UNITED STATES OF AMERICA v.  BRUCE J. RHODES, 07-3953  Bruce Rhodes pled guilty to knowingly possessing a computer hard drive containing video depictions of a minor engaging in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(4). The court sentenced Rhodes to a ten-year term of imprisonment followed by a life term of supervised release.

The court imposed several special conditions of supervised release, and Rhodes now challenges just a portion of one condition-penile plethysmograph testing (known as "PPG" in medical circles)-which he finds particularly invasive for reasons that will be evident when this procedure is described below.

II. Discussion

Penile plethysmograph testing is a procedure that "involves placing a pressure-sensitive device around a man's penis, presenting him with an array of sexually stimulating images, and determining his level of sexual attraction by measuring minute changes in his erectile responses." Jason R. Odeshoo, Of Penology and Perversity: The Use of Penile Plethysmography on Convicted Child Sex Offenders, 14 TEMP. POL. & CIV. RTS. L. REV. 1, 2 (2004). The use of PPG testing "has become rather routine in adult sexual offender treatment programs," United States v. Weber, 451 F.3d 552, 562 (9th Cir. 2006), and courts have upheld conditions requiring offenders to undergo PPG testing under various legal challenges. See Odeshoo, supra, at 20 n.151-52 (collecting cases).

Though the use of PPG is not uncommon, experts disagree as to its effectiveness. "The reliability and validity of this procedure in clinical assessment have not been well established, and clinical experience suggests that subjects can simulate response by manipulating mental images." AM. PSYCHIATRIC ASS'N., DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 567 (4th ed., text revision 2000).

Rhodes objected "for the record" on Fifth Amendment grounds without elaboration. On appeal, he argues that because PPG testing implicates a significant liberty interest, the district court should be required to state that the condition "involves no greater deprivation of liberty than is reasonably necessary." 18 U.S.C. § 3583(d)(2). Rhodes concedes that our standard of review at this stage is from the narrow perspective of plain error because he did not object to the condition on the same grounds that he raises in this appeal. United States v. Schalk, 515 F.3d 768, 776 (7th Cir. 2008).

A district court has the discretion to impose special conditions of supervised release if the condition: (1) is reasonably related to the nature and circumstances of the offense, the history and characteristics of the defendant, and the need to provide adequate deterrence to criminal conduct, protect the public, and rehabilitate the defendant; (2) involves no greater deprivation of liberty than is reasonably necessary for the purposes of deter-rence, public protection, and rehabilitation; and (3) is consistent with any pertinent policy statements issued by the Sentencing Commission. 18 U.S.C. §§ 3553(a), 3583(d).

When crafting a defendant's sentence, the district court is not required to address each factor "in checklist fashion, explicitly articulating its conclusion for each factor," as long as the court's statement of reasons is adequate and consistent with the factors. United States v. PanaiguaVerdugo, 537 F.3d 722, 728 (7th Cir. 2008).

The government argues that we follow the Sixth Circuit's approach in United States v. Lee, 502 F.3d 447 (6th Cir. 2007) and dismiss the claim as unripe. We find the Sixth Circuit's reasoning persuasive and consistent with our approach in United States v. Schoenborn, 4 F.3d 1424 (7th Cir. 1993).  One who invokes the jurisdiction of a federal court must establish, before all else, that he has suffered a concrete and particularized injury; a conjectural one will not do." Id.

As in Lee and Schoenborn, Rhodes's claim is based on a number of contingencies.   Experts already disagree as to which evaluation and treatment methods are the most effective, and we would do well to await a more concrete presentation of this issue.  Rhodes can later petition the district court to modify the condition. Lee, 502 F.3d at 451; 18 U.S.C. § 3583(e)(2); see also Fed. R. Crim. P. 32.1(c).

This is not to say that a defendant can never immediately appeal a condition of supervised release after sentencing. We have entertained such appeals on countless occasions. A few examples-in United States v. Ross, 475 F.3d 871, 875 (7th Cir. 2007), we considered a defendant's appeal of a supervised release condition that he participate in sex offender evaluation and treatment. In United States v. Holm, 326 F.3d 872, 877 (7th Cir. 2003), we addressed a defendant's appeal of a supervised release condition prohibiting him from using the Internet entirely. In United States v. Paul, 542 F.3d 596, 600-01 (7th Cir. 2008), we considered a defendant's appeal of a supervised release condition that he submit to drug testing. In United States v. Schave, 186 F.3d 839, 841-43 (7th Cir. 1999), we considered the defendant's appeal of supervised release conditions prohibiting him from drinking alcohol and associating with white supremacy groups.

In each of these cases, the defendant was sentenced to several years' imprisonment before the challenged terms of supervision commenced, yet we analyzed the propriety of the challenged supervised release conditions at the front end of those sentences. The conditions in each of those cases were determinate.  Therein lies the difference.

Because Rhodes's special condition will only become effective after he serves more than ten years' imprisonment and several other conditions are met, we DISMISS his claim without prejudice as unripe.

 

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about Chicago Criminal Defense Attorney Michael J. Petro, visit www.mjpetro.com.

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