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United States v. Orth

United States District Court, W.D. Wisconsin

January 4, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
TODD WILLIAM ORTH, Defendant.

          ORDER

          JAMES D. PETERSON U.S. DISTRICT JUDGE.

         A 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.

         From the record I make the following findings of fact.

         FACTS

         On 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.

         Defendant 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 the past.

         Defendant's 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.

         During 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 purposes.

         The 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.

         CONCLUSIONS

         Defendant's 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 therapy.

         Defendant's 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.

         Accordingly, 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.

         The 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 ...


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