United States v. Music

49 F. App'x 393
CourtCourt of Appeals for the Fourth Circuit
DecidedOctober 24, 2002
Docket02-4046
StatusUnpublished
Cited by1 cases

This text of 49 F. App'x 393 (United States v. Music) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Music, 49 F. App'x 393 (4th Cir. 2002).

Opinion

OPINION

PER CURIAM.

After pleading guilty to one count of possession of child pornography, see 18 U.S.C. § 2252(a)(5)(B) & (b)(2), Rickie Music was sentenced to 60 months of imprisonment and 3 years of supervised release. The district court, over Music’s objection, included the following condition in Music’s supervised release terms: “defendant shall participate in an evaluation and a mental health program with emphasis on sex offender treatment at the discretion of the probation officer. Treatment may include physiological testing such as the polygraph and penile plethysmograph, and the use of prescribed medications.” * Music appeals this condition, arguing that the district court erred in subjecting him to possible polygraph and plethysmograph testing because this testing does not satisfy the requirements for imposing conditions on supervised release laid out in 18 U.S.C. § 3583(d). Specifically, Music argues that this circuit’s general rule against admitting evidence from such testing implies that it is insufficiently rehable to serve as a condition of supervised release. The fact that polygraph and penile plethysmograph testing is generally inadmissible for evidentiary purposes does not mean that the tests are unreliable for other purposes, such as *394 treatment. We therefore affirm Music’s sentence.

* A penile plethysmograph
is a test designed to measure the Ghent’s patterns of sexual arousal, and is administered as follows. The client places a penile circumference gage around his penis. A wire from the gage leads to an electronic machine which records the circumference of the client’s penis on a line graph, while the elient is presented with a series of audio and visual material. The client wears a hospital gown during the test.

Walrath v. United States, 830 F.Supp. 444, 446 n. 1 (N.D.Ill.1993).

I.

When imposing a sentence of supervised release, a district court must include certain conditions listed in 18 U.S.C. § 3583(d). In addition, the court may include “any other condition it considers to be appropriate,” id., as long as that condition “is reasonably related” to certain statutory factors referred to in § 3583(d)(1). These factors are: “the nature and circumstances of the offense and the history and characteristics of the defendant,” § 3553(a)(1), providing adequate deterrence, § 3553(a)(2)(B), protecting the public from further crimes, § 3553(a)(2)(C), and providing the defendant with training, medical care, or treatment, § 3553(a)(2)(D). Furthermore, conditions must “involve[ ] no greater deprivation of liberty than is reasonably necessary” for achieving the specified goals, and they must be consistent with Sentencing Commission policy statements on supervised release. 18 U.S.C. § 3583(d)(2) & (3).

Because district courts have broad latitude in the choice of conditions on supervised release, we review the imposition of these conditions for abuse of discretion. See United States v. Crandon, 173 F.3d 122, 127 (3rd Cir.1999); United States v. Ritter, 118 F.3d 502, 504 (6th Cir.1997); see also United States v. Wesley, 81 F.3d 482, 484 (4th Cir.1996).

Music argues that because polygraph and plethysmograph evidence is generally inadmissible, it must be inherently unreliable. He reasons that inherently unreliable tests cannot be reasonably related to the goals of supervised release and that assigning the tests as a condition of supervised release is thus an abuse of discretion. He is correct that our circuit takes a dim view of polygraph evidence. It is inadmissible in nearly every circumstance at trial. See, e.g., United States v. Porter, 821 F.2d 968, 974 (4th Cir.1987); United States v. Brevard, 739 F.2d 180, 182 (4th Cir.1984). But see United States v. A.S. Council Oil Co., 947 F.2d 1128, 1134-35 (4th Cir.1991) (polygraph evidence may be admitted to challenge credibility of expert who “must have necessarily discounted” polygraph results). Our decisions holding polygraph evidence to be inadmissible do not contain any detailed analysis of whether the test is reliable. See, e.g., Brevard, 739 F.2d at 182 (stating simply that “[ejvidence that the accused or a witness has taken a polygraph test is inadmissible.”). We do not seem to have considered, for example, whether there have been any improvements in the technology. Rather, our decisions reflect an acceptance of a general (and longstanding) rule against admissibility of polygraph evidence. See generally 1 McCormick on Evidence (John W. Strong ed., 5th ed.1999) § 206.

Our court has given a bit more consideration to penile plethysmograph evidence. In United States v. Powers, 59 F.3d 1460, 1471 (4th Cir.1995), we held that a district court did not abuse its discretion by refusing to admit plethysmograph evidence offered by a criminal defendant. Unlike what we have done in the polygraph area, *395 we did not announce in Powers a general rule that plethysmograph evidence is inadmissible. Rather, we noted that the government had provided unrebutted evidence that the test lacks “accepted standards in the scientific community” and that the test is prone to producing false negatives. Powers, 59 F.3d at 1471. We then concluded that the government had established that the test is insufficiently reliable to meet the “scientific validity” prong of Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Although it was not relevant to the issue of admissibility, we noted that the government conceded that the plethysmograph test is “useful for treatment of sex offenders.” Powers, 59 F.3d at 1471. See also Pool v. McKune, 267 Kan. 797, 987 P.2d 1073, 1079 (1999).

II.

A.

Music has not offered any evidence about the reliability or unreliability of either the polygraph or the penile plethysmograph test.

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Bluebook (online)
49 F. App'x 393, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-music-ca4-2002.