psychiatric medications that he believes are unnecessary. And while respondent does not currently take psychiatric medications, that does not foreclose the possibility that he may need them upon release to the community, particularly to the extent they may be helpful to manage, as stated in the condition, “sexual offending behavior.” (Id.). Finally, the condition on its face is reasonably related to medical, psychiatric, or psychological treatment. See 18 U.S.C. § 4248(e).

6. Waiver of confidentiality (condition 17)

Condition 17 provides that respondent shall “waive confidentiality and shall sign releases of information so that treatment providers, supervision officers, polygraph examiners, and state or local social service agencies can communicate openly about his case and release conditions.” (Proposed Plan (DE 362-1) ¶ 17). Respondent “urges the court to consider whether waiving all therapist-patient privilege is a necessary part of a prescribed regimen of care.” (DE 363 at 12). While waiving confidentiality/privilege may not be a necessary part of treatment, it is clearly necessary to monitor respondent's compliance with treatment and whether he poses a danger to the community. The court will not release respondent to the supervision of United States probation, and order “as an explicit condition of release,” that he comply with sex offender treatment without allowing probation to monitor his compliance. See 18 U.S.C. § 3603(8)(A) (requiring probation to provide supervision and keep informed as to the conduct of individuals released under § 4248 to the degree required by the conditional release order). To the extent respondent is arguing that unlimited waiver of confidentiality is unnecessary, he does not offer specific limitations that should be placed on the waiver.

Respondent separately objects to the requirement that he waive confidentiality as to the polygraph examiners and state and local service agencies. According to petitioner, the polygraph examinations are part of standard sex offender treatment programs, and thus waiver of confidentiality as to these providers is a necessary part of treatment. (DE 364 at 15). Petitioner further notes that waiver of confidentiality is necessary for state or local providers to implement the treatment regimen. (See id. at 16). On reply, respondent offers no response to these arguments. (See DE 366). Based on these uncontested arguments, the court finds waiving confidentiality as to the polygraph examiners and state/local agencies is reasonably related to implementing the treatment regimen and monitoring respondent's behavior in the community.

7. Home detention and location monitoring (condition 18)

Condition 18 provides that respondent shall “participate in a home detention program which may include electronic monitoring, GPS, alcohol monitoring unit, or automated identification system and shall observe all rules of such program, at the discretion of the U.S. probation officer.” (Proposed Plan (DE 362-1) ¶ 18 (emphasis added)). Respondent objects that this condition is “not part of care or treatment” and that it is punitive in nature.

Importantly, probation reports that respondent will not be ordered confined to his residence as a matter of course upon his release from the RRC. Instead, the home detention condition “will only be utilized if deemed necessary as it relates to potential communication or noncompliance issues.” (Probation Correspondence (DE 365) at 10). In this way, the condition “will allow for any potential issues to be resolved without formal court action or a request for [respondent] to be returned to custody.” (Id.). Home detention therefore provides an enhanced mechanism for monitoring respondent's behavior in the event of noncompliance with conditions of release,⁶ and it is thus reasonably related to monitoring respondent's compliance with treatment and sexual dangerousness. As interpreted by probation, the home detention condition is not “punitive” or otherwise unrelated to the goals of conditional release. See Comer, 5 F.4th at 542 (noting district court may consider probation officer's “statements or instructions” when considering validity of a proposed condition).

As for the monitoring provisions, they too provide an obvious mechanism for supervising respondent's behavior in the community and ensuring he is complying with the treatment regimen by avoiding risk-relevant behavior. The condition therefore is reasonably related to the treatment regimen and monitoring respondent's sexual dangerousness.

8. Disclosure of financial information (condition 19)

Respondent argues he should not be required to disclose his financial records to the probation office where the court lacks authority to require him to pay for treatment and other supervision services. As explained below, the court will not require respondent to pay for treatment services and monitoring devices. However, this condition also allows the probation officer to monitor respondent's behavior by reviewing whether he is spending money on risk-relevant material. The condition therefore is reasonably related to monitoring respondent's compliance with treatment and his sexual dangerousness.

9. Computer monitoring and unannounced seizure of electronics (condition 24)

Condition 24 provides that respondent's electronic devices “shall be subject to search and seizure,” including unannounced “seizure for the purpose of search.” (Proposed Plan (DE 362-1) ¶ 24). Respondent also must consent to installation of search and/or monitoring software or hardware, and he shall not “add, remove, upgrade, update, reinstall, repair, or otherwise modify the hardware or software” on his electronic devices without prior approval of the probation officer. Respondent argues the condition “seems overbroad” where it goes beyond monitoring of internet activity. (DE 363 at 12). He further opposes requiring approval of the probation officer before updating his electronic devices since many programs update automatically and the condition “seems like a likely trap.” (Id.).

As for the searches and seizures of electronic devices, this condition is necessary to ensure respondent does not have inappropriate contact with children or view child pornography through his electronic devices. (See July 18, 2023, order (DE 360) at 15). The devices can be used for these purposes without accessing the internet. Thus, search of his electronic devices (beyond monitoring internet activity) is appropriate to further these treatment and public safety objectives. As for the requirement that respondent obtain approval of his probation officer before updating the devices, respondent does not explain why he cannot turn off automatic updates on the devices. Moreover, to the extent that respondent neglects to do so and a device updates without officer approval, the court will not revoke conditional release on the basis of inadvertent violations. See Comer, 5 F.4th at 544 (explaining that as a general rule probationers “may not be punished for inadvertent violations”).

10. Prohibition on going to areas prohibited by the probation officer (condition 26)

Respondent's objection to this condition is moot where petitioner changed condition 26 to prohibit knowingly leaving the Central District of California without prior approval by the officer. (Pet'r Resp. (DE 364) at 19; Proposed Plan (DE 362-1) ¶ 26). Respondent does not challenge the revised condition in his reply brief. (See DE 366).

11. Prohibition on parks (condition 30)

Condition 30 provides that respondent shall not “enter, or loiter, within 100 feet of school yards, parks, public swimming pools, playgrounds, youth centers, video arcade facilities, amusement and theme parks, or other places primarily used by persons under the age of 18, without the prior written authorization of the probation officer.” (Proposed Plan (DE 362-1) ¶ 30). Respondent argues this condition is “punitive” and that it “cannot be properly categorized as a part of a treatment regimen.” (DE 363 at 13). As for the treatment regimen argument, the court has determined above that it can impose ancillary conditions of release so long as they are reasonably related to the treatment regimen or monitoring respondent's sexual dangerousness. Prohibitions such as the foregoing satisfy this standard because they prohibit respondent from engaging in risk-relevant behavior by visiting places frequented by children. Cf. United States v. Hamilton, 986 F.3d 413, 423 (4th Cir. 2021) (upholding condition of supervised release that prohibited, inter alia, “going to or remaining at any place [the defendant] knows children under the age of 18 are likely to be, including parks” where the condition was reasonably necessary to protect the public).

To the extent some parks do not meet this standard, that contingency is best left to the dialogue between respondent and his probation officer. See id. (“The movement restriction here provides examples of prohibited places, and defendant can use common sense and consult his probation officer if there is any doubt as to a particular location.”); Amin, 85 F.4th at 734 (“In specifying supervised release conditions, the district court need not go in search of needless contingencies and complexities. Rather, as long as the court orders the broad principle guiding the condition of release and retains the ultimate authority over revoking release, the court may allow the probation officer to fill in many of the details necessary for applying it.”); Comer, 5 F.4th at 547. In the event respondent wants to visit a particular park during conditional release, he can discuss which parks (if any) are permitted with his probation officer. And if respondent disagrees with the probation officer's decision as to a particular location, he can seek clarification from the court or modification of the condition. See Amin, 85 F.4th at 737; United States v. Lingle, 557 F. Supp. 3d 673, 676–77, 683 (E.D.N.C. 2021). Accordingly, this condition is a reasonable component of the proposed plan.

12. Prohibition on affiliation, ownership, control, volunteering, or employment with any entity or individual whose principal product is the selling of materials depicting or describing sexually explicit conduct as defined in [18] U.S.C. § 2256(2) (condition 31)

Respondent argues the foregoing condition is unduly vague and that it is not a necessary part of a treatment regimen. A condition is unduly vague when it fails to provide “fair notice of the conduct that it punishes” or is “so standardless that it invites arbitrary enforcement.” See United States v. Van Donk, 961 F.3d 314, 323–24 (4th Cir. 2020). Here, to the extent respondent is challenging the phrase “sexually explicit conduct,” it is defined by reference to a federal statute,⁷ and respondent does not explain how that definition is unduly vague. See id. (requiring definition for terms such as “pornography” or “sexually stimulating materials” in order to withstand vagueness challenge). Respondent's conclusory objection also does explain why the terms “affiliation, ownership, control, employment by, or volunteering with” are unduly vague. (Proposed Plan (DE 362-1) ¶ 31).

Respondent's assertion that the condition is not a necessary part of the treatment regimen is without merit for the reasons set forth above. The court retains authority to impose conditions ancillary to the treatment regimen, and this condition is reasonably related to treatment/sexual dangerousness where it prohibits respondent from engaging in risk-relevant conduct. Affiliation with individuals or entities involved in selling sexually explicit materials places respondent in a high-risk situation that could lead to sexual dangerousness, especially in light of his past conviction for sending child pornography across state lines. (See July 18, 2023, order (DE 360) at 3 (noting underlying facts included respondent taking sexually explicit photographs of a minor)).

13. Prohibition on accessing via computer any material that relates to children (condition 33)

Respondent also argues that condition 33 is unduly vague and overly broad. Petitioner's response does not address these objections directly, but it suggests the condition is limited to “risk-relevant” material. (DE 364 at 20). The court therefore will limit this condition to prohibiting “access via computer any risk-relevant material that relates to children, such as sexually explicit written material involving children or sexually explicit images or videos of children. The term “sexually explicit” shall have the meaning set forth in 18 U.S.C. § 2256(2). Additional risk-relevant material involving children may be defined by respondent's sex offender treatment provider and probation officer, and with judicial review available if necessary.”

As noted above, the court may order a “broad principle guiding the condition of release” and “allow the probation officer to fill in many of the details necessary for applying it” so long as it retains the ultimate authority over revoking release. Amin, 85 F.4th at 734; Comer, 5 F.4th at 547. In addition, a condition is not unconstitutionally vague if it “has a core, commonsense meaning that provides fair notice of what conduct is prohibited” and if the court provides “layers of protection” that mitigate concerns regarding fair notice or arbitrary enforcement. Comer, 5 F.4th at 544. In Comer, these layers of protection included the ability to “seek guidance from [the defendant's] probation officer” about the conduct prohibited, that the defendant could not be punished for inadvertent violations, and that she can “always bring an as-applied challenge to future restrictions on her access to social networks.” Id.

The revised condition prohibits respondent from accessing sexually explicit written materials about children or images or videos of sexually explicit conduct involving children, with the term sexually explicit defined by reference to 18 U.S.C. § 2256(2). This revised condition provides “fair notice of what conduct is prohibited.” Comer, 5 F.4th at 544.

But a broader array of materials related to children may be considered risk relevant. The revised condition therefore delegates authority for defining such material to both respondent's probation officer and sex offender treatment provider in the first instance, with further review available in this court as necessary. See Amin, 85 F.4th at 734 (noting district court may set broad release condition and delegate authority to probation officer to “fill in the details necessary for applying it”); Van Donk, 961 F.3d at 324, 327–28 (explaining “vagueness issues are mitigated when the regulated party has the ability to clarify the meaning of the regulation by its own inquiry” and affirming delegation of authority to treatment provider for banning adult pornography that sexually enticed the defendant). Furthermore, as discussed above, respondent will not be punished for inadvertent violations of this condition, which also mitigates any vagueness concerns. Comer, 5 F.4th at 544. The revised condition also expressly permits as-applied challenges to this condition if respondent disagrees with the probation officer or sex offender therapist's definition of risk-relevant material. See id.; see also Amin, 85 F.4th at 737; Lingle, 557 F. Supp. 3d at 676–77, 683. Accordingly, the revised condition is not unduly vague or overly broad.⁸

14. Prohibition on legal pornography (condition 35)

Condition 35 proscribes possessing, viewing, or using “any form of pornography including material depicting ‘sexually explicit conduct,’ ” which is defined in the condition. Respondent objects in conclusory fashion that the condition is “punitive and not a valid component of a treatment regimen given his past offense history.” (DE 363 at 13). Contrary to these arguments, the condition proscribes risk-relevant conduct where viewing adult pornography could lead to accessing child pornography and otherwise interfere with respondent's ability to manage his sexually deviant urges. See Van Donk, 961 F.3d at 322–23.

In Van Donk, the government supported the pornography ban by way of expert testimony from the sex offender treatment provider. Id. at 323. Petitioner does not point to specific expert testimony in this case that connects possession of legal adult pornography to respondent's risk in the community. Nonetheless, such a logical connection is easy to draw where adult pornography can depict fictional accounts of sexual abuse of minors, which in turn could trigger respondent's sexually deviant urges. Moreover, respondent's argument that the condition is inappropriate in light of his offense history is without merit where his history includes using the internet to view inappropriate images of young girls, concealing same from his probation officer, and using the internet to attempt to molest a fictional 12-year-old girl. (July 18, 2023, order (DE 360) at 4; Rigsbee Report (DE 349-1) at 4).

The court therefore agrees that accessing adult pornography is a high-risk situation for respondent, and should be proscribed initially as a reasonable component of the treatment regimen and preventing respondent's relapse into sexual dangerousness. Cf. Hamilton, 986 F.3d at 418 (noting goals of supervised release include rehabilitation and protection of the public, both of which are furthered by providing “a bridge or transitional period from the restrictions of full-scale incarceration to the complete absence of restrictions that comes from outright release”). Finally, as with all conditions, respondent may petition for modification of this condition in the event he or his treatment providers determine that the condition is not necessary. (Proposed Plan (DE 362-1) ¶ 42).

15. Prohibition on viewing media depicting children, or with children as the anticipated audience (condition 36)

Condition 36 provides as follows:

Respondent [shall not] possess, view, or otherwise use any form of materials that promote offense supportive attitudes or are clearly demonstrative of previously identified dynamic risk factors including media primarily depicting children, media with children as the primary intended audience, and publications from organizations that are known to promote offense supportive attitudes (i.e., North American Man/Boy Love Association (NAMBLA)) as determined by U.S. Probation and treatment providers.

(DE 362-1 ¶ 36). Respondent objects that the restrictions on “media primarily depicting children” and “media with children as the primary intended audience” are “vague, overbroad, and encompass[ ] legal activity like watching movies and television.” (DE 363 at 13). As for the latter objection, the proposed plan restricts numerous “legal” activities such as internet use and travel. There is no requirement that the conditional release order only restrict illegal activities. See Comer, 5 F.4th at 545. To the extent respondent's objection is that this condition is not a valid component of the treatment regimen, the court disagrees for the reasons explained above. This condition prohibits respondent from engaging in risk-relevant conduct as determined by probation and treatment providers.

As for the vagueness and overbreadth challenges, the phrases “media primarily depicting children” and “media with children as the primary intended audience” have a “core, commonsense meaning that provides fair notice of what conduct is prohibited.” Comer, 5 F.4th at 544. And to the extent vagueness or overbreadth concerns do arise, the condition permits further consultation with the probation officer and treatment providers to identify the types of materials that are prohibited. See id. at 542; Van Donk, 961 F.3d at 324, 327–28. As noted above, vagueness and overbreadth concerns also lose force in circumstances where inadvertent violations will not be punished, and respondent can seek clarification from the court in the event of disagreement with his probation officer or treatment providers. See Amin, 85 F.4th at 737; Comer, 5 F.4th at 544.

In sum, with the sole exception of the objection to condition 33, the foregoing objections are overruled. As to condition 33, the court sustains the objection in part and provides a revised condition (set forth above) for inclusion in the forthcoming conditional release order. As herein revised, the court finds that each of the conditions is reasonably related to respondent's treatment regimen and monitoring him for sexual dangerousness in the community. Further, the conditions are appropriate in light of respondent's pedophilic disorder and they are reasonably necessary to protect the public and promote respondent's treatment goals.

C. Objections to Financial Conditions

Respondent also broadly objects to all conditions that require him to pay for all or a portion of the costs of treatment or supervision services, including sex offender treatment, polygraph testing, location monitoring, or computer monitoring. (DE 363 at 2). Petitioner does not offer statutory or case law that directly supports requiring respondent to bear these costs. Instead, petitioner argues these costs can be imposed pursuant to the court's authority to order ancillary conditions of release under 18 U.S.C. § 4248(e). (Pet'r Resp. (DE 364) at 12)

The court has determined above that ancillary conditions must be reasonably related to the treatment regimen or monitoring whether the respondent is sexually dangerous to others. Requiring respondent to pay for treatment services or monitoring devices does not meet this standard. While petitioner suggests that paying for treatment services may increase respondent's motivation by providing a financial stake in the process, any such connection is tenuous at best. For example, respondent likely will be more willing to engage meaningfully with treatment if he not concerned about the costs. In any event, petitioner does not explain or provide support for its position that the payment conditions “are appropriate and necessary ․ to ensure respondent's meaningful and truthful participation in treatment.” (DE 364 at 11).

Similarly, petitioner's argument that the payment requirements “will ensure that respondent can obtain and maintain treatment services and other services ancillary to his treatment,” (DE 364 a 11), cannot sustain these conditions. According to petitioner, respondent will receive these services regardless of his ability to pay. (See DE 364 at 12; see also Proposed Plan (DE 362-1) ¶¶ 7, 9, 20(d)). Accordingly, these objections are sustained and the court will delete the payment requirements from the conditional release order.

D. Explanation of Conditions

Finally, respondent asserts in his reply brief that each condition must be “individually explained,” similar to the requirements for announcement of supervised release conditions in the criminal context. (Resp't Reply (DE 366) at 2); see also United States v. Shea, 989 F.3d 271, 281 (4th Cir. 2021) (discussing similar argument). The general rule is that new arguments cannot be raised in a reply brief in the district court. See De Simone v. VSL Pharm., 36 F.4th 518, 531 (4th Cir. 2022). And where the government has not been provided opportunity to respond to this late-breaking assertion, the court will enforce this rule. See id.

In the alternative, respondent was afforded ample opportunity to negotiate the conditions directly with petitioner and present his objections to the court. The court exhaustively addressed his objections above, and respondent points to no statute or case law requiring a hearing in which the conditions are explained on the record in his presence. Accordingly, even if the argument was procedurally proper, it is without merit.

CONCLUSION

Based on the foregoing, respondent's objections (DE 363) are OVERRULED in part and SUSTAINED in part. The objections to the proposed conditions that require respondent to pay for the costs of treatment or monitoring are sustained. The court also sustains in part the objections to condition 33, and directs entry of the revised condition set forth above. All other objections to the plan are overruled. The parties are DIRECTED to submit a revised proposed conditional release plan consistent with this order within 14 days. The proposed plan also should correct the clerical error identified in footnote seven, supra.

SO ORDERED, this the 27th day of December, 2023.

FOOTNOTES

1.   Notably, § 4248(e) applies to conditional release initiated by the “director of the facility” in which the person is civilly committed. By contrast, the court ordered respondent's conditional release after he moved for civil commitment review hearing under 18 U.S.C. § 4247(h). Neither party argues that the court's authority to order conditional release is limited to circumstances where the facility director files a discharge certificate under § 4248(e). In addition, § 4247(h) permits civil detainees to move for hearing “to determine whether the person should be discharged from the facility.” (emphasis added). The unqualified term “discharge” in § 4247(h) can be read to refer to either unconditional or conditional release from civil commitment. Such a construction is consistent with how “discharge” is defined in § 4248(e) and 18 U.S.C. § 4246(e), both of which provide that “discharge” may be conditional and unconditional. Compare § 4247(h) with §§ 4248(e) and 4246(e) (permitting both conditional and unconditional discharge in statutory section labeled “discharge”); see Henson v. Santander Consumer USA Inc., 582 U.S. 79, 85, 137 S.Ct. 1718, 198 L.Ed.2d 177 (2017) (discussing the “usual presumption that identical words used in different parts of the same statute carry the same meaning”) (quotation omitted).

2.   In this order, all internal citations and quotations are omitted from citations, unless otherwise specified.

3.   See Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, tit. II, §§ 212(a)(2), 403(a), 98 Stat. 1837, 2002, 2059, 2062; Perkins, 67 F.4th at 599–609 (discussing legislative history of §§ 4243(f) and 4246(e)). The relevant provision here, § 4248(e), employs identical language and was based on §§ 4246(e) and 4243(f). See Comstock, 560 U.S. at 142–43, 130 S.Ct. 1949.

4.   See note 3, supra.

5.   Petitioner notes that probation will investigate respondent's preferred housing arrangement and may allow transfer to private housing before the 90-day period expires. (Pet'r Resp. (DE 364) at 12).

6.   Respondent presumably would prefer home detention to arrest and return to FCC-Butner for violating the terms of his conditional release order. See 18 U.S.C. § 4248(f).

7.   The proposed plan refers to the definition of sexually explicit conduct in 8 U.S.C. § 2256(2), whereas the correct citation is 18 U.S.C. § 2256(2). The court will correct this clerical error in the final conditional release order.

8.   Respondent does not challenge the second sentence of condition 33 in the proposed plan, and so that condition will not be altered.

LOUISE W. FLANAGAN, United States District Judge