Appeal from the United States District Court for the District of Delaware (D.C. Criminal Action No. 00-cr-00024-1 & No. 00-cr-00028-1) District Judge: Honorable Gregory M. Sleet
Before: Roth and Greenberg, Circuit Judges and
WARD,*fn1 District Judge
The opinion of the court was delivered by: Ward, District Judge
Argued on October 17, 2002
This is an appeal from the district court's judgment imposing a condition of supervised release, which requires appellant to submit to random polygraph examinations at the discretion of the probation officer. Because we conclude that the condition does not violate appellant's Fifth Amendment right and the district court did not abuse its discretion in imposing the polygraph condition, we affirm the judgment of the district court.
Appellant Albert Lee was arrested on February 15, 2000 for knowingly transporting child pornography by computer. On March 14, 2000, he was charged in a two-count indictment, alleging transportation of child pornography, in violation of 18 U.S.C. S 2252A(a)(1) & (b)(1), and possession of child pornography, in violation of 18 U.S.C. S 2252A(a)(5)(B) & (b)(2). The Grand Jury returned a second indictment on March 28, 2000, charging Lee with travel for purposes of having sex with a minor, in violation of 18 U.S.C. S 2423(b), and enticing a minor by computer to engage in sex, in violation of 18 U.S.C. S 2422(b). On April 11, 2000, the Grand Jury returned a three-count indictment, superceding the original indictment returned on March 14, 2000. The superceding indictment charged Lee with transportation of child pornography; possession of child pornography; and enticing a minor by computer to engage in sex.
On November 30, 2000, pursuant to a plea agreement, Lee pleaded guilty to all three counts in the superceding indictment returned on April 11, 2000, and Count One of the indictment returned on March 28, 2000 (travel for purposes of having sex with a minor).
At the time Lee committed the offenses involved, he was over thirty years of age. He met female minors via an Internet Relay Chat channel entitled "#0!!!!!!!!GirlsandOlderGuys." Through online conversations, Lee met a fifteen-year old girl; he later met her in person and engaged in sexual acts with her. He also attempted to meet other minors online in order to induce them to perform sexual acts with him. In addition, Lee transmitted child pornography online.
The district court committed Lee to the Federal Correctional Institution in Petersburg, Virginia for a psychological evaluation to assist the court in sentencing. An evaluation was conducted on May 15, 2001 and a report was mailed to the court on May 21, 2001. On July 25, 2001, the district court advised the parties that it was considering an upward departure with respect to Lee's sentence. Lee had Doctor Timothy P. Foley perform a psychological evaluation on September 14, 2001, the results of which were provided to the court. The district court informed the parties on October 31, 2001 that it was still considering an upward departure.
On the sentencing date, December 11, 2001, the parties executed an Addendum to Memorandum of Plea Agreement, stipulating to increase the offense level for transportation of child pornography by two points to Level 23. Inasmuch as appellant's Criminal History Category was I, the Guideline Sentencing Range was 46 to 57 months. Lee was sentenced to 57 months of incarceration on Count One, and 46 months each on Counts Two and Three of the superceding indictment and Count One of the indictment returned on March 28, 2000, all terms to be served concurrently. Upon release from imprisonment, Lee was to be on supervised release for a term of three years. The court set additional conditions of supervision, one of which was the following: "The defendant shall submit to random polygraph examination, examination to be administered by a certified examiner, at the direction and discretion of the United States Probation Officer." (Appendix at A-8). Lee appeals this particular condition of supervised release.*fn2
II. JURISDICTION AND STANDARD OF REVIEW
The district court had jurisdiction pursuant to 18 U.S.C. S 3231, which grants the district courts jurisdiction over all offenses against the laws of the United States. We have jurisdiction to review the district court's judgment pursuant to 28 U.S.C. S 1291 and 18 U.S.C. S 3742(a). The district court's decision to impose conditions of supervised release ...