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United States v. Kosa

United States District Court, Eastern District of Tennessee, Knoxville

January 14, 2015

UNITED STATES OF AMERICA
v.
BELA GABOR KOSA II

MEMORANDUM AND ORDER

Leon Jordan, United States District Judge

The defendant pled guilty to distribution of child pornography. He will be sentenced on January 26, 2015. The United States Probation Office has prepared and disclosed a Presentence Investigation Report (“PSR”). In material part, the PSR recommends imposition of 11 sex-offender supervision conditions taken from this court’s Local Rules. See E.D. Tenn. L.R. 83.10(b). The defendant objects to three of those special conditions. For the reasons that follow, the defendant’s objections will be sustained in part and overruled in part.

I.

Background

In his plea agreement, the defendant admits to possessing 12 videos and at least 600 images of child pornography. [Doc. 25, ¶ 6]. At least three of the images distributed by the defendant are of a particularly disturbing nature involving intimate physical contact between adult males and prepubescent females. Id. ¶¶ 5, 6. The defendant knew his conduct was illegal and “he assumed law enforcement would come someday.” Id. ¶ 6. The plea agreement further contains the defendant’s admission that on October 8, 2013, he informed officers “that he was accused of molesting an eight-year-old family member, but that someone else was actually the perpetrator; and that he was in contact with a man who was possibly abusing children . . . .” Id. A tablet and flash drive containing child pornography was hidden between the defendant’s mattress and box springs. Id.

II.

Special Conditions of Supervision

As noted, the PSR recommends imposition of eleven of the sex-offender special conditions of supervision adopted by this court’s Local Rule 83.10(b), and the defendant objects to three of those conditions in full or in part.

A sentencing court may impose a non-mandatory condition of supervised release only if it meets three requirements. First, the condition must be “reasonably related to” several sentencing factors. These factors are “the nature and circumstances of the offense and the history and characteristics of the defendant” and “the need for the sentence imposed . . . to afford adequate deterrence to criminal conduct; . . . to protect the public from further crimes of the defendant; and . . . to provide the defendant with needed educational or vocational training, medical care or other correctional treatment in the most effective manner.” Second, the condition must “involve[] no greater deprivation of liberty than is reasonably necessary for” several sentencing purposes. These purposes are “to afford adequate deterrence to criminal conduct; . . . to protect the public from further crimes of the defendant; and . . . to provide the defendant with needed educational or vocational training, medical care or other correctional treatment in the most effective manner.” Third, the condition must be “consistent with any pertinent policy statements issued by the Sentencing Commission.” Because they are written in the conjunctive, a condition must satisfy all three requirements. However, a condition need not satisfy every single factor and purpose within each of the first two requirements.

United States v. Carter, 463 F.3d 526, 529 (6th Cir. 2006) (footnote and citations omitted) (emphasis added).

A. Local Rule 83.10(b)(5)

The PSR recommends imposition of the special condition found at Local Rule 83.10(b)(5) which provides:

The defendant shall not possess any printed photographs, paintings, recorded material, or electronically produced material that he/she may use for the purpose of deviant sexual arousal. Nor shall he/she visit, frequent, or remain about any place where such material is available to him/her for the purpose of deviant sexual arousal.

The defendant objects that this condition: infringes on his First Amendment rights; infringes on his Fifth Amendment rights; and is both vague and overly broad. These issues are presented in such a barebones fashion that the court deems them forfeited. “It is not sufficient for a party to mention a possible argument in the most skeletal way, leaving the court to ... put flesh on its bones.” United States v. Cole, 359 F.3d 420, 428 n.13 (6th Cir. 2004) (citation omitted). Even if these arguments were not forfeited, the ...


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