United States v. Adam Maranto

77 F.4th 623

• Court: Court of Appeals for the Seventh Circuit
• Decided: August 10, 2023
• Docket: 22-1358
• Status: Published

Opinion

In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 22-1358 UNITED STATES OF AMERICA, Plaintiff-Appellee, v.

ADAM E. MARANTO, Defendant-Appellant. ____________________

Appeal from the United States District Court for the Western District of Wisconsin. No. 3:17-cr-00006-jdp-1 — James D. Peterson, Chief Judge. ____________________

ARGUED JANUARY 5, 2023 — DECIDED AUGUST 10, 2023 ____________________

Before FLAUM, ROVNER, and BRENNAN, Circuit Judges. ROVNER, Circuit Judge. Adam E. Maranto pled guilty to one count of distribution of child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A), (b)(1). While serving a term of super- vised release for that conviction, he committed an additional offense, which violated the terms of his supervised release. For that offense and other violations of the conditions of su- pervised release, the district court revoked his supervision and sentenced him to an additional term of imprisonment 2 No. 22-1358

followed by supervised release. Maranto now challenges two discretionary conditions of supervised release that the court imposed in this most recent sentencing. We affirm. I. In 2006, Maranto pled guilty in the Central District of Cal- ifornia to one count of distribution of child pornography. He was sentenced to 120 months’ imprisonment, followed by a lifetime term of supervised release. In 2014, Maranto began serving his term of supervised release in Wisconsin. In 2017, jurisdiction over his case was transferred to the Western Dis- trict of Wisconsin. While on supervised release in Wisconsin, Maranto committed a new crime, possession of child pornog- raphy, for which he was charged and convicted in Wisconsin state court. The state court sentenced him to a term of impris- onment of ten years followed by ten years of supervised re- lease. That state court conviction violated a standard condition of his federal supervised release that prohibited him from committing another federal, state or local crime. Maranto had also violated other special conditions of supervision by pos- sessing an unapproved cell phone and by possessing materi- als depicting child pornography. Maranto’s most serious vio- lation, the state court conviction for possession of child por- nography, was a Grade B violation that called for mandatory revocation under USSG § 7B1.3(a)(1). The U.S. Probation Of- fice moved to revoke supervision, and the court granted the motion. The district court then sentenced Maranto to fourteen months’ imprisonment to be served concurrently with his state court sentence, followed by a lifetime term of supervised release. No. 22-1358 3

The district court imposed three mandatory conditions of supervised release and twenty discretionary conditions. Ma- ranto objected to two of the discretionary conditions. Discre- tionary Condition 13 requires that Maranto “[p]rovide the su- pervising U.S. Probation Officer any and all requested finan- cial information, including copies of state and federal tax re- turns.” Discretionary Condition 19 requires that Maranto, “[a]s approved by the supervising U.S. Probation Officer, un- dergo psychosexual evaluations which may involve use of polygraph examinations.” In the order revoking Maranto’s supervised release and sentencing him anew, the district court justified the financial information condition as “[b]ased on defendant’s sporadic employment history, the need to monitor his ability to support himself through legitimate means, and the requirement to report place of employment under SORNA.” See Sex Offender Registration and Notifica- tion Act (“SORNA”), 34 U.S.C. § 20901, et seq. (requiring sex offenders to register with any U.S. state, territory or common- wealth where they reside, are an employee, or are a student). In that same order, the court justified the imposition of psy- chosexual evaluations as “[b]ased on defendant’s prior crimi- nal record that includes possession and distribution of child pornography, his admissions to past sexual abuse of minors, his unauthorized association with a minor while on super- vised release, and his possession of child pornography while on supervised release.” The court offered additional justifica- tions and explanations of its rulings during the sentencing hearing, as we will discuss below. Maranto filed objections to these two conditions prior to the sentencing hearing. Specifically, he objected to the finan- cial disclosure condition on the grounds that there was no ev- idence that he supports himself through illegitimate means or 4 No. 22-1358

would not report his place of employment under SORNA. He argued that the justifications offered by the Probation Office were not supported by evidence, and that the court should therefore deny the request as unreasonable. As for the condi- tion requiring psychosexual evaluations, Maranto conceded generally that he should continue to engage in psychosexual evaluations, but he challenged the use of the polygraph ex- aminations as a tool for doing so. He objected that there was no basis to conclude that polygraph examinations are reliable, that the Probation Office had not explained what qualifica- tions a polygraph examiner must possess before being relied upon to assess truthfulness, and that the Probation Office had not explained what scientific means would be applied in con- junction with the polygraph for concluding whether an indi- vidual is being truthful. He urged the court to deny the re- quest for polygraph examinations as not sufficiently justified. At the sentencing hearing, the government argued in fa- vor of the financial disclosures in order to monitor whether and where Maranto was working, and to track where his money is spent. In particular, the government contended that it was important to be able to discern whether he was spend- ing money for prohibited activities, or to purchase prohibited items like certain cell phones or internet service. As for the use of polygraph examinations as part of psychosexual evalua- tions, the government first asserted that the issue was not ripe for adjudication because the use of polygraph examinations was not mandatory, and the technology might be obsolete by the time Maranto was released from prison. In the alternative, the government argued that the Probation Office should be able to employ every tool available to monitor sex offenders like Maranto. No. 22-1358 5

Both defense counsel and Maranto himself addressed the court on both issues. Defense counsel emphasized that alt- hough some financial disclosure could be relevant to supervi- sion, the condition as written allowed unfettered demand for all financial records, even information that was only tenu- ously connected to the offense or supervision. Counsel de- scribed the requirement as an impediment to people moving about in life and as obstructing daily existence because of the extensive nature of the condition. Counsel argued against the polygraph as an unreliable tool that prompted false confes- sions and did nothing more than indicate stress, a common feeling not necessarily indicative of deception. Counsel also asserted that the use of polygraphs breaks down trust be- tween a probation officer and the person being supervised. Maranto himself told the court that although he had no prob- lem with financial oversight generally, there are electronic en- tertainment items that do not require internet access that he wished to buy but that he feared would cause a problem with his probation officer. On the polygraph testing, Maranto com- plained that it is unreliable, that it prompts false confessions, that some persons can learn to control their physical re- sponses and render the test even more unreliable, and that there is no standardized training for administering poly- graphs. He asserted that, when undergoing past polygraph examinations, he had been told he was deceptive on numer- ous occasions when he was telling the truth and that proba- tion officers subjected him to closer supervision based on the results of these unreliable tests. Finally, he told the court that he found it very stressful to receive notices that he would be subjected to polygraph examinations because he feared he would be subjected to further scrutiny due to unreliable re- sults. 6 No. 22-1358

The court imposed the two special conditions over the de- fendant’s objections. On the financial disclosure issue, the court imposed the condition for the reasons asserted by the government, but acknowledged Maranto’s request for access to digital games that were not connected to the internet. The court encouraged him to work with his probation officer for access to such games and to return to the court if he had dif- ficulty working through the issue with the probation officer. The court offered a lengthy explanation of its decision to im- pose the polygraph condition. The court had previously met with the Probation Office to raise concerns with the use of pol- ygraph examinations but was persuaded of their usefulness for supervision purposes after seeing a demonstration. The court acknowledged that the examinations are not accurate enough to be used for the purposes of revocation. Neverthe- less, the court noted that polygraph examinations could be beneficial to defendants because truthful disclosures by per- sons under supervision could lead to greater freedoms. The court also noted that indications of deception could appropri- ately lead to a reinterview or further and closer supervision. Maranto appeals. II. On appeal, Maranto objects to the financial disclosure con- dition as overly broad to the extent that it forces him to pro- duce state and local income tax returns because they provide no information about how he spends his money. He objects to the condition allowing polygraph examinations as lacking ad- equate justification in light of their proven unreliability. In general, we review the court’s imposition of discretionary conditions of supervised release for abuse of discretion. United States v. Patlan, 31 F.4th 552, 558 (7th Cir. 2022). No. 22-1358 7

Before we address the merits of Maranto’s objection to the financial reporting condition, we must address a threshold ar- gument raised by the government. The government asserts that Maranto withdrew his objection to the financial reporting condition when he personally told the court he had no prob- lem with financial oversight. According to the government, this concession operates as a waiver that precludes review of his objection on appeal to the requirement that he produce tax returns. We disagree. It is clear in context that Maranto con- ceded only that he had no objection to producing records re- lating to his spending habits. Maranto did not address his broader objection to producing other financial records such as tax returns. He said nothing that would constitute waiver of his objection to the financial records condition to the extent that it requires him to produce tax returns as requested by his probation officer. Indeed, in addition to filing a written objec- tion objecting broadly to the financial oversight condition, Maranto’s counsel argued at sentencing against the scope of the condition generally as burdensome and not sufficiently tied to the reasons for ordering disclosure. Because the objec- tion to producing tax returns was preserved in counsel’s gen- eral written and oral objections, we will review it for abuse of discretion. That said, the court did not abuse its discretion in requir- ing Maranto to produce tax returns. The court included tax returns in the financial disclosure requirement based on Ma- ranto’s sporadic employment history, the need to monitor his ability to support himself through legitimate means, and the requirement to report his place of employment under SORNA. Although there are other ways for the Probation Of- fice to monitor Maranto’s employment and SORNA compli- ance, tax returns are a helpful source of information, and are 8 No. 22-1358

not particularly onerous to produce. We see no abuse of dis- cretion in the court’s imposition of this condition. On Maranto’s objection to the polygraph condition, we again must address a threshold issue: the government argues first that the standard of review is irrelevant because there is no final decision to adjudicate. According to the government, Maranto’s challenge to the polygraph condition is not ripe be- cause the imposition of the condition rests upon a string of contingencies. The “contingencies” asserted by the govern- ment are that Maranto must first finish serving the final six years of his sentence, and then undergo psychosexual evalu- ations which may involve the use of polygraph examinations. According to the government, it would be premature to con- sider this condition because the technology could change by the time Maranto is released. The government contended that the parties should instead wait to see how the conditions are actually imposed. We conclude that the issue is ripe for adjudication. “Ripe- ness and other justiciability requirements bar a federal court from deciding a question that depends on so many future events that a judicial opinion would be ‘advice about remote contingencies.’” Amling v. Harrow Industries LLC, 943 F.3d 373, 378 (7th Cir. 2019) (quoting Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 538 (7th Cir. 2006)). The court’s final judgment imposes this condition on Maranto, and we reject the govern- ment’s claim that there is no final decision to adjudicate. A contingency is “a future event or circumstance which is pos- sible but cannot be predicted with certainty.” Concise Oxford English Dictionary, Eleventh Edition (2004). Completing the remainder of the sentence is not a true “contingency” in this case. Some time will pass before the commencement of No. 22-1358 9

supervised release in virtually every sentence that includes a term of imprisonment (except, perhaps, a sentence for time served), and that term, in this instance, is both short and de- terminate. As the government itself notes, Maranto has six years remaining on his state sentence. His federal sentence, which is being served concurrently, finishes even sooner. In general, we have reviewed challenges to conditions of super- vised release in countless cases where even lengthy terms of imprisonment preceded supervised release. See United States v. Rhodes, 552 F.3d 624, 629 (7th Cir. 2009) (noting that we have entertained challenges to conditions of supervised release on “countless occasions” where defendants had sentences of sev- eral years remaining before the conditions commenced). Per- haps if the sentence were very long and the defendant very old, the completion of the sentence could be considered a true contingency, but that is not the case here. See, e.g., United States v. Kappes, 782 F.3d 828, 859 (7th Cir. 2015) (finding that an objection to a condition preventing contact with any mi- nors including the defendant’s own children was not ripe for review where the defendant was forty-seven years old, faced a twenty-year sentence, and had no children at the time of im- prisonment). As for the permissive nature of the Probation Office’s use of polygraph examinations, the government supported the imposition of this condition by arguing that the Probation Of- fice should have every tool available for assessing the defend- ant’s sexual desires and conduct in order to protect the com- munity, especially for this type of crime. The impending use of polygraph examinations is hardly speculative in Maranto’s case. This is not, after all, Maranto’s first go-round with the Probation Office in the Western District of Wisconsin. The Probation Office supported imposition of this condition by 10 No. 22-1358

detailing six polygraph examinations that it had conducted on Maranto during his prior term of supervision. In five of the six polygraph examinations, Maranto was found to be decep- tive in answering certain questions. On several occasions, that finding resulted in further questioning that led to highly rele- vant admissions from Maranto. In one case, the finding of de- ception was used to obtain a search warrant that led to the confiscation of certain items. The government also cited the Probation Office’s successful use of polygraph examinations to uncover supervision violations by Maranto. Clearly, the Probation Office considers polygraph examinations to be a very useful tool in supervising Maranto and intends to use this tool upon Maranto’s release. The use of polygraphs in Maranto’s case thus is not only possible but can be predicted with reasonable certainty. The district court noted that alt- hough the condition did not require the use of polygraph ex- aminations, the court’s understanding was that the examina- tions were commonly used with offenders on supervised re- lease for sex offenses. The government does not deny that this is so. In light of the Probation Office’s extensive history of us- ing polygraph examinations as a tool in Maranto’s supervi- sion, there is more than enough here to satisfy the standard for ripeness. The government’s reliance on Kappes and Rhodes to argue against ripeness is misplaced. In both of those cases, the con- tested condition at issue was the use of physically intrusive and controversial penile plethysmograph testing. 1 In Kappes, the condition imposed included submission to physiological

1 Penile plethysmograph testing involves placing a device on a man’s

penis in order to measure his sexual response to various visual and audi- tory stimuli. Kappes, 782 F.3d at 855 n.10. No. 22-1358 11

testing, including polygraph testing, “which may be part of” sex offender treatment as directed by the Probation Office. The challenged condition did not even mention penile ple- thysmograph testing, and there was uncertainty whether sex offender treatment would be ordered following release. In that context, where the challenged plethysmograph test was not mentioned in the supervision condition, and where the treatment program purportedly including that test might not be ordered at all, there were too many contingencies for the challenge to be ripe for review. 782 F.3d at 855. In Rhodes, the court imposed a condition requiring psychosexual evalua- tion, which could then lead to mandatory participation in a sex offender treatment program. That program, in turn, could include penile plethysmograph examinations. The defendant there had failed to object to the condition in the district court and so our review was for plain error only. In that context, we found that the challenge to the condition was not ripe for re- view because there was too much uncertainty about whether the test would ever be used. 552 F.3d at 627–28. Kappes and Rhodes are easily distinguishable from Maranto’s situation where the Probation Office has already employed polygraph testing on Maranto many times and exhibits every indication that it will continue to do so on his release. Having found the polygraph issue ripe for decision, we again conclude that the district court did not abuse its discre- tion in imposing the condition. The district court gave thoughtful consideration to the benefits and detriments of polygraph testing, and noted its usefulness with sex offenders in general and with Maranto in particular. The court made clear that it did not consider polygraph testing sufficiently re- liable to support revocation but found that it could have ben- eficial uses nevertheless. For example, truthful responses 12 No. 22-1358

could lead to a lessening of supervision restrictions, and re- sponses deemed not truthful could lead to additional ques- tioning and closer supervision as deemed appropriate by the Probation Office. There is no abuse of discretion here. AFFIRMED.