Submitted: April 18, 2019.
Appeals from United States District Court for the Eastern
District of Missouri - Cape Girardeau
COLLOTON, GRUENDER, and ERICKSON, Circuit Judges.
COLLOTON, CIRCUIT JUDGE.
Spallek appeals the imposition of a special condition of
supervised release in two criminal cases. The condition
forbids him, with one exception, to use a computer or the
internet without the permission of the probation office. The
district court imposed the special condition in two
separate judgments. One judgment sentenced Spallek for
transporting lewd and lascivious material; the other imposed
sentence after a revocation of supervised release that was
imposed on a prior conviction for possession of child
pornography. We conclude that the court did not abuse its
discretion in fashioning the conditions of supervised
release, so we affirm the judgments.
was first convicted in 2010 of possessing child pornography.
See 18 U.S.C. § 2252A(a)(5)(B). At that time,
evidence showed that Spallek was a "member" of a
private members-only website dedicated to child pornography
and erotica. He downloaded videos and photographs of minor
children engaged in sexually explicit conduct, and admitted
that he had been viewing child pornography for ten years. The
district court sentenced him to thirty-seven months'
imprisonment and a life term of supervised release.
Spallek was released from prison in January 2013. One of the
special conditions of his supervised release prohibited
possessing a computer or accessing the internet without prior
approval from the probation office. Spallek petitioned the
court in 2014 to modify the condition so that he could access
the internet to assist with writing a novel. The court
eventually denied the motion without prejudice after the
parties agreed to resolve the matter informally. The
probation office proposed a plan to provide Spallek some
access to the internet, but Spallek rejected the plan as too
restrictive, and the conditions of release were not modified.
present case arises from Spallek's use of a public
computer at a job center in April 2017. A forensic search of
the computer revealed that Spallek had accessed websites
associated with child erotica, and conducted internet
searches for "girls soccer nude," "preschool
girls nude," "nudist kids," "naughty kid
spycam," "sleepover naked," "preteen
nudity," "accidental nudism kids," and
on this conduct, the government moved to revoke Spallek's
supervised release from the first case, and a grand jury
charged him with a new offense. Spallek admitted to violating
conditions of supervised release, and, pursuant to a plea
agreement, pleaded guilty to transportation of lewd and
lascivious material. See 18 U.S.C. § 1462(a).
district court revoked Spallek's supervised release,
accepted his guilty plea to the new offense, and sentenced
him to thirty-seven months' imprisonment and a life term
of supervised release on the new offense, plus a consecutive
four months of imprisonment and a life term of supervised
release for the revocation. In both cases, the court imposed
a special condition of supervised release that Spallek may
not use a computer or access the internet without permission
of the probation office, except that he may have access to a
word processor after the probation office verifies that the
device cannot connect to the internet. We review the
court's imposition of this special condition for abuse of
discretion. See United States v. Deatherage, 682
F.3d 755, 757 (8th Cir. 2012).
district court has broad discretion to impose special
conditions of supervised release, so long as each condition
complies with the requirements set forth in 18 U.S.C. §
3583(d). Id. at 758. Section 3583(d) requires that
the conditions be "reasonably related" to certain
§ 3553(a) factors, "involve no greater
deprivation of liberty than is reasonably necessary for the
purposes" enumerated in those provisions of §
3553(a), and be consistent with policy statements issued by
the Sentencing Commission. 18 U.S.C. § 3583(d).
totality of the circumstances justifies the condition here.
Although Spallek's offenses involved possessing child
pornography and "transporting" lewd and lascivious
materials for his own use, as opposed to distributing them to
others, possession and receipt are still serious offenses
that victimize the children depicted, and they can justify
internet restrictions in appropriate circumstances. See
United States v. Morais, 670 F.3d 889, 896-97 (8th Cir.
2012). Spallek already had demonstrated his incorrigibility
by using the job center computer to seek child pornography,
thus heightening the need for adequate deterrence and
protection of the public. See 18 U.S.C. §
3553(a)(2)(B)-(C). Even so, the district court did not impose
a total ban on use of computers or access to the internet.
Spallek may use a word processor for writing, once lack of
internet connectivity is verified by the probation office. If
he has a legitimate need to access the internet, then he may
seek permission from the probation office, which remains
subject to supervision by the court. In light of
Spallek's offense conduct and history on supervision,
imposition of the special condition was not abuse of
judgments of the district ...