Opinion
15-cr-29-jdp-1
01-04-2018
UNITED STATES OF AMERICA, Plaintiff, v. TODD WILLIAM ORTH, Defendant.
ORDER
A hearing on the probation office's petition for judicial review of Todd William Orth's supervised release was held on September 22, 2017, before U.S. District Judge James D. Peterson. The government appeared by Assistant U.S. Attorney Timothy O'Shea. Defendant was present in person and with counsel, Erika L. Bierma. Also present was Senior U.S. Probation Officer Michael J. Nolan.
From the record I make the following findings of fact.
FACTS
On February 11, 2009, defendant was sentenced in the Northern District of Iowa following his conviction for interstate travel with intent to commit criminal sexual activity with a minor, in violation of 18 U.S.C. §§ 2423(b), 2423(f), 2243(a), and 2246. This offense is a Class B felony. He was committed to the custody of the Bureau of Prisons to serve a term of imprisonment of 87 months, with a 15-year term of supervised release to follow. Defendant began his term of supervised release on November 21, 2014, in the Western District of Wisconsin. On March 4, 2015, jurisdiction was transferred from the Northern District of Iowa to the Western District of Wisconsin.
Defendant stipulated to violating Standard Condition No. 3, requiring him to answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer. On June 28, 2017, defendant's supervising probation officer and the treatment counselor instructed defendant to have no contact with his minor daughter until approval was granted by the treatment counselor and his probation officer. On June 28, 2017, defendant had telephone contact with his minor daughter and continued to have telephone contact with her primarily through short message services (text messaging) through July 11, 2017, without approval. On August 3, 2017, the supervising probation officer asked defendant during a phone conversation whether he had contact with his children and he denied contact. On August 4, 2017, defendant was asked again during a community contact whether he had contact with his children. He admitted to having telephone contact with his minor daughter on July 18, 2017. In a sex offender treatment session, defendant admitted that he was knowingly dishonest with his supervising probation officer and was deceptive with information regarding his contact with his daughter when discussing the issue with his supervising probation officer and the sex offender treatment counselor in the past.
Defendant's stipulated violation is a Grade C violation. Under §7B1.3(a)(2), the Court may revoke or extend the term of supervised release or modify the conditions of supervision upon a finding of a Grade C violation.
During the hearing, the parties also addressed defendant's inappropriate physical contact with his minor daughter. On June 28, 2017, defendant and U.S. Probation Officer Michael Nolan met with a sex offender treatment counselor for a counseling session. Defendant disclosed that he had touched his daughter's breast while waking her up in the morning, and he described an incident during which he cuddled with his daughter while he was naked under sheets of his bed while she was on top of the sheets. The treatment counselor also asked defendant about websites that he had visited, specifically www.incesttaboo.com. Defendant indicated that he was aroused by incest. The treatment counselor expressed serious concerns about the safety of Mr. Orth's minor daughter in light of the inappropriate contact and defendant's sexual interests and history. At the hearing, the treatment counselor testified that defendant had not been fully and forthrightly engaged in his therapy. Based on these concerns, defendant's sex offender counseling was increased to two sessions per week. The government did not contend that this physical contact constituted additional violations of defendant's conditions of supervision because it could not prove that defendant intended the contact for sexual purposes.
The court also took testimony from defendant's daughter's counselor. She expressed the view that the daughter had begun to develop a stronger relationship with defendant since his incarceration, and that it would be healthy for the daughter to continue to develop this relationship. The counselor did not support a complete bar on contact between defendant and his daughter, although the counselor had not been aware of the allegations of inappropriate physical contact.
CONCLUSIONS
Defendant's stipulated violation is serious in light of his offense of conviction. The court is also very concerned about defendant's inappropriate physical contact with his daughter and his lack of full, honest engagement in his therapy.
Defendant's criminal history category is I. With a Grade C violation, defendant has an advisory guideline term of imprisonment of 3 to 9 months. Under 18 U.S.C. § 3583(e)(3), the statutory maximum to which defendant can be sentenced upon revocation is three years because his underlying offense is a Class B felony. I am persuaded that at this point the court's concerns are best addressed by a modification of the conditions of supervision, with some additional guidance to defendant and the supervising officer.
Accordingly, the conditions of supervised release imposed on February 11, 2009, are rescinded and replaced with the conditions proposed in Dkt. 4, as further modified at the hearing. Specifically, the court declines to impose special condition no. 8 requiring placement in a residential re-entry center. The court modifies special condition no. 2 to prohibit defendant from accessing any form of internet pornography, and to prohibit possession of pornography unless therapeutically appropriate and approved by the supervising officer. The conditions imposed are restated in the order section below. Defendant waived reading of the conditions at the hearing.
The court also provides some additional guidance for the benefit of defendant and the supervising officer. The court expects defendant to sincerely, fully, and honestly engage in recommended therapy. Defendant will have to demonstrate engagement with and progress in therapy before the supervising officer approves contact with his minor children, and the amount of contact and the nature of that contact will depend on the degree of engagement and progress in therapy. The court expects that for a period of time defendant will increase the frequency of his treatment sessions.
In consultation with defendant's therapist, the supervising officer should prepare a plan that will allow phased-in contact with defendant's minor children, so long as this contact is not counterproductive to defendant's therapy or the well-being of the children. The contact is to begin with monitored electronic communication, with the long-term objective of allowing in-person contact. The supervising officer should also consider information provided by defendant's daughter's therapist. The court requests further reports from the supervising officer as appropriate, including one within 30 days of this order. I will leave the format of reports to the discretion of the supervising officer. If the supervising officer recommends revocation or any amendment to the conditions of supervision the report must be in writing. But otherwise the supervising officer may report to the court as he sees fit.
ORDER
IT IS ORDERED that the conditions of supervised release imposed on defendant on February 11, 2009, are RESCINDED, and REPLACED with the conditions stated below.
Pursuant to the Seventh Circuit Court of Appeals decisions in United States v. Thompson, et al., 777 F.3d 368 (7th Cir. 2015), a sentencing judge must give a reason, consistent with the sentencing factors set forth at 18 U.S.C. § 3553(a), for any non-mandatory condition of supervision.
Standard conditions of supervision, as set forth in 18 U.S.C. §§ 3563(b) and 3583(d), have been established by policy of the Judicial Conference, as informed by U.S. Sentencing Commission policy statements in §§5B1.3 and 5D1.3. The U.S. District Court for the Western District of Wisconsin has adopted some modifications as a result of recent Seventh Circuit case law. These conditions, adopted from 18 U.S.C. §§ 3563(b) and 3583(d) and numbered below, identify the basic requirements, expectations, and limitations for defendants and address corresponding risk-related or recidivism-related factors. The conditions provide probation officers with the means to monitor the conduct of defendants who are under court-ordered supervision by matching supervision and programming to factors correlated with risk. The following discretionary conditions, along with the mandatory conditions of supervised release, are reasonably related to the offense of conviction, as well as the personal history and characteristics of defendant.
| STANDARD CONDITIONS OF SUPERVISION | JUSTIFICATION | |
| 1) | Defendant shall not leave the judicial district inwhich defendant is being supervised without thepermission of the Court or probation officer. | To provide community protection,rehabilitation for defendant, and toenable the supervising probationofficer's statutory duty to keepinformed of defendant's location,conduct, condition, and compliance.18 U.S.C. § 3553(a)(1), (a)(2)(B) and(C); 18 U.S.C. § 3563(b)(14); 18U.S.C. § 3603(2) and (7); USSG§5B1.3(b)(1)(A), (C), (D) and (b)(2);USSG §5D1.3(b)(1)(A), (B), (C) and(b)(2). |
|---|---|---|
| 2) | Defendant is to report to the probation office asdirected by the Court or probation officer andshall submit a complete written report within thefirst five days of each month, answer inquiries bythe probation officer, and follow the officer'sinstructions. The monthly report and the answerto inquiries shall be truthful in all respects unless afully truthful statement would tend to incriminatedefendant, in violation of defendant'sconstitutional rights, in which case defendant hasthe right to remain silent. | To provide community protection,rehabilitation for defendant, to ensureofficer and defendant safety, and toenable the supervising probationofficer's statutory duty to keepinformed of defendant's location,conduct, condition, and compliance. 18U.S.C. § 3553(a)(1), (a)(2)(B), (C) and(D); 18 U.S.C. § 3563(b)(15) and (17);18 U.S.C. § 3603(2), (3), (4) and (7);USSG §5B1.3(b)(1)(B)(C), (D), (E) and(b)(2); USSG §5D1.3(b)(1)(B), (C), (D)and (b)(2). |
| 3) | Defendant shall maintain lawful employment, seeklawful employment, or enroll and participate in acourse of study or vocational training that willequip defendant for suitable employment, unlessexcused by the probation officer or the Court. | Evidence based practice researchindicates that lawful, stableemployment and education are pro-social activities that reinforce therehabilitation of defendant.Employment and education have beenidentified as risk factors for recidivism.18 U.S.C. § 3553(a)(2)(B), (C) and (D);18 U.S.C. § 3563(b)(4) and (5); 18U.S.C. § 3603(2), (3), (4) and (7);USSG §5B1.3(b)(1)(C), (D) and (E);USSG §5D1.3(b)(1)(B), (C) and (D). |
|---|---|---|
| 4) | Defendant shall notify the probation officer withinseventy-two hours of any change in residence,employer, or any change in job classification. | To provide community protection,rehabilitation for defendant, to ensureofficer and defendant safety, and toenable the supervising probationofficer's statutory duty to keepinformed of defendant's location,conduct, condition, and compliance. 18U.S.C. § 3553(a)(2)(C); 18 U.S.C. §3563(b)(13), (15), (16) and (19); 18U.S.C. § 3603(2), (3), (4) and (7);USSG §5B1.3(b)(1)(D) and (b)(2);USSG §5D1.3(b)(1)(C). |
| 5) | Defendant shall not purchase, possess, use,distribute, or administer any narcotic or othercontrolled substance, or any paraphernalia relatedto such substances, except as prescribed by aphysician. | Evidence based practice researchindicates the use of illicit chemicals is arisk factor for recidivism. Thiscondition is recommended to assist withdefendant's rehabilitation, officer anddefendant safety, and to protect thepublic. 18 U.S.C. § 3553(a)(1),(a)(2)(A), (B) and (C); 18 U.S.C. §3563(b)(7); 18 U.S.C. § 3603(3); USSG§5B1.3(b)(1)(A), (B), (C) and (D);USSG §5D1.3(b)(1)(A), (B) and (C). |
| 6) | Defendant shall not visit places where defendantknows or has reason to believe controlledsubstances are illegally sold, used, distributed, oradministered. | Evidence based practice researchindicates that frequenting places whereillicit chemicals are sold, used,distributed or administered increasesthe risk that defendant will purchase,use or possess illicit chemicals.Individuals involved in the distributionof illicit chemicals present a risk of peerassociation as identified in the research.This condition supports rehabilitation ofdefendant and promotes public safety.18 U.S.C. § 3553(a)(1), (a)(2)(B) and(C); 18 U.S.C. § 3563(b)(6); 18 U.S.C.§ 3603(3); USSG §5B1.3(b)(1)(A), (B),(C), (D) and (b)(2); USSG§5D1.3(b)(1)(A), (B) and (C). |
|---|---|---|
| 7) | Defendant shall not meet, communicate, or spendtime with any persons defendant knows to beengaged in criminal activity or planning to engagein criminal activity. | Evidence based practice researchindicates that association with peersinvolved in criminal activity increasesthe risk of recidivism. This conditionpromotes and encourages pro-socialrelationships that are conducive to alaw-abiding lifestyle. 18 U.S.C. §3553(a)(1), (a)(2)(A), (B) and (C); 18U.S.C. § 3563(b)(6); 18 U.S.C. §3603(3); USSG §5B1.3(b)(1)(B), (C)and (D); USSG §5D1.3(b)(1)(B) and(C). |
| 8) | Defendant shall permit a probation officer to visitdefendant at home, work, or elsewhere at anyreasonable time and shall permit confiscation ofany contraband observed in plain view by theprobation officer. | Community contacts ensure compliancewith court-ordered conditions and assistdefendant in maintaining a law-abidinglifestyle. 18 U.S.C. § 3553(a)(1),(a)(2)(A), (B), and (C); 18 U.S.C. §3563(b)(13), (15), (16) and (17); 18U.S.C. § 3603(2), (3), (4) and (7);USSG§ 5B1.3(b)(1)(A), (B), (C), (D)and (b)(2); USSG §5D1.3(b)(1)(A),(B), (C) and (b)(2). |
|---|---|---|
| 9) | Defendant shall notify the probation officer withinseventy-two hours of being arrested or questionedby a law enforcement officer. | To provide for community safety andrehabilitation of defendant. 18 U.S.C. §3553(a)(1), (a)(2)(A), (B) and (C); 18U.S.C. § 3563(b)(18); 18 U.S.C. §3603(2), (3), (4) and (7); USSG § 5B1.3(b)(1)(A), (B), (C) and (D); USSG §5D1.3 (b)(1)(A), (B) and (C). |
| 10) | As directed by the probation officer, defendantshall notify third parties of risks that may beoccasioned by defendant's criminal record orpersonal history or characteristics. The probationofficer may also take steps to confirm defendant'scompliance with this notification requirement orprovide such notifications directly to third parties. | To protect the public from furthercrimes perpetrated by defendant. 18U.S.C. § 3553(a)(1), (b)(2)(A), (B) and(C) ; 18 U.S.C. § 3563(b)(3), (4), (5),(6), (13) and (16); in a case of crimesagainst property 18 U.S.C. § 3555; 18U.S.C. § 3603(2), (3), (4) and (7);USSG §5B1.3(b)(1)(A), (B), (C) and(D) and (b)(2); USSG §5D1.3(b)(1)(A),(B), (C) and (b)(2). |
| SPECIAL CONDITIONS OF SUPERVISION | JUSTIFICATION | |
| 1) | Provide the supervising U.S. probation officeradvance notification of any devices associated with orfalling within the general category of informationtechnology (IT) that produce, manipulate, store,communicate or disseminate information and that hewill use during the term of supervision. Theprobation office is authorized to install anyapplication as necessary on any such devices ownedor operated by defendant and shall randomly monitorthose media. Defendant shall consent to andcooperate with unannounced examinations of anytechnological equipment owned or used by him,including but not limited to retrieval and copying ofall data from all information technology devices andany internal or external peripherals. Theexaminations may involve removal of such equipmentfor the purpose of conducting examination. | Based on the offense of convictionand the need to protect the publicfrom further criminal activityperpetrated by the defendant, asevidenced by his noncompliance. |
|---|---|---|
| 2) | Not possess any child pornography, as defined in 18U.S.C. § 2256(8); not access any form of pornographythrough the internet; not possess any materialcontaining sexually explicit conduct as defined in 18U.S.C. § 2256(2), including pictures, photographs,books, writings, drawings, videos, and video games,unless deemed to be therapeutically appropriate andexpressly approved by the supervising probationofficer. | Based on the offense of convictionand the need to protect the publicfrom further criminal activityperpetrated by the defendant. |
| 3) | Defendant shall not own, use or have access to theservices of any commercial mail receiving agency andhe shall not open or maintain a post office boxwithout the prior approval of the supervisingprobation officer. | Based on the offense of convictionand the need to protect the publicfrom further criminal activityperpetrated by the defendant. |
| 4) | Not associate with any person under the age of 18 orhave verbal, written, telephonic or electroniccommunication with any such person, except with theexpress permission of the minor's parent or legalguardian and the supervising U.S. probation officer.This provision does not include persons under the ageof 18, such as waiters, cashiers, ticket vendors, etc.,with whom defendant must deal with in order toobtain ordinary and usual commercial services. | Based on the offense of convictionand the need to protect the publicfrom further criminal activityperpetrated by the defendant. |
|---|---|---|
| 5) | Have no contact with his adolescent children inperson, through written or electronic communication,or through a third party, unless authorized by thesupervising U.S. probation officer and the sexoffender therapist. | Based on the offense of convictionand the need to protect his childrenfrom further criminal activityperpetrated by the defendant andfurther support sex offendertreatment based on his identifiedsexual proclivities and diagnosis. |
| 6) | Defendant shall register with local law enforcementauthorities, the state attorney general and the state'ssex offender registry as directed by the supervisingprobation officer | Based on the offense of convictionand the need to monitor defendant'scompliance with local, state, andfederal laws. |
| 7) | Defendant shall submit his person, residence, office orvehicle to a search conducted by a U.S. Probationofficer at a reasonable time and in a reasonablemanner whenever the probation officer hasreasonable suspicion of contraband or of the violationof a condition of release; failure to submit to a searchmay be a ground for revocation; defendant shalladvise any other residents that the premises he isoccupying may be subject to searches pursuant to thiscondition. | Based on the nature of the offense ofconviction, the need to protect thepublic from further criminal activityperpetrated by the defendant assuggested by his criminal history,and the need to ensure the safety ofthe supervising U.S. probationofficer. It is noted that several itemsof contraband have been seizedduring the term of supervision. |
| 8) | Undergo a psychosexual evaluation, which mayinvolve use of Abel Screen and polygraph orplethysmograph examinations, or similar technology,as approved by the supervising U.S. probation officer.Defendant shall participate in and successfullycomplete an outpatient sex offender counselingprogram if recommended by the evaluator, asapproved by the supervising U.S. probation officerand the treatment provider. | Based on the offense of convictionand the need to protect the publicfrom further criminal activityperpetrated by the defendant. |
|---|---|---|
| 9) | Not work in an occupation, business or profession, orparticipate in a volunteer activity where he has accessto children under the age of 18 without priorapproval of the supervising U.S. probation officer. | Based on the offense of convictionand the need to protect the publicfrom further criminal activityperpetrated by the defendant. |
Defendant is to be registered with local law enforcement agencies and the state attorney general before his release from confinement.
Entered January 4, 2018.
BY THE COURT:
/s/ James D. Peterson
James D. Peterson
U.S. District Judge