United States District Court, W.D. Wisconsin
D. PETERSON U.S. DISTRICT JUDGE.
hearing on the probation office's petition for judicial
review of Todd William Orth's supervised release was held
on September 22, 2017, before U.S. District Judge James D.
Peterson. The government appeared by Assistant U.S. Attorney
Timothy O'Shea. Defendant was present in person and with
counsel, Erika L. Bierma. Also present was Senior U.S.
Probation Officer Michael J. Nolan.
the record I make the following findings of fact.
February 11, 2009, defendant was sentenced in the Northern
District of Iowa following his conviction for interstate
travel with intent to commit criminal sexual activity with a
minor, in violation of 18 U.S.C. §§ 2423(b),
2423(f), 2243(a), and 2246. This offense is a Class B felony.
He was committed to the custody of the Bureau of Prisons to
serve a term of imprisonment of 87 months, with a 15-year
term of supervised release to follow. Defendant began his
term of supervised release on November 21, 2014, in the
Western District of Wisconsin. On March 4, 2015, jurisdiction
was transferred from the Northern District of Iowa to the
Western District of Wisconsin.
stipulated to violating Standard Condition No. 3, requiring
him to answer truthfully all inquiries by the probation
officer and follow the instructions of the probation officer.
On June 28, 2017, defendant's supervising probation
officer and the treatment counselor instructed defendant to
have no contact with his minor daughter until approval was
granted by the treatment counselor and his probation officer.
On June 28, 2017, defendant had telephone contact with his
minor daughter and continued to have telephone contact with
her primarily through short message services (text messaging)
through July 11, 2017, without approval. On August 3, 2017,
the supervising probation officer asked defendant during a
phone conversation whether he had contact with his children
and he denied contact. On August 4, 2017, defendant was asked
again during a community contact whether he had contact with
his children. He admitted to having telephone contact with
his minor daughter on July 18, 2017. In a sex offender
treatment session, defendant admitted that he was knowingly
dishonest with his supervising probation officer and was
deceptive with information regarding his contact with his
daughter when discussing the issue with his supervising
probation officer and the sex offender treatment counselor in
stipulated violation is a Grade C violation. Under
§7B1.3(a)(2), the Court may revoke or extend the term of
supervised release or modify the conditions of supervision
upon a finding of a Grade C violation.
the hearing, the parties also addressed defendant's
inappropriate physical contact with his minor daughter. On
June 28, 2017, defendant and U.S. Probation Officer Michael
Nolan met with a sex offender treatment counselor for a
counseling session. Defendant disclosed that he had touched
his daughter's breast while waking her up in the morning,
and he described an incident during which he cuddled with his
daughter while he was naked under sheets of his bed while she
was on top of the sheets. The treatment counselor also asked
defendant about websites that he had visited, specifically
www.incesttaboo.com. Defendant indicated that he was
aroused by incest. The treatment counselor expressed serious
concerns about the safety of Mr. Orth's minor daughter in
light of the inappropriate contact and defendant's sexual
interests and history. At the hearing, the treatment
counselor testified that defendant had not been fully and
forthrightly engaged in his therapy. Based on these concerns,
defendant's sex offender counseling was increased to two
sessions per week. The government did not contend that this
physical contact constituted additional violations of
defendant's conditions of supervision because it could
not prove that defendant intended the contact for sexual
court also took testimony from defendant's daughter's
counselor. She expressed the view that the daughter had begun
to develop a stronger relationship with defendant since his
incarceration, and that it would be healthy for the daughter
to continue to develop this relationship. The counselor did
not support a complete bar on contact between defendant and
his daughter, although the counselor had not been aware of
the allegations of inappropriate physical contact.
stipulated violation is serious in light of his offense of
conviction. The court is also very concerned about
defendant's inappropriate physical contact with his
daughter and his lack of full, honest engagement in his
criminal history category is I. With a Grade C violation,
defendant has an advisory guideline term of imprisonment of 3
to 9 months. Under 18 U.S.C. § 3583(e)(3), the statutory
maximum to which defendant can be sentenced upon revocation
is three years because his underlying offense is a Class B
felony. I am persuaded that at this point the court's
concerns are best addressed by a modification of the
conditions of supervision, with some additional guidance to
defendant and the supervising officer.
the conditions of supervised release imposed on February 11,
2009, are rescinded and replaced with the conditions proposed
in Dkt. 4, as further modified at the hearing. Specifically,
the court declines to impose special condition no. 8
requiring placement in a residential re-entry center. The
court modifies special condition no. 2 to prohibit defendant
from accessing any form of internet pornography, and to
prohibit possession of pornography unless therapeutically
appropriate and approved by the supervising officer. The
conditions imposed are restated in the order section below.
Defendant waived reading of the conditions at the hearing.
court also provides some additional guidance for the benefit
of defendant and the supervising officer. The court expects
defendant to sincerely, fully, and honestly engage in
recommended therapy. Defendant will have to demonstrate
engagement with and progress in therapy before the
supervising officer approves contact with his minor children,
and the amount of contact and the nature of that contact will
depend on the degree of engagement and ...