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Gjurovich v. United States

October 1, 2009

ETHAN J. GJUROVICH, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

On May 18, 2001, petitioner, pled guilty to a two count indictment charging him with transporting child pornography in violation of 18 U.S.C. § 2252A(a)(1) and possession of child pornography in violation of 18 U.S.C. § 2252(a)(5)(B). In October 2001, petitioner was sentenced by this Court to seventy (70) months incarceration on Count One and (60) months incarceration on Count Two to run concurrently followed by three (3) years of supervised release. Petitioner did not appeal his conviction or sentence. Petitioner filed the present motion to dismiss the petition filed by the United States Probation Office for modification of the conditions or terms of his supervised release. Specifically, petitioner objects to the Probation Office's request that he submit to computerized voice stress analysis ("CVSA"), in addition to regular polygraph examinations, as a further special condition of his release in the community. According to the Probation Office, CVSA "is the most recent supervision tool being utilized for 'truth verification' and is consistent with the 'containment approach,' which has been clearly identified as the most effective method of maintaining and monitoring sex offenders in the community." Petitioner argues that CVSA is not reasonably related to the need to: 1) afford adequate deterrence; 2) protect the public from future crimes; or 3) provide petitioner with needed education, vocational training, medical care or other correctional treatment in the most effective manner. Further, petitioner contends that CVSA is not a reliable method of truth verification.

Prior to modifying the conditions of a convicted person's supervised release, a court must hold a hearing pursuant to Fed. R. Crim. P. 32.1(c), unless a hearing is expressly waived. In the present case, the parties have agreed to address by way of written submissions the issue whether petitioner's conditions of release may be modified.

II. Discussion

The federal statute which guides district courts in the matter of modifying or revoking terms or conditions of supervised release is 18 U.S.C. § 3583(e):

The court may, after considering the factors set forth in section 3553(a)... modify, reduce, or enlarge the conditions of supervised release, at any time prior to the expiration or termination of the term of supervised release, pursuant to the provisions of the Federal Rules of Criminal Procedure relating to the modification of probation and the provisions applicable to the initial setting of the terms and conditions of post-release supervision.

18 U.S.C. § 3583(e). The relevant sentencing "factors" a court is required to consider as set forth in 18 U.S.C. § 3553(a) when modifying or revoking the terms and conditions of supervised release are:

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;

(2) the need for the sentence imposed-

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional ...


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