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U.S. v. JOHNSON

January 5, 2005.

UNITED STATES,
v.
JEFFREY A. JOHNSON, Defendant.



The opinion of the court was delivered by: THOMAS McAVOY, District Judge

MEMORANDUM — DECISION and ORDER

I. INTRODUCTION

  Defendant Jeffrey A. Johnson ("Johnson") pled guilty to Counts One (Travel with the Intent to Engage in a Sexual Act with a Minor in violation of 18 U.S.C. § 2423(b)) and Three (Interstate Transportation of Pornographic Material of a Minor in violation of 18 U.S.C. § 2252(a)(1)) of a three count Indictment, and all counts in a separate ten count Information (Counts 1, 2, and 3 charged Johnson with Coercion and Enticement of a Minor to Engage in Sexual Acts in violation of 18 U.S.C. § 2422(b); Count 4 charged Travel with the Intent to Engage in a Sexual Act with a Minor in violation of 18 U.S.C. §§ 2423(b) and 2246(2); Counts 5, 6, 7 and 8 charged the Interstate Transportation of Pornographic Material of a Minor in violation of 18 U.S.C. §§ 2252(a)(1) and 2256(2); Count 9 charged the Possession of Pornographic Materials Depicting Minors in violation of 18 U.S.C. §§ 2252(a)(4) and 2256; and Count 10 was a forfeiture charge). Defendant was sentenced to a term of imprisonment of eighty-eight months, followed by three years of supervised release. Defendant's sentence was affirmed upon appeal. United States v. Johnson, 221 F.3d 83 (2d Cir. 2000).

  The original conditions of Defendant's supervised release prohibited him from possessing or using a computer to access any on-line computer service (including at his place of employment) without the prior approval of his probation officer. Apparently responding to the Second Circuit's decisions in United States v. Peterson, 248 F.3d 79 (2d Cir. 2001) and United States v. Sofsky, 287 F.3d 122 (2d Cir. 2002), cert. denied, 537 U.S. 1167 (2003), the United States Probation Office ("Probation") recommended a modification to the terms and conditions of Defendant's supervised release. As is relevant hereto, the new terms and conditions of supervised release are as follows:
1. You shall participate in a mental health program, which will include, but will not be limited to, participation in a treatment program for sexual disorders. The program shall be approved by the United States Probation Office. . . .
7. You shall not use or possess any computer or any other device with online capabilities, at any location, except at your place of employment, unless you participate in the Computer Restriction and Monitoring Program. You shall permit the United States Probation Office to conduct periodic, unannounced examinations of any computer equipment you use or possess, limited to all hardware and software related to online use (e.g., use of the World Wide Web, e-mail, instant messaging, etc) and the viewing of pictures or movies that may violate your conditions of supervised release, except at your place of employment. These examinations may include retrieval and copying of data related to online use, the viewing of pictures and movies, and potential violations of the terms and conditions of supervised release from this computer equipment and any internal or external peripherals. This computer equipment may be removed to the Probation Office for a more thorough examination. The Probation Office may install any hardware or software system that is needed to monitor your computer use, subject to the limitations described above.
8. If your employment requires the use of a computer, you may use a computer in connection with the employment approved by the probation officer, at your place of employment, provided you notify your employer of: (1) the nature of your conviction; and (2) the fact that your conviction was facilitated by the use of the computer. The probation officer must confirm your compliance with this notification requirement.
Defendant subsequently requested reconsideration of the modified terms and conditions of supervised release and also requested a stay of the new terms pending appeal. These requests were denied.

  Matters were complicated when Condition 1 clashed with Condition 7. Specifically, based upon their individual assessment of Defendant, his history, and his progress in treatment, the mental health treatment provider approved by Probation, Tompkins County Mental Health Services ("TCMHS"), required that Defendant not have access to the Internet as part of treatment and the preparation of a safety plan. When Defendant refused to agree to this request and TCMHS came to learn that Defendant had been less than forthcoming with them,*fn1 Defendant was terminated from the treatment program and sought to obtain his own mental health provider. This particular provider, Dr. Richard Maxwell, has not been approved by Probation, as is required by Condition 1.*fn2 Defendant's selected mental health provider has opined that access to the Internet is not an impediment to Defendant's treatment at this time.*fn3 Probation has accepted TCMH's determination and taken the position that Defendant should not have access to the Internet. Defendant contends that Probation's position directly contravenes Condition 7, which permits Internet access under certain circumstances. To lay a proper record and make an informed decision, the Court ordered a hearing on the issue of the relatedness of Defendant's mental health treatment and Internet access.

  II. THE HEARING

  A hearing was held on December 29, 2004 and January 3, 2005, at which time Defendant and the government were afforded the opportunity to present and cross-examine witnesses and to present other pertinent evidence.

  The government's witness, Linda Riley, who supervised Defendant's treatment program and was involved in Defendant's group therapy program at TCMHS, testified that Defendant presents as a high risk for re-offending. Riley offered several reasons for her opinion. Many of the reasons were based on the nature of Defendant's offense — he went to great lengths to chat with minors, he went to great lengths to engage in sex with minors (traveling long distances around the country), his crimes involved manipulation, etc. Riley also provided several reasons pertaining to his post-offense behavior: although Defendant admitted committing the crimes in the Indictment, he has not come to terms with his offense behavior; he has not identified risk causing behavior; he has not sufficiently accepted the risk he presents to re-offend; he is unable to recognize when he enters the offense cycle; he has not developed the internal controls (i.e. self control) necessary to avoid and/or prevent behavior likely to lead to re-offending; he has not responded well to external controls (e.g., in the past, he continued his efforts to contact minors for sexual discussion and/or contact despite being aware of the possibility that he might actually have been chatting with law enforcement personnel, rather than minor females); he has deflected personal accountability onto the legal system; he has been less than forthcoming in the treatment program; and he continues to act in a secretive manner concerning his sexual activity, which is characteristic of sexual offenders.*fn4 It is Riley's opinion that Defendant has not sufficiently progressed to a point where he can safely be "weaned" onto using the Internet and without posing a high risk to minors on the Internet.

  Riley further opined that group therapy (which was being provided, in part, by Riley) is the nationally recognized and recommended form of treatment for male, adult sex offenders; that Defendant does not fit within an exception to this recommendation; and that individual therapy would be inappropriate because it provides an opportunity for Defendant to manipulate the therapist and does not enable the offender to have the benefit of the views and comments of other offenders who have had similar experiences and are able to "call out" the offender on any thought errors or attempts to internalize or explain away actions consistent with the offense cycle. Riley stated that a prohibition on Internet access is not an automatic, blanket prohibition, but is based on the individual's characteristics. Thus, depending on progress in therapy, a person could gain access to the Internet.

  The government then offered Nancy Wayman as a witness. Wayman also participated in the evaluation and treatment of Defendant at TCMHS. To save time, the government indicated that Wayman would testify in substantially the same manner as Riley. Thus, the government suggested that Wayman not take the stand, unless Defendant wished to cross-examine her. Defendant declined the opportunity to put Wayman on the stand and did not object to the government's assertion that her testimony would be substantially similar to that of Riley.

  The government also offered the expert testimony of Catherine Diana, a licensed social worker who specializes in the treatment of sex offenders. Diana's testimony was consistent with that of Riley. She opined that someone in Defendant's situation is appropriately classified as a high risk of re-offending (for substantially the same reasons stated by Riley) and that group therapy is the appropriate treatment modality for an individual such as Defendant. Diana expressed concern that, based on the information provided to her, access to the Internet would increase the risk of offending behavior until such time as the offender is able to identify the offense cycle, understand why he offended, and understand how he overcame internal and external barriers. Diana opined that someone in Defendant's position not be given access to the Internet until that person was able to accept adequate responsibility, understand the motivation for his behavior, understand what triggers offensive behavior, make significant changes in his lifestyle, and work through any denials.

  Defendant called Dr. Maxwell as his sole witness. Maxwell is a psychologist with a general practice. Maxwell met with Defendant on five separate occasions to evaluate him for ongoing treatment. Maxwell has not provided any treatment to Defendant. By his own admission, Maxwell is not an expert in treating adult, male sex offenders. Most of Maxwell's practice deals with counseling married couples. Throughout his career, Maxwell has only treated three adult sex offenders (a fourth case involved an adolescent sex offender). As previously noted, Maxwell was unfamiliar with the treatment standards promulgated by the Association for the Treatment of Sex Offenders ("ATSA").*fn5

  Maxwell did not disagree with the treatment provided by TCMHS or with the opinions of Diana. He did opine, however, that someone who spent six years in prison and underwent significant changes to their life as a result of offending conduct is likely to have some short-term internal controls for fear of returning to prison and further upending their life. Thus, Maxwell was most concerned in developing a long-term plan. Maxwell believed that the greatest risk was in the long term. In accordance with this opinion, Maxwell stated that he would allow Defendant to access the Internet, subject to monitoring. According to Maxwell, this would provide important information concerning Defendant's actual behavior on the Internet. In other words, observing his behavior would give the clearest picture into his ability to control himself.

  Maxwell admitted that he did not know whether Defendant is a pedophile or a sexual addict, and that this distinction would make a difference in his opinion concerning treatment and Internet access. If Defendant is found to be a pedophile, this would increase the risk associated with Internet access. Maxwell also stated that, if Defendant was allowed on the Internet and accessed sexually explicit content or attempted to arrange a sexual rendezvous, he would recommend that Defendant be prohibited from accessing the ...


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