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United States of America v. Russell Jennings

July 22, 2011


Consolidated appeals from two judgments entered in the United States District Court for the Northern District of New York, Thomas J. McAvoy, Judge, one convicting defendant of possessing child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2), and the other revoking the supervised release to which defendant had been sentenced on a prior conviction for violation of § 2252A(a)(5)(B) and imposing a prison term, to be followed by a life term of supervised release, for violations of his prior supervised-release conditions.

The opinion of the court was delivered by: Kearse, Circuit Judge:

10-1642-cr (L)

USA v. Jennings

Argued: April 12, 2011

Before: KEARSE, MINER, and CHIN, Circuit Judges.


Defendant Russell Jennings appeals from two April 2010 judgments of the United 11 States District Court for the Northern District of New York, Thomas J. McAvoy, Judge. The first 12 judgment, dated April 22 and entered on April 28 following a conditional plea of guilty, convicted 13 Jennings of possessing child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2) and 14 sentenced him principally to 130 months' imprisonment, to be followed by a life term of supervised 15 release ("Child Pornography Judgment II"). The second judgment, dated April 22 and entered on 16 April 28 after Jennings had admitted violating several conditions of a supervised-release term imposed 17 on him in a November 1, 2006 amended judgment convicting him of a prior § 2252A(a)(5)(B) offense 18 ("Child Pornography Judgment I"), revoked his supervised release and sentenced him to 60 months' 19 imprisonment, to be served concurrently with the prison term imposed in Child Pornography 20 Judgment II, and to be followed by a life term of supervised release (the "Supervised-Release- 21 Violation Judgment"). On his appeal challenging Child Pornography Judgment II, Jennings contends 22 principally (1) that the district court should have dismissed the indictment on the ground that it was 23 procured by his probation officer (or "P.O.") acting in excess of the P.O.'s statutory and constitutional 24 authority; and (2) that, absent dismissal of the indictment, certain self-incriminating statements 2 1 Jennings made to his probation officer, as well as evidence seized pursuant to a search warrant 2 obtained on the basis of those statements, should have been suppressed on the ground that his 3 statements were protected by the Fifth Amendment privilege against self-incrimination. In 4 challenging the Supervised-Release-Violation Judgment, Jennings argues that the severity of the 5 penalties it imposed reflected his new conviction and that those penalties should be reduced if Child 6 Pornography Judgment II is vacated. Finding no merit in Jennings's challenges to Child Pornography 7 Judgment II, we affirm both judgments.


Except as indicated, the following events, which are reflected principally in records 10 of the United States Probation Office ("Probation Office" or "USPO"), in affidavits submitted by 11 Jennings's probation officer at various stages, and in an affirmation submitted by Jennings's attorney, 12 are not in dispute.

A. Jennings's 2006 Conviction and His Supervised Release

In the fall of 2006, following his plea of guilty in the United States District Court for 15 the Northern District of New York before David N. Hurd, Judge, Jennings was convicted on one count 16 of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and was sentenced 17 principally to a term of 21 months' imprisonment, to be followed by a 20-year term of supervised 18 release (the "2006 case"). The specified terms of supervised release included the conditions that 19 Jennings "shall not commit another federal, state or local crime"; "shall answer truthfully all inquiries 3 1 by the probation officer and follow the instructions of the probation officer"; and "shall not use or 2 possess any computer or any other device with online capabilities, at any location, except at his place 3 of employment, unless [he] participates in the Computer Restriction and Monitoring Program." Child 4 Pornography Judgment I, at 3-4. Paragraph 5 of the "Special Conditions of Supervision" also 5 provided as follows:

The defendant shall participate in a mental health program, which will include, but will not be limited to, participation in a treatment program for 8 sexual disorders. The program shall be approved by the United States 9 Probation Office.

The defendant's supervised release may include examinations using 11 polygraphs to obtain information necessary for supervision, case monitoring, 12 and treatment. The defendant shall answer the questions posed during the 13 polygraph examination, subject to his right to challenge in a court of law the 14 use of such statements as violations of the defendant's Fifth Amendment rights.

In this regard, the defendant shall be deemed to have not waived his Fifth 16 Amendment rights. The results of any polygraph examinations shall be 17 disclosed to the United States Probation Office and the Court, but shall not be 18 further disclosed without the approval of the Court.

Id. at 4 (emphasis added) ("Special Condition ¶ 5"). In April 2008, Jennings began serving his term 20 of supervised release and moved into his brother's home in Afton, New York. 21 In January 2009, the Probation Office filed a petition in the 2006 case for 22 modifications--consented to by Jennings--of his supervised-release conditions in order to, inter alia, 23 expand the permitted information-gathering methods beyond polygraphs. The petition, signed by 24 Jennings's probation officer, Michael J. Pierce, stated that Jennings had "failed as deceptive" a 25 polygraph examination in July 2008 and that Jennings had "admitted during the post test interview 26 to sexual abuse of all four of his children (two boys and two girls) from a very early age." (USPO 27 Request for Modifying the Conditions or Term of Supervision with Consent of the Offender 28 ("Modification Petition") at 2.) The Modification Petition stated that although Jennings was 4 1 "progressing in treatment and . . . writing apology letters to his children," the probation officer 2 "believed that the defendant requires modification of his conditions to hold him accountable, aid in 3 the monitoring process, and enhance the protection of the community." (Id.)

Judge McAvoy granted the petition. The second paragraph of Special Condition ¶ 5 was renumbered 5(a), the first sentence of which, as revised, read as follows:

Your supervised release may include examinations using a polygraph, 7 computerized voice stress analyzer, or other similar device to obtain 8 information necessary for supervision, case monitoring, and treatment. 9 Order dated January 16, 2009 ("Modification Order"), at 1 (emphasis of modification added). The 10 substance of Special Condition ¶ 5's passages with regard to the preservation of Fifth Amendment 11 rights "during" any such "examination" remained the same. Id.

In addition, whereas the original supervised-release conditions required Jennings to 13 permit "a probation officer" to visit him in his home or elsewhere and "permit confiscation of any 14 contraband observed in plain view of the probation officer," Child Pornography Judgment I, at 3, the 15 Modification Petition requested, and the district court ordered, the addition of a paragraph requiring 16 Jennings to submit "to search" by a probation officer and allowed the probation officer to enlist the 17 aid of "other law enforcement officer[s]" for such searches, Modification Order at 2:

11. You shall submit your person, and any property, house, residence, 19 vehicle, papers, computer, other electronic communications or data storage 20 devices or media, and effects to search at any time, with or without a warrant, 21 by any federal probation officer, or any other law enforcement officer from 22 whom the Probation Office has requested assistance, with reasonable suspicion 23 concerning a violation of a condition of probation or supervised release or 24 unlawful conduct by you. Any items seized may be removed to the Probation 25 Office or to the office of their designee for a more thorough examination.

Id. (emphases added). Another new paragraph provided as follows:

12. While in treatment and for the remainder of the term of supervision following completion of treatment, you shall not view, possess, own, subscribe 2 to or purchase any material, including pictures, videotapes, films, magazines, 3 books, telephone services, electronic media, computer programs, or computer 4 services that depict sexually explicit conduct, as defined in 18 U.S.C. 2256(2).

Modification Order at 2 (emphases added).

B. Jennings's 2009 Admissions While on Supervised Release

On February 12, 2009, Pierce notified Jennings that he was to appear for a computer 8 voice stress analyzer ("CVSA") examination the following week. Around the time that Jennings 9 received that message, he attended a group therapy session at which a speaker, discussing his own 10 addiction to child pornography, emphasized the importance of being honest about one's behavior. 11 Inspired by the speaker's message, Jennings admitted during the therapy session that he had accessed 12 pornography, including teen porn, on his brother's computer five to seven times.

13 The counselor leading the therapy session instructed Jennings to inform his probation 14 officer of his actions; the counselor said that if Jennings failed to do so within a week, she would 15 report Jennings's admission to Pierce directly--and she did contact Pierce on February 18. In the 16 meantime, on February 16, Jennings left a telephone message for Pierce, who returned the call the 17 next day. During the February 17 conversation, Jennings admitted that he had previously lied to 18 Pierce about whether he had viewed pornography on his brother's computer. Pierce instructed 19 Jennings to come to the probation office to discuss the matter further.

20 On February 19, Jennings reported to the probation office and made additional 21 admissions. He told Pierce that he had used his brother's computer to, inter alia, access and view child 22 pornography 10-15 times since July 2008, to search the Internet for pornographic videos featuring 23 teenagers, and to try--in vain--to access teen chat rooms. Jennings was subjected to a CVSA 6 1 examination, which he failed by showing deceptiveness with regard to, inter alia, having sexual 2 thoughts about his 14-year-old daughter, being ...

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