UNITED STATES v. FALL (2024)

MEMORANDUM OPINION & ORDER

Before the Court is Defendant Robert Michael Fall's “Motion for Review of Special Conditions of Supervision” (ECF No. 197). For the reasons explained below, the motion is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

On January 22, 2018, a jury found Defendant Robert Michael Fall guilty of Receipt of Images of Minors Engaging in Sexually Explicit Conduct (Counts Three through Five), Transportation of Images of Minors Engaging in Sexually Explicit Conduct (Count Six), and Possession of Images of Minors Engaging in Sexually Explicit Conduct (Count Seven).¹ ECF No. 89; ECF No. 40. On August 8, 2018, the Honorable Henry Coke Morgan, Jr. sentenced the defendant to 96 months of imprisonment on Counts Three, Four, Five, Six, and Seven, all to be served concurrently, with a period of 20 years of supervised release to follow. ECF No. 112 at 2–3. The court imposed 12 special conditions of supervision and ordered that the defendant pay $500 in assessments and $3,000 in restitution. Id. at 4–5. The court also recommended that the defendant receive sex offender treatment. Id. at 2.

The defendant filed the instant motion asking this Court to review his supervised release conditions, shorten his term of supervised release, and adjudicate other disputes. ECF No. 197. The government opposes the motion. ECF No. 205.

II. LEGAL STANDARD

“District judges exercise significant discretion in setting the length and conditions of supervised release within parameters set by both federal statutes and the Sentencing Guidelines.” United States v. Hamilton, 986 F.3d 413, 417 (4th Cir. 2021). 18 U.S.C. § 3583(d) provides that district courts can impose “any special condition they consider appropriate,” as long as it:

(1) is ‘reasonably related’ to the nature and circumstances of the offense, the history and characteristics of the defendant, and the statutory goals of deterrence, protection of the public, and rehabilitation;

(2) ‘involves no greater deprivation of liberty than is reasonably necessary’ to achieve those goals; and

(3) is ‘consistent with any pertinent policy statements issued by the Sentencing Commission.’

United States v. Olson, 114 F.4th 269, 273–74 (4th Cir. 2024) (quoting 18 U.S.C. § 3583(d)).

A. Requests to Modify Supervised Release Conditions

To challenge a condition of supervised release after it is imposed, a defendant must identify “new, unforeseen, or changed legal or factual circumstances.” United States v. McLeod, 972 F.3d 637, 644 (4th Cir. 2020). Challenges that “rest[ ] on the factual and legal premises that existed at the time of [the defendant's] sentencing” are “impermissible.” Id.

B. Request to Modify the Term of Supervised Release

“18 U.S.C. § 3583 sets out the general authority for district courts to impose a term of supervised release with the maximum length dictated by the felony class.” Hamilton, 986 F.3d at 417. Crimes that involve “a minor victim” or that fall under 18 U.S.C. § 2252A require a minimum supervised release term of five years and carry a maximum term of life. 18 U.S.C. § 3583(k). The court has discretion to terminate or modify a supervised release term before its expiration if, upon review of the record and the relevant factors established in 18 U.S.C. § 3553(a), “it is satisfied that such action is warranted by the conduct of the defendant released and the interest of justice.” 18 U.S.C. § 3583(e)(1).

III. ANALYSIS

The defendant challenges Special Conditions 4 and 7. The motion also asks the Court to review his probation officer's denial of a request for computer access, “hear a dispute” regarding his “restitution [ ] payment;” and “review” the length of his supervised release term. ECF No. 197 at 4. The Court will address each challenge in turn.

A. Special Condition 4: Polygraph Testing

Special Condition 4 requires the defendant to “submit to polygraph testing as directed by the United States Probation Office as part [of] his therapeutic treatment.” ECF No. 112 at 4. The defendant argues that this condition amounts to “cruel and unusual punishment” and asserts that “some circuits have found this to be a violation of the [F]ifth [A]mendment.” ECF No. 197 at 3.

No court of appeals has found polygraph examinations unconstitutional as a condition of supervised release. Therefore, the defendant has not identified “new, unforeseen, or changed legal or factual circumstances” that would allow the Court to revisit Special Condition 4. United States v. Castellano, 60 F.4th 217, 223 (4th Cir. 2023). However, the Court will briefly address the polygraph requirement anyway, because it figures into the analysis on the defendant's request to modify Special Condition 7.

The Fourth Circuit has approved of using polygraph examinations where, as here, they are “not aimed at gathering evidence to inculpate or exculpate” the defendant but “[r]ather, the test is contemplated as a potential treatment tool” during the term of supervised release. United States v. Dotson, 324 F.3d 256, 261 (4th Cir. 2003). That is precisely what Special Condition 4 does.

Further, the defendant is free to invoke his Fifth Amendment privilege in response to any question—as part of a polygraph examination or otherwise—if a truthful answer would expose him to prosecution for a crime besides the ones for which he is already convicted. See Minnesota v. Murphy, 465 U.S. 420, 435 (1984); cf. United States v. Kennedy, 372 F.3d 686, 696 (4th Cir. 2004) (recognizing that the privilege against self-incrimination extends to questions about a conviction that is pending on direct appeal).² Thus, Special Condition 4 does not contravene the defendant's Fifth Amendment rights. Accord United States v. Lee, 315 F.3d 206, 213 (3d Cir. 2003) (“A probationer may not refuse to answer a question just because his answer would disclose a violation of probation,” but he “may [ ] invoke his privilege against self-incrimination if a truthful answer would expose him to a prosecution for a crime different from the one on which he was already convicted”). For these reasons, motion will be DENIED as to Special Condition 4.

B. Special Condition 7: Access to Pornographic Materials

Special Condition 7 provides: “The defendant shall not have any access to or possess any pornographic material or pictures displaying nudity or any magazines using juvenile models or pictures of juveniles.” ECF No. 112 at 4. The defendant asks the Court to “review” this condition because he has “come to understand the 4th Circuit has found this to be a deprivation of [his] rights.” ECF No. 197 at 2.

Here the defendant meets the threshold requirement to seek modification of the special condition. In 2020, the Fourth Circuit held that “[r]estrictions on otherwise legal pornography are permissible under § 3583(d) where the district court adequately explains why they are appropriate, and the record supports such a finding.” United States v. Van Donk, 961 F.3d 314, 322 (4th Cir. 2020). Then in 2021, the Fourth Circuit established that a similar special condition was “inadequately supported and explained” where the government “only presented that the pornography ban was necessary to avoid ‘occasions of sin’ ” and presented no “testimony from a witness responsible for [the defendant's] treatment.” United States v. Ellis, 984 F.3d 1092, 1099 (4th Cir. 2021); see id. at 1095 (holding that, absent such evidence, a legal pornography ban was not reasonably related to the § 3583(d)(1) sentencing factors and was overbroad under § 3583(d)(2)); see also Castellano, 60 F.4th at 223–24 (describing Van Donk and Ellis). Finally last year, the Fourth Circuit found that a district court abused its discretion in imposing a special condition of supervised release identical to one at issue in the instant case, where “[t]he government didn't offer any individualized evidence ․ linking [the defendant's] consumption of adult pornography and his risk of viewing child pornography.” Castellano, 60 F.4th at 225. Judge Morgan did not have the benefit of any of these decisions applying 18 U.S.C. § 3583(d). Thus, given the “changed legal ․ circumstances,” the Court will review Special Condition 7. McLeod, 972 F.3d at 644.

Like the district court in Castellano, Judge Morgan was silent as to the reasons he imposed a condition restricting the defendant's access to legal pornography. See ECF No. 125 at 24:1–22 (sentencing transcript); see also ECF No. 211 at 35:24–36:15 (government acknowledging that “nothing [was] said” at the defendant's sentencing hearing that could aid this Court in determining whether Judge Morgan made “an individualized assessment [ ] on the front end”). Therefore, the Court finds Special Condition 7 overbroad for purposes of 18 U.S.C. § 3583(d)(2) and concludes that the record does not demonstrate the condition is reasonably related to the § 3583(d)(1) sentencing factors. See Ellis, 984 F.3d at 1095.

In Castellano, the Fourth Circuit directed the district court to strike the special condition related to legal pornography. 60 F.4th at 226 (“declin[ing] to give the government another chance to bolster the record on remand”). But in that case, the issue arose after the district court had already sentenced Mr. Castellano for violating the legal pornography condition. Id. at 221. So there was no room for the district court to take evidence, make an individualized finding, craft a new condition that would survive scrutiny, and then consider whether the defendant would have violated the revised condition. Thus, the remedy had to be to resentence the defendant as though the condition had never existed.

Here, the circumstances are different. The defendant has not been found in violation of Special Condition 7, and no petition alleging such a violation is pending. So unlike in Castellano, this Court can look back at the record that existed at sentencing, make the individualized finding Judge Morgan did not know he ought to have made, and fashion a legal condition of supervised release that will apply going forward.

The Court has reviewed the entire record available at the time of sentencing and taken additional evidence from “a witness responsible for [the defendant's] treatment.”³ Castellano, 60 F.4th at 225; Ellis, 984 F.3d at 1099. For the reasons outlined below, it finds that a limited restriction on the defendant viewing legal pornography is appropriate.

At a hearing on the defendant's motion, the Court heard testimony from Lisa Hunt ⁴ —the executive director of the Center for Clinical and Forensic Services (“CCFS”), where the defendant was evaluated and received sex offender treatment. ECF No. 211 at 7:9–10. Ms. Hunt reviewed the defendant's initial assessment, completed by an earlier treatment provider, and a summary of the defendant's participation in treatment with the CCFS. Id. at 18:16–19, 20:17–23. She also spoke with the defendant's CCFS treatment providers and reviewed their records. Id. at 22:9–10.

Ms. Hunt testified that it is “common” for “online offenders” to begin consuming legal pornography, then over time “become increasingly indiscriminate in what they're looking at,” eventually viewing “and sometimes focusing from that point forward on child pornography.” ECF No. 211 at 15:6–15. She described this process as a “slippery slope,” where “the introduction of a pattern of behavior [ ] ultimately results in [a patient] looking at child pornography.” Id. at 15:16–19.

The Fourth Circuit has rejected “slippery slope” reasoning from the court as a justification for conditions of supervised release that bar access to legal pornography, Castellano, 60 F.4th at 225, and has found the government's argument to that effect—absent “individualized evidence”—insufficient to meet the reasonably-related standard under 18 U.S.C. § 3583(d). Ellis, 984 F.3d at 1100. But here, the Court has “testimony from a witness responsible for [the defendant's] treatment” that comes to the same conclusion.⁵ Castellano, 60 F.4th at 225; Ellis, 984 F.3d at 1099.

Moreover, Ms. Hunt explained that the “goal” of sex offender treatment is to “interrupt” this pattern “so that the progression doesn't occur again.” ECF No. 211 at 15:20–22. And she agreed that “typically,” restriction on legal pornography is appropriate for an individual like the defendant, with “a documented history of looking at prepubescent child pornography” for a long period of time—at least “until [the treatment provider] know[s] more about this particular defendant.” Id. at 23:3–10.

Critically, the Court also has evidence that this particular defendant exhibits the “common” connection between consumption of legal pornography and consumption of child pornography. ECF No. 211 at 15:6–15. Ms. Hunt testified that the large “volume of material” the defendant possessed, along with documented access to child pornography that “extended over a [long] period of time” indicates “compulsivity” in the defendant's behavior. Id. at 24:10–23. And though the defendant has never admitted to any of the acts for which he was convicted, he did “acknowledge[ ]” to his treatment provider that “he had looked at adult pornography.” Id. 21:22–22:3.

Additionally, evidence discovered along with the defendant's cache of child pornography supports Ms. Hunt's hypothesis that the defendant's “compulsivity” is linked to initial consumption of legal pornography. ECF No. 211 at 24:20. Investigators determined “the defendant possessed 1,316 images” that included “age difficult depictions”—meaning the subjects of the images could have been either minors or adults. ECF No. 105 ¶ 11 (SEALED). And in addition to search terms that explicitly and implicitly reference children, the defendant's Google searches included “Pic of hot guy” and “Nude pics of hot guy”—terms with no age specification. Id. ¶ 12.

Based on the testimony of an experienced treatment provider responsible for overseeing the entity that treats the defendant and who reviewed all of his treatment to date—coupled with corroborating evidence in the record—the Court finds that some restriction on viewing legal pornography is “ ‘reasonably related’ to the nature and circumstances of the offense” and “the history and characteristics of the defendant.” Olson, 114 F.4th at 273–4 (quoting 18 U.S.C. § 3583(d)). However, at this juncture, the Court cannot determine exactly what kinds of legal pornography (if any) the defendant could safely view or how long a condition restricting access to legal materials will be necessary.

This case highlights an aspect of the reasonably-related assessment the Fourth Circuit has not yet fully elucidated: what district courts should do when individualized evidence is limited because of a defendant's exercise of their Fifth Amendment privilege. The Court concludes that in such circumstances, it must tailor a condition as narrowly as possible given the information that it has, and that it may be prudent to allow for later modifications as additional information becomes available.

Based on guidance from the Association for Treatment of Sexual Abusers, which establishes standards for assessments and treatment, ECF No. 211 at 11:6–21, treatment through CCFS begins with “a sexual history or specific-issue polygraph,” which allows the treatment provider to tailor a course of treatment that is “closely linked to their personal characteristics,” id. at 17:6–12. The results of this diagnostic polygraph examination would seem to be the ideal type of evidence for determining an appropriate condition of supervised release. See 18 U.S.C. § 3583(d) (requiring conditions of supervised release to be “no greater deprivation of liberty than is reasonably necessary” to achieve the goals of deterrence, protection of the public, and rehabilitation); see also Castellano, 60 F.4th at 225 (emphasizing the importance of “individualized evidence linking pornography to [the defendant's] criminal conduct or rehabilitation and recidivation risk”) (citation and quotation marks omitted).

But the defendant has not taken the initial polygraph examination, and as of the date of the hearing on the instant motion, he remains unwilling to fully participate in that aspect of treatment. See ECF No. 211 at 22:16–23 (Ms. Hunt explaining that providers “couldn't enforce [the defendant] taking a polygraph, because of pending legal action” and when “asked to discuss” his behavior the defendant “didn't want to respond to them because of pending legal action”); 48:17–21 (defense counsel stating that the defendant will not waive his Fifth Amendment right to answer every question in the examination); see also supra Part III.A. (discussing the defendant's belief that the polygraph examination would be ‘cruel and unusual punishment’). Thus, the Court is left with evidence that links the offense conduct to the defendant's consumption of legal pornography but nothing to indicate how to further tailor a condition of supervised release to the defendant's particular needs. Therefore, the Court must be careful to balance imposing an appropriate restriction based on the evidence before it against imposing an overbroad condition. See Castellano, 60 F.4th at 216 (explaining why the original condition would be overbroad).

That does not mean, however, that the Court cannot impose any condition related to legal pornography at all. It cannot be that, despite evidence indicating some restriction on viewing legal pornography is necessary under 18 U.S.C. § 3583(d), the Court is nonetheless unable to create a legal condition unless and until the defendant waives his privilege against self-incrimination and fully submits to treatment. That outcome would allow defendants to avoid conditions of supervised release simply by advancing nonmeritorious appeals and petitions to prolong the period during which the privilege applies. Cf. United States v. Kennedy, 372 F.3d at 696; see also ECF No. 195 (finding that “the record conclusively demonstrates that [the instant defendant] is not entitled to relief” on his habeas petition and denying a certificate of appealability). Moreover, allowing exercise of the privilege to prevent the Court from imposing a reasonably related condition could result in defendants receiving less tailored treatment than necessary—which would run counter to the purpose of the individualized evidence requirement.

As Ms. Hunt explained, treatment providers employ restrictions on legal pornography “until [they are] able to determine that [a patient's] use of pornography is not risk-related and that it doesn't contribute to [their] engaging in harmful or unhealthy behavior.” ECF No. 211 at 14:1–8. After that point, the restriction may be “modif[ied] ․ with certain boundaries”). Id. Thus, it may be possible for the defendant to “demonstrate[ ] over the course of an extensive period of time in treatment the internal control mechanisms to manage [his] behavior,” which could lead his treatment provider to conclude the defendant can safely consume some types of legal pornography. Id. at 27:25–28:2. But this step, too, involves “maintenance polygraphs to verify” compliance with the contours of the permission. Id. at 27:25–28:8. And in any event, the “first step” to determining whether the defendant can safely view legal pornography in the future would be for him to “acknowledge[ ] [his] behavior.” Id. at 23:23.

With this in mind, the Court will revise the Special Condition 7 to be as narrowly tailored as possible given the evidence it has regarding the link between the offense behavior and the defendant's consumption of legal pornography. And it will allow the restriction to iterate, if appropriate, as the defendant's treatment progresses. Going forward, the defendant shall be subject to Revised Special Condition 7:

The defendant shall not view or possess any “visual depiction” of any “sexually explicit conduct” (as both terms are defined in 18 U.S.C. § 2256), including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means. If at any point during the period of supervised release the defendant's treatment provider determines that this condition is no longer necessary, or if such provider determines that the defendant can safely view or possess specific types of visual depictions of sexually explicit conduct, the Probation Officer shall so inform the Court. But in no event shall the defendant be permitted to view or possess any visual depiction of a minor engaging in sexually explicit conduct.

18 U.S.C. § 3583(d) does not require conditions of supervised release that fit the defendant's circumstances perfectly. In requiring that conditions be “reasonably related to the offense conduct, the defendant's history and characteristics, and the statutory goals of deterrence, protection of the public, and rehabilitation,” Olson, 114 F.4th at 274 (quotation marks omitted), the law recognizes that courts will always have an incomplete picture of these things. And that is especially true in cases like this one, which involve complicated psychological dynamics that the defendant's treatment providers have barely begun to unwind. Similarly, § 3583(d) leaves some breathing room for courts who are doing the best they can to minimize restrictions while advancing the goals of supervised release. See § 3583(d)(2) (requiring “no greater deprivation of liberty than is reasonably necessary”). If new information arises showing that consumption of legal pornography is no longer a risk for the defendant or that a narrower restriction would serve the goals of sentencing just as well, Probation is empowered to request that Revised Special Condition 7 be modified, to allow the defendant to view some legal pornography.

Finally, Revised Special Condition 7 is “consistent with [the] pertinent policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3583(d)(2). U.S.S.G. § 5D1.3(d)(7) recommends the following special conditions of supervised release when the offense of conviction is a sex offense:

(A) A condition requiring the defendant to participate in a program approved by the United States Probation Office for the treatment and monitoring of sex offenders.

(B) A condition limiting the use of a computer or an interactive computer service in cases in which the defendant used such items.

(C) A condition requiring the defendant to submit to a search, at any time, with or without a warrant, and by any law enforcement or probation officer, of the defendant's person and any property, house, residence, vehicle, papers, computer, other electronic communication or data storage devices or media, and effects upon reasonable suspicion concerning a violation of a condition of supervised release or unlawful conduct by the defendant, or by any probation officer in the lawful discharge of the officer's supervision functions.

The Court's revised condition is aligned with the recommendations of the provider responsible for the defendant's treatment. It takes into account the fact that the defendant used a computer to access child pornography and allows his treatment provider to recommend permission to view legal pornography through different media if the provider determines doing so would not pose a risk to the defendant's health or to the community. And any future modification would comport with the Sentencing Commission's recommendations regarding searches of such media to ensure compliance.

For these reasons, the Court will grant in part the defendant's request for review of Special Condition 7 and impose a modified condition as described above.

C. Denial of Computer Access

Special Condition 5 provides:

The defendant shall not possess or use a computer to access any online computer services at any location, including employment, without the prior approval of the probation officer. This includes any internet service providers, bulletin board systems, or any other public or private computer network or any successor to the electronic distribution of information which may develop during his period of supervised release.

The defendant does not appear to challenge the validity of this condition itself. Rather, he asks the Court to review his probation officer's “denial of use of computer,” because the officer “has not given a good reason for denying access.” ECF No. 197 at 1–2.

Probation offered the defendant an opportunity to use a computer for school as long as that computer is equipped with monitoring software, but the defendant did not agree. ECF No. 205 at 5. Instead, the defendant argues that if he were permitted to access a computer, his probation officer “would be able to search the computer at any time” under Special Condition 11. ECF No. 197 at 2.

Special Condition 11 provides:

Pursuant to the Adam Walsh Child Protection and Safety Act of 2006, the defendant shall submit to a search of his person, property, house, residence, vehicle, papers, computer, or any electronic communication device or data storage devices or media, and without a warrant at any reasonable time during normal working hours.

ECF No. 112 at 4. A search pursuant to this condition requires the probation officer to visit the defendant in person and sift through the data on his devices. It is designed to enable Probation to periodically assess the defendant's performance on supervised release, but it is a poor instrument for monitoring day-to-day compliance.

Presently, constant monitoring is the only viable means to achieve deterrence, protection of the public, and rehabilitation if the defendant has access to a computer. See 18 U.S.C. § 3583(d). The defendant used a computer to access child pornography for over 10 years. See ECF No. 105 ¶ 20 (SEALED) (placing the defendant's earliest offense conduct in 2002). He amassed a collection of 323 images and 2,992 videos containing child pornography as well as 881 images and 4,118 videos containing child erotica and/or age difficult depictions. Id. ¶ 13 (SEALED). And he still has not accepted responsibility for his conduct. See ECF No. 164-1 at 7-8 (defendant suggesting, more than three years after he was convicted by a jury, that his niece was responsible for the material found on his devices). Against this backdrop, it is eminently reasonable for Probation to require monitoring as a condition of permitting the defendant access to a computer.

Moreover, period searches pursuant to Special Condition 11 would not suffice, because the defendant has demonstrated he will go to great lengths to hide or destroy evidence of his conduct. See ECF No. 105 ¶ 8 (After the defendant spoke to detectives and declined to consent to a search of his home, the petitioner's neighbor saw “a male climb out onto the roof of [the petitioner's residence] from an open window, throw a laptop on the roof, and then jump off the roof and flee.”). Given these circumstances, the Court finds that Probation's denial of computer access pending the defendant's consent to computer monitoring is warranted.

D. Restitution

The defendant asks the Court to hear a restitution dispute. He states that the Commonwealth of Virginia encumbered a DMV reimbursement of $34.12 to fulfill a restitution payment, such that only $16.04 was credited to the defendant. He would like the remaining $18.

The Court's Restitution Order provides that “the Government may enforce restitution at any time.” ECF No. 111 at 3. The $18 was deducted from the defendant's DMV reimbursement to account for administrative fees. ECF No. 205-2 at 1. The defendant does not contest the government's accounting, nor does he dispute that the Restitution Order permits collection of administrative fees in this manner. It appears he simply would prefer to have the $18. Finding no basis to return the administrative fee, the Court will deny the defendant's request.

E. Sex Offender Registration and Notification

The defendant asks the Court to “review the [Sex Offender Registration and Notification Act (“SORNA”)] about collecting email addresses and telephone numbers” because a “circuit[ ] has found this to go against the Constitution.” ECF No. 197 at 4.

Preliminarily, the defendant fails to identify any “new, unforeseen, or changed legal or factual circumstances” that would justify the Court revisiting this condition. McLeod, 972 F.3d at 644. Additionally, it is unclear what constitutional challenge the defendant lodges at SORNA, and the Court finds no such violation. Finding no grounds to disrupt the registration requirements under SORNA, the Court will deny this request.

F. Length of the Supervised Release Term

Lastly, the defendant asks the Court to review his 20-year term of supervised release because Judge Morgan “never said on the record why [he] should have twenty years supervision.” ECF No. 197 at 4. The Court finds no basis to modify the term of supervised release.

As an initial matter, the defendant's supervised release term falls within the statutory range for offenses involving minor victims. 18 U.S.C. § 3583(k). And Judge Morgan did provide a basis for the length of supervised release at the time of sentencing: He explained that “the lengthy period of supervised release is necessary because the defendant has not fully accepted responsibility, and the first step in curing someone ․ of the habit of looking at child pornography is to admit that you're doing it and trying to do something about it.” ECF No. 125 at 24.

Moreover, the record indicates that the defendant has not made significant progress since his sentencing. The defendant is still struggling to accept responsibility, and as a result, he has not engaged in treatment for nearly a year. Therefore, the Court finds that reducing the defendant's supervised release term would not be in the “interest of justice.” 18 U.S.C. § 3583(e)(1).

IV. CONCLUSION

Defendant Robert Michael Fall's Motion for Review of Special Conditions of Supervision (ECF No. 197) is GRANTED IN PART and DENIED IN PART.

Special Condition 7 is MODIFIED as described herein. The remainder of the defendant's requests are DENIED.

IT IS SO ORDERED.

FOOTNOTES

1.   The jury found the defendant guilty on a second count of Possession of Images of Minors Engaging in Sexually Explicit Conduct (Count Eight), but the government later dismissed that count. ECF No. 104 at 14–15 (order granting motion to dismiss).

2.   The defendant's direct appeal has already been denied. United States v. Fall, 955 F.3d 363 (4th Cir. 2020); see also ECF No. 134 (order denying motion for rehearing en banc). However, appeal of this Court's ruling on a habeas petition under 28 U.S.C. § 2255 is still pending before the Fourth Circuit. See ECF Nos. 195 (Memorandum Opinion and Order denying § 2255 petition), 198 (notice of appeal). The habeas petition appears to argue, in part, that the defendant is actually innocent of the charges on which the jury convicted him. ECF No. 164-1 at 7–8 (asserting, as part of his claim that he was denied his right to testify at trial, that the defendant would have suggested to the jury that his niece may have used his computer to view child pornography). In the event the defendant's appeal on the habeas petition were successful, a possible remedy would be vacatur of his convictions. In that extremely unlikely circumstance, the defendant could be prosecuted again for the same crimes he was convicted of at trial. Thus, the Court concludes that the defendant's Fifth Amendment right to refuse to answer questions about the offense conduct in this case still attaches, unless and until his appeal on the habeas petition is complete. See Kastigar v. United States, 406 U.S. 441, 444–45 (1972) (The Fifth Amendment “can be asserted in any proceeding, civil or criminal ․ and it protects against any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.”).

3.   The Fourth Circuit has not articulated what it means to be “responsible for” a defendant's treatment. Castellano, 60 F.4th at 225; Ellis, 984 F.3d at 1099. A treatment provider who works with the defendant directly would certainly qualify; however, it seems to this Court that a qualified provider who works in a supervisory capacity must also be appropriate—at least where that provider has reviewed all the defendant's treatment records. The instant case demonstrates why. Here, the defendant has worked with a number of different treatment providers over time—at CCFS and elsewhere. If the Court were to receive evidence from only one of them, it could miss out on critical details, even though the provider would have one-on-one experience with the defendant. Alternatively, the testimony of a qualified witness who oversees the defendant's treatment providers can potentially provide a comprehensive assessment of his progress, even though she does not work directly with the defendant. For these reasons, the Court determines that Ms. Hunt is a “witness responsible for the defendant's treatment.” Id.

4.   Ms. Hunt has a master's degree in counseling and is a Ph.D. candidate in criminal justice with a concentration in behavioral sciences. ECF No. 211 at 8:24–9:3. Her academic work focuses on “online offenders.” Id. She is a certified sex offender treatment provider and has been working in the field since 1997. Id. at 11:3–5; 10:15–17. In her current role, Ms. Hunt oversees clinical staff that provides treatment to between 400 and 450 sex offenders, including the defendant. Id. at 10:5–16.

5.   Ms. Hunt's testimony about the behavioral pattern that connects consumption of legal pornography with consumption of child pornography was based on her experience in the field of sex offender treatment, “the available research,” and “some of [the] oldest principles of behavior modification.” ECF No. 211 at 15:23–16:3.

Jamar K. Walker, United States District Judge