USA v. Thomas

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Criminal Action No. 19-cr-00397-CMA
UNITED STATES OF AMERICA,
Plaintiff,
v.
JOEL THOMAS,
Defendant.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO
MODIFY SUPERVISED RELEASE CONDITIONS
This matter is before the Court on Defendant Joel Thomas’s Motion to Modify
Supervised Release Conditions (Doc. # 57.) For the following reasons, the Court grants
in part and denies in part Defendant’s Motion.
On October 2, 2019, Defendant pleaded guilty to one count of Access with Intent
to View Child Pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). (Doc. #
16). The Court sentenced Defendant to 48 months imprisonment and 5 years of
supervised release and imposed a $100 special assessment fee and $5,000 in
restitution. (Doc. # 33 at 2–5.) The Court also imposed several Special Conditions of
Supervision. (Id. at 5.) In the instant Motion, Defendant challenges Special Conditions 1,
4, 6, and 7 through 11.
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District courts have broad discretion to prescribe special conditions of release.
United States v. Mike, 632 F.3d 686, 692 (10th Cir. 2011). “The conditions imposed
‘must satisfy the three statutory requirements laid out in 18 U.S.C. § 3583(d)’” and must
“comport with relevant constitutional provisions.” Id. (quoting United States v. Hahn, 551
F.3d 977, 983 (10th Cir. 2008)). First, the conditions imposed must be reasonably
related to at least one of the following: the nature and circumstances of the offense, the
defendant’s history and characteristics, the deterrence of criminal conduct, the
protection of the public from further crimes of the defendant, and the defendant’s
educational, vocational, medical, or other correctional needs. Id. (citing 18 U.S.C. §
3583(d)(1)). Second, the conditions “must involve no greater deprivation of liberty than
is reasonably necessary to achieve the purpose of deterring criminal activity, protecting
the public, and promoting the defendant’s rehabilitation.” Id. Finally, the conditions must
be consistent with any applicable policy statements issued by the United States
Sentencing Commission. Id.
Defendant first requests modification of Special Condition 1 to substitute his
participation in Sex Addicts Anonymous (“SSA”) in lieu of sex offender evaluation and
treatment. (Doc. # 57 at 12.) Special Condition 1 provides:
1. 	You must participate in and successfully complete a sex-offense
specific evaluation and/or treatment program as approved by the
probation officer. The probation officer will supervise your participation
in and compliance with the treatment program. You must comply with
all rules and regulations of the treatment program that are specified by
the treatment agency and the probation officer. You must pay all or
part of the costs of treatment as determined by the probation officer
based upon your ability to pay.
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(Doc. # 33 at 5.) Defendant argues that sex offender treatment is “mental health
treatment” and that there is no basis for imposing Special Condition 1 because the
Court received no evidence of Defendant being diagnosed with or suffering from any
mental health condition. (Doc. # 57 at 6.) The Government and the Probation Office
oppose Defendant’s modification request. (Doc. # 59 at 3; Doc. # 60 at 7–8.)
Having reviewed the Motion, the Court disagrees with Defendant and rejects his
argument that there is no basis for imposing a special condition of sex offender
evaluation and treatment in this case. The Court finds that the nature and
circumstances of Defendant’s offense, namely his collection and distribution of child
pornography and participation in online communities of likeminded individuals, justify
sex offender evaluation and treatment. Further, the Sentencing Commission
recommends that individuals convicted of sex offenses participate in sex offender
treatment, see U.S.S.G. § 5D1.3(d)(7). The Court also finds that sex offender evaluation
and treatment will not deprive Defendant of his liberty to an extent greater than
necessary to protect the public. Finally, the Court notes that Defendant has declined to
participate in sex offender treatment offered by the Bureau of Prisons. (Doc. # 60 at 7.)
For these reasons, the Court finds that sex offender evaluation and treatment is
warranted in this case and denies Defendant’s motion as to Special Condition 1.
Defendant next challenges Special Conditions 4 and 6, which state:
4. 	Your use of computers and Internet capable devices will be limited to
those you request to use and which the probation officer authorizes.
The probation officer must not prohibit lawful Internet use except to
impose restrictions on the types of computers or Internet capable
devices that you may use, to provide necessary restrictions to facilitate
correctional treatment and rehabilitation, and to protect the public from
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any further crimes. Any computer or Internet capable device must be
able to be effectively monitored by and comply with the requirements
of monitoring software utilized by the Probation Office. You must
disclose any username or identification(s) and password(s) for all
computers or Internet capable devices to the probation officer.
6. 	You must allow the probation officer to install software/hardware
designed to monitor computer activities on any computer you are
authorized by the probation officer to use. The software may record
any and all activity on the computer, including the capture of
keystrokes, application information, Internet use history, email
correspondence, and chat conversations. A notice will be placed on
the computer at the time of installation to warn others of the existence
of the monitoring software on the computer. You must not attempt to
remove, tamper with, reverse engineer, or in any way circumvent the
software/hardware.
(Doc. # 33 at 5.) Defendant argues that keystroke monitoring and “24/7 monitoring” are
“unreasonable” and constitute “the most restrictive option in case law,” which he
contends is not necessary in this case. (Doc. # 57 at 13.) Specifically, Defendant argues
that he is not a risk to public safety and other Special Conditions already permit the
Probation Office to conduct unannounced searches of his home and personal property,
so keystroke monitoring constitutes an unnecessary and unreasonable violation of his
privacy and liberty rights. (Id. at 13.) The Government and the Probation Office oppose
this request. (Doc. # 59 at 3; Doc. # 60 at 8–12.)
The Court disagrees with Defendant that he is not a risk to public safety and that
other Special Conditions are sufficient to monitor his computer use. First, the nature and
circumstances of the offense support keystroke monitoring: Defendant committed his
offense solely through use of the computer and the Internet, and he demonstrated
sophisticated computer skills through his access of child pornography websites on the
dark web and his encryption of his laptop. See (Doc. # 60 at 4.) Defendant further
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encouraged others on those websites to “stay safe.” (Id. at 9.) Having reviewed the
motion, the Court finds that keystroke monitoring and other computer and Internet use
restrictions imposed by Special Conditions 4 and 6 do not impose a greater deprivation
of liberty than is reasonably necessary to protect the public. Moreover, the Sentencing
Commission recommends limiting computer use or otherwise imposing monitoring of
computer and Internet use in cases like this one. See U.S.S.G. § 5D1.3(d)(7).
Accordingly, the Court finds that modification of Special Conditions 4 and 6 is not
appropriate and denies Defendant’s motion with respect to those conditions.
Finally, Defendant moves to modify Special Conditions 7 through 11 because he
paid his restitution in full and, therefore, those conditions are no longer applicable. (Doc.
# 57 at 17.) The Government and the Probation Office agree that it is appropriate to
remove Special Conditions 7–11. Having reviewed the motion, the Court agrees as well.
For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART
Defendant’s Motion to Modify Supervised Release Conditions (Doc. # 57). The Motion is
GRANTED with respect to removing Special Conditions 7, 8, 9, 10, and 11. The Motion
is DENIED in all other respects.
Accordingly, the Court ORDERS Defendant’s terms of supervision be modified to
remove the following special conditions:
7. 	You must not incur new credit charges or open additional lines of credit
without the approval of the probation officer, unless you are in
compliance with the periodic payment obligations imposed pursuant to
the Court’s judgment and sentence.
8. 	You must provide the probation officer access to any requested
financial information and authorize the release of any financial
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information until all financial obligations imposed by the court are paid
in full.
9. 	As directed by the probation officer, you must apply any monies
received from income tax refunds, lottery winnings, inheritances,
judgments, and any anticipated or unexpected financial gains to the
outstanding court-ordered financial obligation in this case.
10. You must pay the financial penalty/restitution in accordance with the
Schedule of Payments sheet of this judgment. You must also notify the
court of any changes in economic circumstances that might affect your
ability to pay the financial penalty/restitution.
11. If you have an outstanding financial obligation, the probation office
may share any financial or employment documentation relevant to you
with the Asset Recovery Division of the United States Attorney’s Office
to assist in the collection of the obligation.
It is FURTHER ORDERED that all other terms and conditions of supervision
previously imposed remain in full force and effect.
DATED: March 29, 2022
BY THE COURT:
_____________________________
CHRISTINE M. ARGUELLO
United States District Judge
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