Third Circuit disposition — 082148np-pdf

The Honorable Thomas I. Vanaskie, District Judge of the United States District*
Court for the Middle District of Pennsylvania, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 08-2148
__________
UNITED STATES OF AMERICA
vs.
FRANK KESTING,
Appellant.
__________
Appeal from the United States District Court
for the District of Delaware
(D.C. Crim. No. 07-94)
District Judge: Honorable Sue L. Robinson
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Argued May 20, 2009
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Before: RENDELL and GARTH, Circuit Judges, and
VANASKIE, District Judge.*
(Opinion Filed: August 4, 2009)
Edson A. Bostic, Esq.
Luis A. Ortiz, Esq. (ARGUED)
Tieffa N. Harper, Esq.
Federal Public Defender’s Office
First Federal Plaza, Suite 110
704 King Street
Wilmington, DE 19801

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Attorneys for Appellant
David C. Weiss, Esq.
Acting United States Attorney
Edmond Falgowski, Esq. (ARGUED)
Assistant United States Attorney
1007 N. Orange Street
Nemours Building, Suite 700
P.O. Box 2046
Wilmington, DE 19899
Attorneys for Appellee
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OPINION
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GARTH, Circuit Judge:
Frank Kesting pleaded guilty on December 17, 2007 to one count of possession of
child pornography in violation of 18 U.S.C. § 2252A(a)(1) and (b)(2), and was sentenced
to 37 months of imprisonment and 5 years of supervised release. On appeal, Kesting
complains that the sentencing judge failed to set forth findings and justifications for the
Special Conditions of Supervised Release and, specifically, that three of the conditions
are overbroad. We find that the District Court failed to state any reasons for the Special
Conditions it imposed, as required under 18 U.S.C. § 3553(c). Since we do not know the
reasons of the District Court for imposing these conditions, we cannot properly review
Kesting’s claim, and accordingly we remand for further proceedings to determine whether
the Special Conditions are supported by the record.

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Our opinion in United States v. Thielemann, ___ F.3d ___ (3d Cir. 2009),1
reproduces an example of these “chats,” including a verbatim chat between Thielemann
and another of his associates on June 11, 2006.
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I.
Because we write solely for the parties, we discuss only the facts relevant to this
appeal. In 2007, Kesting was linked to the ongoing investigation of another individual,
Paul Thielemann, for distribution of child pornography. A search of Thielemann’s
computer had revealed that Kesting and Thielemann shared numerous online chat
conversations, including some discussions of child pornography. One such conversation1
reflected that Kesting had received two such images from Thielemann.
Kesting’s laptop was seized on March 29, 2007, approximately one month after
Thielemann’s computer was seized. Forensic examiners recovered several deleted files
depicting child pornography, including five to ten images and one twenty-second video,
but they could not determine when the files had been deleted. Kesting admitted that he
had received these files from Thielemann, but claimed that he had deleted them
immediately upon receipt because he had no sexual interest in children.
Kesting was sentenced on April 2, 2008. His total offense level was 21, and the
advisory Sentencing Guidelines range was 37 to 46 months. The District Court imposed a
sentence at the low end of the guideline range, noting that Kesting “did not encourage or
condone the further victimization that Mr. Thielemann managed to impose,” and that

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Kesting was 26 years old at the time of his sentencing. App. 27.2
The District Court had jurisdiction under 18 U.S.C. § 3231. We exercise3
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1). Although we
generally review Special Conditions of Supervised Release for abuse of discretion, we
review for plain error here because no objection was raised at the sentencing hearing.
United States v. Voelker, 489 F.3d 139, 143 n.1 (3d Cir. 2007).
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Kesting, “in addition to his youth, has a background, I think significantly different than2
many of our other defendants, having been a victim himself, and coming from a less than
easy family background, and yet getting through school and working consistently, and
having no criminal background.” App. 31. The District Court then stipulated a term of
supervised release and enumerated several Special Conditions of Supervised Release,
three of which are the subject of this appeal:
[1] You shall not own or operate a personal computer with
Internet access in the home or in any other location, including
employment, without prior written approval of the probation
officer.
. . .
[2] You shall not visit or live in a residence where there are
children present without third-party notification and without
prior approval of the Court. You shall not invite or otherwise
encourage anyone under the age of 18 to visit your living
quarters.
. . .
[3] You shall not possess or view any materials, including
pictures, photographs, books, writings, drawings or video games
depicting and/or describing sexually explicit conduct as defined
in Title 18 of the United States Code, Section 2256(2).
App. 32-34. Judgment was entered on April 4, 2008, and this appeal followed.3

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II.
When a court imposes Special Conditions of Supervised Release, they must be
reasonably related to “the nature and circumstances of the offense and the history and
characteristics of the defendant,” as well as to “the goals of deterrence, protection of the
public and rehabilitation of the defendant,” as set forth in 18 U.S.C. § 3553(a)(1) &
(2)(B)-(D). United States v. Loy, 191 F.3d 360, 371 (3d Cir. 1999) (citing 18 U.S.C.
§ 3583(d)(1)). The Special Conditions also may not involve any “greater deprivation of
liberty than is reasonably necessary” to fulfill those goals. 18 U.S.C. § 3583(d)(2).
In determining whether these requirements have been met, “‘courts of appeals have
consistently required district courts to set forth factual findings to justify special probation
conditions.’” United States v. Voelker, 489 F.3d 139, 144 (3d Cir. 2007) (quoting United
States v. Warren, 186 F.3d 358, 366 (3d Cir. 1999)); see also Loy, 191 F.3d at 371 (“[T]he
sentencing judge is required by statute to state the reasons in open court for imposing a
particular sentence.” (citing 18 U.S.C. § 3553(c))). Where a sentencing judge has not
made such findings, “we may nevertheless affirm if we can ascertain any viable basis for
the restriction in the record before the District Court.” Voelker, 489 F.3d at 144 (citation
and quotation marks omitted). We decline to do so here because we find the record
insufficiently developed to conduct an appropriate review.
A. Prohibition of Computers with Internet Access
Our Court has held that a ban on internet access involves a greater deprivation of

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liberty than is reasonably necessary where there is no evidence that the defendant used the
internet to contact young children or solicit inappropriate sexual contact with them.
United States v. Freeman, 316 F.3d 386, 391-92 (3d Cir. 2003). Instead, we found that “a
more focused restriction, limited to pornography sites and images, can be enforced by
unannounced inspections of material stored on [the defendant’s] hard drive or removable
disks.” Id.
Here, there is no evidence that Kesting had any sexual contact with young children;
indeed, his offense appears to be limited to the pedophilic influence of Thielemann. On
remand, the District Court should consider whether more limited measures, such as
unannounced inspections, could satisfy the goals of Kesting’s sentence. See also United
States v. Sofsky, 287 F.3d 122, 126-27 (2d Cir. 2002).
Some inquiry also may be appropriate as to Kesting’s occupational prospects. In
Voelker, we remanded a lifetime ban on computers and the internet in part because
Voelker had been employed as a respiratory therapist prior to his arrest, and we found it
“hard to imagine how he could remain employed in that or any similar occupation absent
access to computer equipment.” 489 F.3d at 149; see also United States v.
Perazza-Mercado, 553 F.3d 65, 72 (1st Cir. 2009) (stating that an internet ban would be
“an excessive deprivation of liberty if it prevented him from engaging in the kind of
educational and vocational training required for the transition from his prior employment
as a teacher into a new and appropriate career”); United States v. Peterson, 248 F.3d 79,

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83-84 (2d Cir. 2001) (finding that a computer ban constituted an occupational restriction
where defendant had consistently worked in computer-related jobs); cf. United States v.
Mark, 425 F.3d 505 (8th Cir. 2005) (vacating an internet ban where defendant was a
computer consultant and his offense only involved simple possession). Although the
record in this case only notes Kesting’s prior work experience as a service technician for a
swimming pool, his relative youth, combined with the fact that his offense was simple
possession, might favor leaving open the possibility of future employment in an
occupation that requires the use of internet-enabled computers.
B. Prohibition of Sexually Explicit Materials
Our Court has also noted that “[a]lthough the District Court could, perfectly
consonant with the Constitution, restrict an offender’s access to sexually oriented
materials, such a restriction must have a nexus to the goals of supervised release.”
Voelker, 489 F.3d at 150 (citation and quotation marks omitted). The record must suggest
at a minimum that sexually explicit material involving only adults contributed to the
offense or that viewing such material would cause the defendant to reoffend. See id. at
151. No such nexus appears to be present here, and the District Court’s failure to explain
its reasons provides no support to the contrary.
We note that we are affirming an identically worded ban in the companion case,
United States v. Thielemann, ___ F.3d ___ (3d Cir. 2009), because we determined on that
record that Thielemann’s use of child pornography was driven by his sexual attraction to

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adults. Accordingly, the Special Condition was warranted in his case because arousal by
adult images might contribute to Thielemann’s recidivism, and therefore stimulate a return
to child abuse by Thielemann and his associates. Moreover, depriving Thielemann of
sexually explicit materials would aid in Thielemann’s rehabilitation. Kesting, however,
was not an initiator of the child victimization that Thielemann encouraged, although
Kesting acceded to Thielemann’s entreaties. Perhaps, on remand, the District Court might
determine that sexually explicit material involving only adults would also likely lead
Kesting into recidivist behavior. If so, however, that determination should be made only
after a “careful and sensitive individualized assessment.” Voelker, 489 F.3d at 144
(quoting United States v. Johnson, 446 F.3d 272, 282 n.2 (2d Cir. 2006)).
C. Prohibition on Association with Children
Finally, Kesting complains that the condition restricting his interactions with minor
children is overly broad because it would prevent him from seeing members of his own
family. In United States v. Loy, 237 F.3d 251 (3d Cir. 2001), the defendant appealed a
similar condition, prohibiting any unsupervised contact with minors, on the grounds that it
violated his fundamental right to procreate and his fundamental right to familial integrity.
Id. at 269 (citing Skinner v. Oklahoma, 316 U.S. 535, 541 (1942), and Gruenke v. Seip,
225 F.3d 290, 303 (3d Cir. 2000)). Rather than strike the condition as overbroad, our
Court held that the condition “should be construed to apply only to other people’s children,
and not to Loy’s own.” Id. at 270. On remand, the District Court can determine whether a

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similar narrowing construction applies. Compare Voelker, 489 F.3d at 154 (remanding for
clarification of whether the district court had intended to apply the restriction to
defendant’s own family where defendant had exposed his daughter over the internet).
The other scenarios raised by Kesting are less problematic. The possibility of
inadvertent or unavoidable contact with minors does not invalidate the condition because
“it is well established that associational conditions do not extend to casual or chance
meetings.” Loy, 237 F.3d at 269 (citations omitted). Nor do family holidays raise
difficulties since Kesting may attend such events as long as he provides third party
notification and receives prior approval of the court.
The record is silent as to Kesting’s marital and parental status. Thus, while we
follow our decision in Loy regarding minors, and keeping Kesting from access to them, we
are at a disadvantage in approving the condition which the District Court imposed. Until
we are informed through the record of the District Court’s reasons for imposing this
restriction on Kesting, and the evidence on which it rests, we cannot rule responsibly on
this issue.
III.
For the foregoing reasons, we vacate the challenged conditions of supervised
release and remand to the District Court for further proceedings consistent with this
opinion.

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