Sexual predation against minors

United States 2nd Circuit Court of Appeals Reports

U.S. v. JOHNSON, 446 F.3d 272 (2nd Cir. 2006) UNITED STATES of America, Appellee, v. Jeffrey A. JOHNSON, Defendant-Appellant. Docket Nos. 04-4992 CR, 05-0248(L), 05-0256(CON). United States Court of Appeals, Second Circuit. Argued: October 17, 2005. Decided: May 1, 2006.

Appeal from the United States District Court for the Northern District of New York, Thomas J. McAvoy, J. Page 273

[EDITORS’ NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Page 274

Bruce R. Bryan, Syracuse, NY, for Defendant-Appellant Jeffrey A. Johnson.

Robert P. Storch, Assistant United States Attorney (Glenn T. Suddaby, United States Attorney for the Northern District of New York, of counsel, Thomas Spina, Jr., Assistant United States Attorney, on the brief), for the United States of America.

Before: JACOBS, CABRANES, and SACK, Circuit Judges.

DENNIS JACOBS, Circuit Judge.

Jeffrey A. Johnson (“Johnson”) is currently serving three
years of supervised release, imposed by the United States
District Court for the Northern District of New York
(Thomas J. McAvoy, Judge) as part of his sentence for
sexual predation against minors. He challenges certain
modifications to his conditions of supervised release.[fn1]
Johnson argues that: (i) mandatory polygraph testing to
ensure compliance with the terms of his supervised release
is not reasonably related to the purposes of sentencing and
is a violation of his Fifth Amendment rights against
self-incrimination; (ii) a bar on direct or indirect
contact with minors is unconstitutionally vague; and (iii) a
ban on using any computer with Internet access is an
excessive deprivation of liberty.

BACKGROUND

a. Johnson’s Criminal History

Johnson is a convicted sex offender. He is also an
Aerospace Engineer and a sophisticated user of computers.
Between 1995 and 1997, Johnson used the Internet Page 275
to conduct sexually-explicit conversations with minors, and
to lure several of them to meetings. He had sex with two
minors and was arrested while on his way to have sex with a
third.

Johnson pleaded guilty and was principally sentenced to 88
months in prison to be followed by three years of
supervised release. Conditions governing Johnson’s
supervised release were ordered in three waves. At
sentencing, the court imposed three conditions: (1) that
Johnson participate in a mental health evaluation and/or
treatment program; (2) that Johnson not associate with any
individual under the age of 18 (except by permission of his
probation officer); and (3) that Johnson not possess or use
a computer to access any on-line computer service (except
by permission of his probation officer).

On July 22, 2004, the Probation Department petitioned for
several modifications to Johnson’s conditions of supervised
release: (1) mandatory sex-offender treatment using
polygraph testing “to obtain information necessary for risk
management and treatment”; (2) a prohibition on direct or
indirect contact with minors and presence in areas in which
minors are likely to congregate (such as schools, child
care centers, and playgrounds); and (3) relaxation of the
previous total ban on Johnson’s computer use if Johnson
participated in the Computer Restriction and Monitoring
Program, which would have allowed the Probation Office to
install software aimed at monitoring his computer use.
Johnson challenged all of these modifications.

b. Polygraph Testing

Johnson objected to polygraph testing on two grounds.
First, he argued that, without use and derivative use
immunity, he could be deprived of his Fifth Amendment
rights against self-incrimination and face the dilemma of
confessing his sins or remaining silent (and going to jail
for violating a condition of supervised release). Second,
Johnson argued that the district court should not impose
polygraph testing because such testing is unreliable and
not reasonably related to the purposes of sentencing, and
therefore cannot be employed in a special condition of
supervised release.

The district court agreed with the Probation Department on
the benefits of polygraph testing, but partially
accommodated Johnson’s Fifth Amendment concern by adding
certain safeguards. The court limited the scope of
examinations to “information necessary for supervision,
case monitoring, and treatment,” and made clear that
(though Johnson would be compelled to answer) “if a
truthful answer would expose him to a prosecution for a
crime different from the one on which he was already
convicted,” he would preserve his “right to challenge in a
court of law the use of such statements as violations of
his Fifth Amendment rights” — or, “[i]n other words,
[Johnson] must answer the questions posed to him, but, by
answering, he will not be waiving his Fifth Amendment
rights with respect to any criminal prosecution unrelated
to the conviction for which he is now on supervised
release.” Johnson appeals these rulings.

c. Ban on Direct and Indirect Contact with Minors

The second modification sought by the Probation Department
was to prohibit “any direct or indirect contact with a
person under age 18.” Johnson challenged this proposed
modification as both vague and impossible: vague, because
it “provides no notice to [him] as to what conduct he is
prohibited from engaging in”; impossible, because “the
possibilities for making inadvertent `indirect’ contact
with persons under age 18 are a virtual certainty upon
Page 276 [his] leaving his house and conducting normal day
to day business.”

The district court agreed with Johnson that “the word
`indirect’ casts too broad of a net” and modified Johnson’s
conditions to require that he “reasonably avoid and/or
remove himself from situations in which he has indirect
contact with a minor.” The modified conditions also require
that “[Johnson] shall not have any direct contact with a
person under the age of 18 unless it is supervised by a
person approved of by the probation officer.” The
modification also takes into account the indeterminacy of
the word “indirect” by decreeing that Johnson “shall not
have indirect contact with a person under the age of 18
through another person or through a device (including a
telephone, computer, radio, or other means) unless it is
supervised by a person approved of by the probation
officer.” (emphasis added). Johnson argues that in spite of
the district court’s stated objective, the plain language
of the modification still allowed for inadvertent
violation. The government supports the ban as worded.

d. Modification Banning Use of Computers with Internet
Access

Johnson objected to computer monitoring; his objection
became moot when this condition was modified a second time.
In December 2004 the Probation Department, in response to
the comments of treatment officials, requested a further
modification of Johnson’s conditions of supervised release.
The Government sought to bar Johnson from using any
computer with Internet access, until his progress in
treatment reduced his risk of recidivism. The district
court ordered an evidentiary hearing to explore the tension
between Second Circuit precedent guaranteeing minimal
Internet access and the perceived necessity of an outright
ban in this case.

At the two-day hearing, Johnson’s Probation Officer
— Agnes McBride — testified that Johnson was
expelled from treatment by the Tompkins County Mental
Health Clinic (“Treatment Agency”) for failing to agree to
refrain from using the Internet and for otherwise failing
to participate fully in his program. Ms. McBride accused
Johnson of complying with his treatment program
“superficially,” doing what he was specifically asked to do
without “acknowledg[ing] that he needs to make any changes
in his life-style.” Ms. McBride viewed this generally
resistant attitude as a sign that Johnson remained a high
risk to re-offend, and that stepped-up limits on Internet
access were needed.

Linda Riley, a clinic supervisor with the Treatment
Agency, confirmed that an outright ban on Internet access
was needed for Johnson’s treatment: “[T]he Internet is an
instrument of his offending . . . Access to the Internet is
a risk situation because he does not have the internal
controls . . . necessary to not offend.”

Johnson sponsored the testimony of Dr. Richard Maxwell, a
clinical psychologist whose clinical practice centered on
depression, anxiety disorders, and marital problems, and
who devoted only a “small amount” of his practice to sex
offenders. Dr. Maxwell opined that access to the Internet
would allow Johnson to develop socially and professionally,
but conceded that “I don’t . . . really know at this point
. . . whether Mr. Johnson is a pedophile or . . . somebody
with a sexual addiction,” and added that his risk
assessment of Johnson’s Internet use “obviously . . . would
be wrong” “[i]f he’s a pedophile.”

The district court adopted the proposed modification. In
so doing, the court distinguished Second Circuit cases
(which had held outright Internet bans to be overbroad) on
several grounds: use of the Internet in the commission of
Johnson’s previous Page 277 offenses; the severity of
Johnson’s offenses; fear that Johnson — a computer
expert — could circumvent any lesser restriction;
and the treatment necessity for an outright ban.

DISCUSSION

In reviewing conditions of supervised release imposed by a
district court, issues of law are reviewed de novo. United
States v. Lifshitz, 369 F.3d 173, 178 (2d Cir. 2004).
Conditions of supervised release are judged by an abuse of
discretion standard, where any error of law constitutes an
abuse of discretion. United States v. Doe, 79 F.3d 1309,
1319-20 (2d Cir. 1996).

I. Polygraph Testing

Federal sentencing policy requires that conditions of
supervised release impose no greater restraint than
reasonably necessary to promote sentencing goals. We have
never considered whether polygraph testing is a condition
that satisfies this test, nor have we considered whether
such a condition offends the Fifth Amendment right against
self-incrimination.

a. Objectives of Sentencing

The district courts may:

impose special conditions of supervised release to the
extent that they are `reasonably related’ to (i) the
nature and circumstances of the offense and the history
and characteristics of the defendant, and (ii) the
purposes of sentencing, including the need to afford
adequate deterrence, to protect the public from further
crimes of the defendant, and to provide the defendant with
needed training or treatment.

United States v. Germosen, 139 F.3d 120, 131 (2d Cir. 1998)
(citing, inter alia, 18 U.S.C. § 3583(d)). Conditions
of supervised release may restrict liberty to the extent
reasonably needed to achieve the above purposes. Id.; see
also United States v. Lifshitz, 369 F.3d 173, 189 (2d Cir.
2004). Citing the asserted unreliability of the polygraph,
Johnson argues that the condition is not reasonably related
to the pertinent sentencing factors and imposes a greater
deprivation on his liberty than is reasonably necessary.

Other circuits have concluded that polygraph testing may
serve salutary purposes in the supervised release context.
See, e.g., United States v. York, 357 F.3d 14, 22 (1st Cir.
2004); United States v. Dotson, 324 F.3d 256, 261 (4th Cir.
2003); United States v. Lee, 315 F.3d 206, 213 (3d Cir.
2003); United States v. Zinn, 321 F.3d 1084, 1089-90 (11th
Cir. 2003). As Lee explained, a polygraph “may provide an
added incentive for [the offender] to furnish truthful
testimony to the probation officer. Such purpose would
assist the officer in his or her supervision and monitoring
of the appellant.” Lee, 315 F.3d at 213. Obviously, the
incremental tendency of polygraph testing to promote such
candor furthers the objectives of sentencing by allowing
for more careful scrutiny of offenders on supervised
release. Polygraphs have also been found to assist another
sentencing objective: “ensur[ing] compliance with
probationary terms.” Zinn, 321 F.3d at 1090. The lie
detector may deter lying notwithstanding its arguable or
occasional unreliability because of the subject’s fear that
it might work, or be credited by others whether it works or
not. Notwithstanding the preceding case law, Johnson
contends that an assertedly unreliable technology cannot
advance honest discussion or compliance with conditions of
supervised release.

Johnson cites, inter alia, United States v. Scheffer, 523
U.S. 303, 309-10, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998),
for the proposition that polygraph evidence is unreliable.
Page 278 The Scheffer Court noted that studies have
positioned polygraph reliability between greater-than-50%
and 87%. Id. at 310, 118 S.Ct. 1261. Since even the bottom
of the range is still more-likely-than-not, the technology
produces an incentive to tell the truth, and thereby
advances the sentencing goals.

As Johnson points out, polygraph results are inadmissible
as evidence. But that does not much bear on the therapeutic
value of the tool:

[T]he polygraph test . . . is inadmissible in nearly
every circumstance at trial. 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 [the
offender]. Rather, the test is contemplated as a potential
treatment tool upon [an offender’s] release from prison. .
. .

Dotson, 324 F.3d at 261 (emphasis added) (internal citation
omitted). Moreover, the exclusion of polygraph evidence in
many cases has been based in part on a risk of prejudicial
effect. See, e.g., United States v. Kwong, 69 F.3d 663, 668
(2d Cir. 1995); see also United States v. Williams, 95 F.3d
723, 729-30 (8th Cir. 1996). Prejudice is not as salient a
risk in the absence of a jury; generally speaking,
sentencing judges are better equipped to decide what weight
if any to afford polygraph results.

The case for use of polygraph testing is strong here in
light of “the nature and circumstances of the offense and
the history and characteristics of the defendant.”
Germosen, 139 F.3d at 131. The district court crafted
supervised release conditions for a serial offender who
apparently resisted honest self-assessment. Johnson’s
treatment provider labeled Johnson’s attitude “superficial
and not adequately engaged in the recovery process. He has
an increasingly antagonistic attitude. . . . [featuring an]
inadequate level of accountability for his offenses.” The
polygraph can help penetrate deception and encourage an
offender to confront his own motivations and behaviors.
These outcomes further sentencing objectives such as
rehabilitation and deterrence, with reasonably small
incremental deprivations of liberty. We therefore conclude
that polygraph testing can, and in this case does, further
sentencing goals without excessive deprivations of liberty.

b. Fifth Amendment Challenge

Johnson argues that if he commits future offenses, or is
asked about past offenses other than the ones for which he
was convicted, he will be put to the choice of
incriminating himself (by answering polygraph questions
truthfully) or violating supervised release (by answering
untruthfully, or not at all). The first question is whether
this challenge is ripe. See United States v. Antelope, 395
F.3d 1128, 1132 (9th Cir. 2005) (“The constitutional
component of ripeness is a jurisdictional prerequisite.”)
Article III of the Constitution, which limits our
jurisdiction to cases and controversies, precludes
resolution in the absence of “direct and immediate
dilemma.” Marchi v. Bd. of Coop. Educ. Servs., 173 F.3d
469, 478 (2d Cir. 1999). “The mere possibility of future
injury, unless it is the cause of some present detriment,
does not constitute [the requisite] hardship.” Simmonds v.
INS, 326 F.3d 351, 360 (2d Cir. 2003) (emphasis added).

At the moment, Johnson has suffered no injury from
polygraph testing; but he can be injured because he might
end up in jail if he truthfully confesses a new offense
during testing, falsely denies it, or invokes the Fifth
Amendment to avoid answering. Yet, Johnson may not have
committed offenses Page 279 in the past other than those
for which he was convicted, and he may abstain from
criminal activity while on supervised release; even if he
does not, Johnson’s probation officer may never ask a
question sufficiently probing to justify invocation of the
Fifth Amendment, or an incriminating answer may be ignored
by prosecutors, or the district court may find no
supervised release violation.

Although it does not appear that we have previously
considered ripeness in the context of a challenge such as
that made by Johnson, several other circuit courts have
considered similar challenges, and all have found them ripe
for decision, regardless of whether the defendant had yet
suffered penal injury. In Antelope, 395 F.3d at 1132-33,
for example, the Ninth Circuit concluded that a defendant
who had been incarcerated for a refusal to answer questions
that he deemed incriminating while on supervised release
could raise a Fifth Amendment challenge to the revocation
of that release. In United States v. Zinn, 321 F.3d 1084,
1088 (11th Cir. 2003), the Eleventh Circuit deemed ripe the
appeal of a defendant who argued, inter alia, that a
condition of supervised release requiring him to submit to
polygraph examinations violated the Fifth Amendment, even
though the defendant had not yet been released from prison
and therefore had not yet been subject to the challenged
condition. The court concluded that although the defendant
could not yet challenge the precise implementation of the
polygraph condition, id. at 1089, 1091, his general
“challenge to the polygraph exam [was] neither premature
nor speculative.” Id. at 1088; see also United States v.
Davis, 242 F.3d 49, 51 (1st Cir. 2001) (per curiam) (ruling
that although a defendant had not yet been released from
prison and therefore was not yet subject to supervised
release conditions, his challenge to a polygraph condition
was ripe because he “faces a sufficiently direct and
immediate dilemma . . . as he seeks to determine whether
exercising his Fifth Amendment privilege in response to
questions by his probation officer will result in
revocation of his supervised release” (internal quotation
marks and citations omitted)); cf. United States v. Lee,
315 F.3d 206, 210-13 (3d Cir. 2003) (without mentioning
ripeness, entertaining a challenge to a polygraph condition
by a defendant not yet on supervised release).

Generally, a challenge lacks ripeness if it concerns
abstract regulations or if it presents issues that might
never arise. See Motor Vehicle Mfrs. Ass’n v. New York
State Dept. of Envtl. Conservation, 79 F.3d 1298, 1305 (2d
Cir. 1996). A case may be ripe even before formal
enforcement if a “direct and immediate” impact is suffered
from the challenged policy. Abbott Labs. v. Gardner, 387
U.S. 136, 152, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967),
overruled on other grounds, Califano v. Sanders, 430 U.S.
99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). Ripeness is
satisfied by a “direct threat of personal detriment” such
that litigants “should not be required to await and undergo
a criminal prosecution as the sole means of seeking
relief.” Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 35
L.Ed.2d 201 (1973) (emphasis added).

Unless the self-incrimination issue raised by a condition
of supervised release is deemed ripe when it is imposed, an
offender who believes the Fifth Amendment protects his
statements must face the threat of prison, either in a new
criminal prosecution or in a revocation proceeding.
Johnson’s challenge is therefore ripe.

On the merits, though, Johnson fails. Second Circuit
precedent allows the revocation of supervised release of an
offender who fails to answer questions even if they are
self-incriminating. In Asherman Page 280 v. Meachum, 957
F.2d 978 (2d Cir. 1992) (en banc), supervised release was
revoked when the offender refused to answer questions about
a crime for which we assumed he might have been prosecuted.
Id. at 980-81. This Court rejected Asherman’s Fifth
Amendment challenge, reasoning that revocation is an
administrative decision that may be made based on a refusal
to answer relevant questions, so long as the administrator
does nothing to impair the later invocation of the
privilege. Id. at 982-83. The Court explained that the
probation administrator

stayed well within [his] authority . . . by conducting a
relevant inquiry and then taking appropriate adverse
action, not for [the offender’s] invocation of his
constitutional rights, but for his failure to answer a
relevant inquiry. . . . [A] prisoner may be terminated
from home release status for refusing to divulge to a
corrections commissioner information pertinent to the
administration of a home release program.

Id. at 983.

Johnson’s dilemma is harsh but it is not of constitutional
salience. The only distinction between Asherman and this
case is the polygraph. But as Johnson admitted at oral
argument, the use of the lie detector has no impact on
Fifth Amendment considerations. Asherman therefore applies
directly. The polygraph condition at issue here conforms to
Asherman by preserving Johnson’s “right to challenge in a
court of law the use of [incriminating] statements as
violations of his Fifth Amendment rights.”

II. The Bar on Direct and Indirect Contact

The district court tried to make Johnson “cognizant of the
requirement that he reasonably avoid and/or remove himself
from situations in which he has indirect contact with a
minor.” (emphasis added). This goal was implemented in the
following four modifications:

3. You shall not have any direct contact with a person
under the age of 18. . . .

4. You shall not have indirect contact with a person
under the age of 18 through another person or through a
device (including a telephone, computer, radio, or other
means). . . .

5. You shall reasonably avoid and remove yourself from
situations in which you have any other form of contact
with a minor.

6. You shall not be in any area in which persons under
the age of 18 are likely to congregate, such as school
grounds, child care centers, or playgrounds. . . .

(emphasis added). Johnson challenges the direct and
indirect contact conditions of his supervised release as
unconstitutionally vague. According to Johnson, “the
condition of supervised release is missing language
pertaining to . . . intent or awareness,” such that
“Johnson might innocently or unintentionally have indirect
contact with a minor that would violate [a] condition of
supervised release.”

The Due Process clause requires that “Conditions of
supervised release . . . `give the person of ordinary
intelligence a reasonable opportunity to know what is
prohibited, so that he may act accordingly.'” United States
v. Balon, 384 F.3d 38, 43 (2d Cir. 2004) (quoting United
States v. Simmons, 343 F.3d 72, 81 (2d Cir. 2003)).
However, conditions need not “be cast in letters six feet
high, or . . . describe every possible permutation, or . .
. spell out every last, self-evident detail. Conditions . .
. may afford fair warning even if they are not precise to
the point of pedantry.” Page 281 United States v. Gallo,
20 F.3d 7, 12 (1st Cir. 1994).

In response to Johnson’s concerns, the district court
expanded on the wording sought by the government, and
specified that “indirect” contact includes contact through
a device (such as a phone) or through an intermediary (such
as another person). The court thus refined the term to
involve some purposeful initiative. As so modified, even
the maximal scope of the contact provisions allows a person
of ordinary intelligence to know what is prohibited.

When Johnson protested that the government’s proposed
condition might “result in a violation based on
unintentional conduct,” the court agreed “that the word
`indirect’ casts too broad of a net.” The court’s decision
expressed the intent to limit the modification to ensuring
that Johnson is “cognizant of the requirement that he
reasonably avoid and/or remove himself from situations in
which he has indirect contact with a minor.”

Generally, supervised release provisions are read to
exclude inadvertent violations. In Arciniega v. Freeman,
the Supreme Court assumed that a term barring “association”
with ex-convicts does not cover “incidental contacts.” 404
U.S. 4, 4, 92 S.Ct. 22, 30 L.Ed.2d 126 (1971) (per curiam).
This rule of construction likewise applies here to quiet
Johnson’s concerns.

Finally, the structure of the supervised release
modifications clearly indicates that inadvertent contact
with minors does not (without more) result in a violation.
In addition to the direct and indirect contact provisions,
the district court required Johnson to “reasonably avoid
and remove” himself from situations in which he has any
contact with a minor. If Johnson’s failure to leave
triggers a supervised release violation, it follows that he
may avoid a violation by extricating himself from situations
in which inadvertent contact with minors occurs. Absent an
inadvertent encounter with a minor that is precipitated by
some lack of care to avoid it, the modified conditions
assure that no violation occurs where incidental contact is
followed by immediate removal.

Since the conditions provide clear notice of what conduct
they prohibit and do not demand the impossible, Johnson’s
vagueness challenge fails.

III. Absolute Internet Ban

The new Internet condition required that Johnson “not use
or possess any computer . . . with online capabilities at
any location until . . . cleared to do so” by the district
court. Johnson argues that this outright ban contravenes
several precedents in which this Court has preserved at
least minimal, government-monitored Internet access for
persons on supervised release.

a. Sentencing objective relevance

As already discussed, a condition of supervised release
must be related to sentencing purposes and must impose no
greater restraint on liberty than is reasonably necessary
to accomplish sentencing objectives. United States v.
Germosen, 139 F.3d 120, 131 (2d Cir. 1998). Restrictions on
Internet use may serve several sentencing objectives,
chiefly therapy and rehabilitation, as well as the welfare
of the community (by keeping an offender away from an
instrumentality of his offenses). See generally Lifshitz,
369 F.3d at 189-90 (listing deterrence and rehabilitation
as two benefits of Internet monitoring).

The Internet ban imposed on Johnson serves these
sentencing objectives, confronts Johnson with the need to
take his treatment seriously, and serves as an external
control to predatory Internet behavior, Page 282 standing
in for Johnson’s deficient internal controls. Treatment
officials suggest that such external checks often become
internalized, promoting healthy behavior in the long term.
The question is whether a lesser restraint would do.

b. Minimum Deprivation of Liberty

Several times this Court has vacated absolute bans on
Internet access because narrower restraints were equally
suited to achieving sentencing goals. The district court
distinguished those cases on the ground that nothing less
will effectively curb Johnson’s propensities and protect
the community. On this record, that ruling is sound.

In the case of an offender who had downloaded and
disseminated child pornography through the Internet, an
outright ban was held to be more restrictive than needed to
serve the sentencing goals of rehabilitation and
incapacitation because a combination of monitoring and
unannounced inspections would exert the control of an
Internet ban while allowing an offender access to the
Internet for legitimate purposes. See United States v.
Sofsky, 287 F.3d 122, 126-27 (2d Cir. 2002); see also
United States v. Cabot, 325 F.3d 384, 386 (2d Cir. 2003)
(vacating an Internet ban after the government conceded
that it could not stand under Sofsky); United States v.
Peterson, 248 F.3d 79, 82-84 (2d Cir. 2001) (vacating a
computer and Internet ban, reasoning that, inter alia,
“[t]here [was] no indication that Peterson’s past incest
offense had any connection to computers or to the
Internet.”).

As shown in the thorough record compiled in the district
court, Johnson’s case differs from those cases on two
important grounds: the characteristics of the offender and
the nature of his past offenses.[fn2]

After a two day evidentiary hearing at which both Johnson
and the government called witnesses and presented other
evidence, the district court found, inter alia, that
Johnson was in denial about his risk of re-offending, had
not come to terms with what caused him to commit his
crimes, had been “less than truthful with his mental heath
care providers and with probation,” and had “acted in a
secretive manner concerning his sexual activity.” The
district court also found credible the testimony of
Johnson’s treatment provider that these actions suggested
that Johnson was at a high risk for re-offending. See
United States v. Johnson, No. 97-cr-0206, 98-cr-160, 2005
WL 22680 (N.D.N.Y. Jan.5, 2005). These findings are
supported by the record.

In addition, as Johnson concedes, he is a sophisticated
computer user (and an experienced engineer), and the
district court found that a person with his skills likely
could circumvent the software needed for monitoring.
Johnson’s employer believes that inappropriate Internet
abuse at work “would be noticed very rapidly” due to the
office’s public culture, and it may be that co-workers
would notice if Johnson were accessing and downloading
pornographic images (at least during normal business hours),
and that Johnson would strongly prefer to keep such images
from the sight of others. However, chatting, emailing and
messaging can be conducted without tell-tale screen images,
and co-workers may be gone after work hours or on weekends.
The court did not abuse its discretion Page 283 in
concluding that casual oversight in the workplace would not
control a sex offender who is in need of treatment and who
has engineering and computer skills that could be used to
defeat monitoring by anyone.

In determining what condition of release is reasonably
necessary to protect the community, a court may of course
consider the hazard presented by recidivism. In Sofsky, the
likeliest consequence if a less restrictive measure should
fail would be that the offender would download and
distribute child pornography. Serious as those offenses
are, the direct harm to children was inflicted previously,
when the pornographic images were made, and the lesser harm
caused by trafficking can be largely remedied afterward, by
destroying copies of the material and returning the
offender to prison. In Johnson’s case, the likeliest
consequence if a less restrictive measure should fail is
that Johnson could use the Internet to locate children and
lure them to sexual abuse. The perfectly obvious ground for
distinguishing Sofsky from Johnson’s case is that here the
failure of lesser measures risks direct harm to children
that may be devastating and irremediable.

As the Seventh Circuit observed in United States v. Holm,
326 F.3d 872, 878 (7th Cir. 2003), courts in similar
contexts have recognized the importance of considering
whether a defendant made “outbound use of the Internet to
initiate and facilitate victimization of children.” Compare
United States v. Paul, 274 F.3d 155, 169 (5th Cir. 2001)
(upholding prohibition where the defendant had used the
Internet to provide advice to others on how to find and
obtain access to “young friends”), and United States v.
Crandon, 173 F.3d 122, 127-28 (3rd Cir. 1999) (upholding
prohibition where the defendant had used the Internet to
“develop an illegal sexual relationship with a young girl
over a period of several months”), with United States v.
Freeman, 316 F.3d 386, 391-92 (3rd Cir. 2003) (vacating
prohibition where the defendant was convicted of receipt of
child pornography, and noting that “the defendant in
Crandon [by comparison] had used the Internet to contact
young children and solicit inappropriate sexual contact
with them. Such use of the Internet is harmful to the
victims contacted and more difficult to trace than simply
using the Internet to view pornographic web sites”), and
Holm, 326 F.3d at 874, 879 (vacating prohibition on use of
any computer with Internet capability by a defendant
convicted of possession of child pornography).

We therefore affirm the imposition of the absolute Internet
ban as it has been crafted in this case.

CONCLUSION

We have considered Johnson’s remaining arguments and find
each of them to be without merit. For the foregoing
reasons, the various orders of the district court modifying
conditions of Johnson’s supervised release are affirmed.

[fn1] The pertinent modifications were imposed as part of
two orders. The first order was entered on August 19, 2004
and contained the polygraph and indirect contact
modifications. The second order was entered on January 5,
2005, and contained the Internet-ban modification.

[fn2] We do not hold that an outright ban on Internet use
is categorically appropriate for any sex offender whose
offense involves use of the Internet. We think that, in
light of our recognition that “Internet access ha[s] become
virtually indispensable in the modern world of
communications and information gathering,” Peterson, 248
F.3d at 83, a careful and sensitive individualized
assessment is always required before such a ban is imposed.