United States of America v. Paul R. Thielemann

The Honorable Thomas I. Vanaskie, United States District*
Judge for the Middle District of Pennsylvania, sitting by
designation.
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 08-2335
__________
UNITED STATES OF AMERICA,
v.
PAUL R. THIELEMANN,
Appellant
__________
Appeal from the United States District Court
for the District of Delaware
(D.C. No. 1-07-cr-00091-1)
District Judge: Honorable Sue L. Robinson
___________
Argued May 20, 2009
___________
Before: RENDELL and GARTH, Circuit Judges, and
VANASKIE, District Judge*

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2
(Opinion Filed: August 3, 2009)
LARRICK B. STAPLETON, ESQUIRE (ARGUED)
50 Rittenhouse Place
Ardmore, PA 19003
Attorney for Appellant
EDMOND FALGOWSKI, ESQUIRE (ARGUED)
Assistant United States Attorney
Office of the United States Attorney
1007 North Orange Street, Suite 700
P.O. Box 2046
Wilmington, DE 19899
Attorney for Appellee
___________
OPINION
___________
GARTH, Circuit Judge:
The defendant, Paul Thielemann, was indicted and
pleaded guilty to one count of receiving child pornography. He
was sentenced to the statutory maximum of 240 months of
imprisonment, plus 10 years of supervised release subject to a
number of conditions, including two Special Conditions of
Supervision.
Thielemann appeals his prison sentence because the

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Phillips is a co-defendant who eventually pleaded guilty to1
distribution of child pornography in violation of 18 U.S.C.
§ 2252A(a)(1) & (b)(1). He received a 240-month sentence.
3
District Court considered non-charged relevant conduct in
fashioning his sentence. Thielemann also challenges the two
Special Conditions of Supervised Release imposed by the
District Court. These conditions restricted Thielemann’s
computer use and his viewing of sexually explicit material.
We reject Thielemann’s arguments concerning his
relevant conduct and we conclude that both Special Conditions
of Supervised Release must be upheld. In particular, we hold
that restricting Thielemann’s possession and viewing of sexually
explicit material, as defined in 18 U.S.C. § 2256(2)(A), does not
violate the Constitution. Accordingly, we will affirm the
District Court’s judgment and sentence of April 30, 2008.
I.
On January 19, 2007, Thielemann transmitted child
pornography to another internet user through his America
Online e-mail. America Online detected the transmission and
reported it to the Delaware State Police (“DSP”), who executed
a search warrant and seized Thielemann’s computer on February
23, 2007. The DSP found several hundred pornographic images
of children, as well as computerized logs of online “chats” with
Christopher Phillips (“Phillips”), an internet user with whom1

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We reproduce, infra, a segment of a “chat” between2
Thielemann and Phillips on June 11, 2006, as an example of the
“chats” that took place between these two men.
4
Thielemann had a sexual relationship.2
The transcripts of the online “chats” revealed, among
other things, that after boasting about a number of alleged
sexual encounters with minors, Thielemann encouraged Phillips
to have sex with an eight-year-old victim – a female child whom
Phillips could control (“the victim”).
Thielemann then sent Phillips a picture of a toddler
performing a sexual act on an adult male and claimed the picture
depicted him (Thielemann) and a minor over whom Thielemann
had control. Thielemann offered to “walk [Phillips] through”
these sex acts with the victim.
Later, Thielemann offered Phillips $20 to turn on his web
cam and place the victim on Phillips’s lap so the victim would
see Thielemann’s exposed penis. Phillips complied.
Thielemann then offered Phillips $100 to rub the victim’s
genitals and lift up her skirt, which Phillips did. The “chat”
transcript implies that Phillips also exposed himself to the
victim. Thielemann then asked Phillips to masturbate with the
victim on his lap, but it is unclear if Phillips did so.
These saved “chat” files on Thielemann’s computer led
the police to Phillips, who denied exposing himself to the victim

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The victim contradicted Phillips’s statement: “During the3
initial interview, when asked if she ever had to touch a male
penis, the 8 year old girl [identified Phillips].” App. 68.
Thielemann had also engaged in explicit chats with other4
men during which he discussed having sexual relations with
children, and sent and received child pornography. A number
of Thielemann’s associates were separately indicted and pleaded
5
or touching her inappropriately. Thielemann later claimed he3
did not know the child was on the web cam.
On June 26, 2007, a Grand Jury convened in the United
States District Court for the District of Delaware and returned
an eighteen-count indictment against Thielemann charging him
with the following: Counts One and Two, production of child
pornography and conspiracy to produce child pornography in
violation of 18 U.S.C. § 2251(a) & (e); Counts Three through
Six, receipt of child pornography in violation of 18 U.S.C.
§ 2252A(a)(2) & (b)(1); Counts Seven through Eleven,
distribution of child pornography in violation of 18 U.S.C. §
2252A(a)(1) & (b)(1); Count Twelve, possession of child
pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) &
(b)(2); Counts Thirteen through Seventeen, receipt/distribution
of obscenity depicting children in violation of 18 U.S.C.
§§ 1466A(a)(2)(A) & (B), and 2252A(b)(1); and Count
Eighteen, possession of obscenity depicting children in violation
of 18 U.S.C. §§ 1466A(b)(2)(A) & (B), and 2252A(b)(2). The
offense conduct charged in this indictment occurred between
June 16, 2006, and February 23, 2007.4

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guilty to various similar charges.
Thielemann’s counsel complained that he had been denied5
access to the computer hard drive and files. We are satisfied
that the Government’s disclosure of the printed copies of the
“chats” and its offer to reveal all of the computerized
information in the presence of a DSP computer expert satisfied
any discovery challenge.
Indeed, after the Government offered access to the hard
drive, and Thielemann’s counsel met with a DSP official,
Thielemann’s counsel never requested another meeting or any
further access. Moreover, the District Court offered to continue
6
Prior to trial, the Government disclosed copies of the
“chat” logs to Thielemann. However, on October 12, 2007,
Thielemann moved to compel production of a copy of his
computer’s entire hard drive. The Government refused to
produce it, citing 18 U.S.C. § 3509(m)(2)(A), which provides:
Notwithstanding Rule 16 of the Federal Rules of
Criminal Procedure, a court shall deny, in any
criminal proceeding, any request by the defendant
to copy, photograph, duplicate, or otherwise
reproduce any property or material that constitutes
child pornography . . ., so long as the Government
makes the property or material reasonably
available to the defendant.
The Government told Thielemann he would have sufficient
access to the computer files.5

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Thielemann’s sentencing hearing so that Thielemann’s forensic
expert could conduct an examination of the computer if
Thielemann so desired. Thielemann declined. Additionally, at
no point on appeal was the issue of access raised other than in
connection with relevant conduct. We conclude that
Thielemann’s argument has no merit.
As noted above, Thielemann pleaded guilty to receipt of6
child pornography in violation of 18 U.S.C. § 2252A(a)(2) &
(b)(1). The statutory index of the Sentencing Guidelines
(Appendix A) identifies U.S.S.G. § 2G2.2 as the Chapter 2
Offense Guideline applicable to § 2252A.
7
On January 18, 2008, Thielemann pleaded guilty to a
one-count Information charging him with receipt of child
pornography (18 U.S.C. § 2252A(a)(2) & (b)(1)). In the
Memorandum of Plea Agreement, Thielemann admitted that he
engaged in “chats” with Phillips, and that during a “chat,”
Phillips “had on his lap a minor, visible to the defendant, and at
the defendant’s encouragement and inducement [Phillips] did
simulate masturbation of the minor, and did pose the minor in
order to effect the lascivious exhibition of the minor’s pubic
area.” App. 40. Thielemann accordingly suspended his motions
to compel production of evidence.
II.
At sentencing the District Court initially applied U.S.S.G.
§ 2G2.2, which in this case carried a base offense level of 22.6
However, the court relied on the “cross-reference” in U.S.S.G.

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We are satisfied that the District Court properly determined7
Thielemann’s offense level. As the Government pointed out:
“[t]here is no ambiguity in the Memorandum of Plea Agreement
or Sections 1B1.2 and 2G2.2(c)(1). The defendant’s rule of
lenity argument is without merit . . . .” Gov’t Br. 37.
8
§ 2G2.2(c), which directs district courts instead to utilize
U.S.S.G. § 2G2.1 if: (1) “the offense involved causing,
transporting, permitting, or offering or seeking by notice or
advertisement, a minor to engage in sexually explicit conduct for
the purpose of producing a visual depiction of such conduct,”
and (2) the resulting offense level is greater than under U.S.S.G.
§ 2G2.2.
The District Court looked to Thielemann’s
encouragement of the molestation of the victim and accordingly
applied U.S.S.G. § 2G2.1, which carried a base offense level of
32. Thielemann argued that the District Court should not have
taken this relevant uncharged conduct into account. However,
the cross-reference and related Guidelines provisions and
application notes direct the District Court to do so, and the
District Court properly considered Thielemann’s involvement in
the molestation of the victim. See United States v. Garcia, 411
F.3d 1173, 1176-78 (10th Cir. 2005).
Thus, under U.S.S.G. § 2G2.1, the District Court
increased Thielemann’s base offense level by 10 points and gave
him a three-point credit for acceptance of responsibility, leaving
the Guidelines sentence in excess of the statutory maximum of
240 months.7

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Further, the evidence of the many “chats” and the
encouragement of sexual activity with minors clearly established
that Thielemann’s actions were part of a common plan and
course of practice that were relevant to his charged conduct.
“Sexually explicit conduct,” for purposes of this Special8
Condition, is defined pursuant to the child pornography statute,
and includes: “actual or simulated (i) sexual intercourse,
including genital-genital, oral-genital, anal-genital, or oral-anal,
whether between persons of the same or opposite sex; (ii)
bestiality; (iii) masturbation; (iv) sadistic or masochistic abuse;
or (v) lascivious exhibition of the genitals or pubic area of any
person.” 18 U.S.C. § 2256(2)(A).
9
The District Court then sentenced Thielemann to the
statutory maximum of 240 months and imposed a ten-year term
of supervised release, including several Special Conditions, two
of which Thielemann challenges on appeal: Thielemann is
prevented from (1) “own[ing] or operat[ing] a personal
computer with Internet access in a home or at any other location,
including employment, without prior written approval of the
Probation Office”; and (2) “possess[ing] or view[ing] any
materials, including pictures, photographs, books, writings,
drawings or video games depicting and/or describing sexually
explicit conduct defined in Title 18 of the United States Code,8
Section 2256(2).” App. 154-55.
The District Court entered judgment on April 30, 2008,
and Thielemann timely appealed. We have jurisdiction under 28
U.S.C. § 1291 and 18 U.S.C. § 3742(a). The District Court had

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Plain error requires that there be an error, that the error be9
plain, and that the plain error affect substantial rights. Olano,
507 U.S. at 732-34. “Affect substantial rights” generally
“means that the error must have been prejudicial: It must have
affected the outcome of the district court proceedings.” Id. at
734. As we hold in the text, infra, we conclude that the District
Court did not err.
10
jurisdiction pursuant to 18 U.S.C. § 3231.
We review the substance of Thielemann’s sentence for
abuse of discretion. United States v. Wise, 515 F.3d 207, 218
(3d Cir. 2008). We generally review Special Conditions of
Supervised Release for abuse of discretion. United States v.
Smith, 445 F.3d 713, 716 (3d Cir. 2006). Our review here is for
plain error because Thielemann did not object in the District
Court. United States v. Voelker, 489 F.3d 139, 143 n.1 (3d Cir.
2007); United States v. Olano, 507 U.S. 725 (1993).9
III.
If a sentence “falls within the broad range of possible
sentences that can be considered reasonable in light of the §
3553(a) factors, we must affirm.” Wise, 515 F.3d at 218. “The
record must demonstrate the trial court gave meaningful
consideration to the § 3553(a) factors.” United States v.
Cooper, 437 F.3d 324, 329 (3d Cir. 2006). Thielemann argues
the District Court did not consider his unique personal
circumstances.

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Thielemann erroneously contends that the District Court10
accused him of being the “ringleader” of a chatroom. Rather,
the District Court accurately stated that Thielemann initiated
contact with other consumers of child pornography. App. 138,
151.
The Government’s brief at page 39 recites:11
O f th e d e f e n d a n t’s e ig h t a s s o c ia te s
simultaneously prosecuted in the district court,
only Christopher Phillips was sentenced to 240
months incarceration, and that occurred in the
week following the defendant’s sentencing. PSR
11
The District Court’s analysis under 18 U.S.C. § 3553(a)
was informed and adequate. Cf. United States v. Lessner, 498
F.3d 185, 203-05 (3d Cir. 2007). The court considered the
“history and characteristics of the defendant” when it found that
Thielemann was not “a victim” but “a predator in his own right”
despite having “[a supportive family] [,] a history of being
gainfully employed,” and no criminal record. App. 151-52.
Despite the multitude and content of the “chats” initiated by
Thielemann, and his inducing and encouraging pleas to his
associates to engage children in their respective sexual activities,
the District Court assumed Thielemann was not predisposed to
harm children but was, as stated, a predator. App. 151. The
court considered “the nature and circumstances of the offense”
when it found Thielemann “initiated most of the contact and
conversations related to the charges.” App. 151.10
The District Court considered “the need to avoid
unwarranted sentence disparities” when it noted that it was
responsible “for sentencing many of those individuals who were
charged” in connection with Thielemann and took “those
sentences and those defendants’ conduct into account in making
sure that the sentencings are consistent.” App. 151. Without11

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10. Lee Blotzer was sentence[d] to 155 months
incarceration on March 10, 2008, for distribution
of child pornography. PSR 9. The remaining six
defendants were sentenced to between 22 months
and 60 months incarceration, with five of the
defendants being sentenced for possession of
child pornography, which carries a ten year
maximum sentence.
PSR 11-15.
12
elaboration, the District Court found that Thielemann’s sentence
“recognizes the need for punishment, deterrence, protection of
the public and rehabilitation for the defendant.” App. 152.
Sentencing courts need not “discuss and make findings
as to each of the § 3553(a) factors if the record makes clear the
court took the factors into account in sentencing.” Cooper, 437
F.3d at 329. While the District Court here did not fully discuss
all of the § 3553(a) factors, it is clear that the court took them all
into consideration.
Furthermore, the District Court issued a within-
Guidelines sentence falling into the range of those considered
reasonable. See United States v. Hoffecker, 530 F.3d 137, 204
(3d Cir. 2008) (“Although we do not deem a within-Guidelines
sentence presumptively reasonable, it is ‘more likely to be
reasonable than one that lies outside the advisory guidelines
range.’ Cooper, 437 F.3d at 331.”). The District Court did not

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Thielemann also contends that the District Court erred in12
increasing his sentence based on U.S.S.G. § 2G2.1(b)(6)(B),
which provides for a two-point sentencing enhancement when
the persuasion, inducement, enticement, coercion, or solicitation
of a minor for sexually explicit conduct is achieved by use of a
computer. He claims that because nearly all child pornography
is transmitted over the internet, this sentence enhancement for
computer usage is redundant. Thielemann offers neither facts
nor law to support his argument.
Moreover, sentencing courts may disagree with the
Guidelines based on policy, Kimbrough v. United States, 552
U.S. 85, 128 S. Ct. 558, 570, 575 (2007), Spears v. United
States, 129 S. Ct. 840, 843 (2009), but the District Court in this
case did not. Because Thielemann’s sentence was otherwise
reasonable, no justification exists for reversing the District
Court because of its reliance on a currently valid Guideline.
13
abuse its discretion.12
IV.
District courts may impose special conditions of
supervised release, but such conditions must be “reasonably
related to the factors set forth in [§ 3553(a)]” and must
“involve[] no greater deprivation of liberty than is reasonably
necessary” to deter future crime, protect the public, and
rehabilitate the defendant. 18 U.S.C. § 3583(d)(1)-(2); Voelker,
489 F.3d at 144 (requiring some evidence of a tangible
relationship between the terms of supervised release and the
offense or the history of the defendant).
On appeal, Thielemann claims that two special conditions
(restricting his access to computers and sexually explicit
material) were imposed in error. However, Thielemann
registered no objection to these conditions in the District Court.

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A ban on sexually explicit material involving children is,13
of course, reasonable, but unnecessary considering child
pornography is already illegal “and the statutorily mandated
conditions of supervised release require [defendants] to comply
with” child pornography laws. United States v. Voelker, 489
F.3d 139, 151 (3d Cir. 2007).
14
We accordingly review for plain error. See supra note 9. We
hold that the District Court did not err when it required
Thielemann to comply with these conditions.
A. “Sexually Explicit” Material Restriction
District courts generally must make factual findings to
justify special terms of supervised release. Voelker, 489 F.3d at
144. If a court does not explain its reasons, “we may
nevertheless affirm the condition if we can ‘ascertain any viable
basis for the . . . restriction in the record before the District
Court . . . on our own.’” Id. (citation omitted).
While the District Court did not specifically explain its
rationale in barring Thielemann from sexually explicit materials,
the record clearly shows that the District Court’s purpose was to
rehabilitate Thielemann, to protect children, and to deter future
criminal activity.
We have held that “District Court[s] could, perfectly
consonant with the Constitution, restrict [a defendant’s] access
to sexually oriented materials” if, like any other restriction, the
term had a clear nexus to the goals of supervised release. United
States v. Loy, 237 F.3d 251, 267 (3d Cir. 2001). However,
“there are First Amendment implications for a ban that extends
to explicit material involving adults.” Voelker, 489 F.3d at13
151. When a ban restricts access to material protected by the

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Protected materials include “nonobscene, sexually explicit14
materials involving persons over the age of 17.” United States
v. X-Citement Video, Inc., 513 U.S. 64, 72 (1994).
We recognize that a term of supervised release restricting15
access to adult sexually oriented materials must be “narrowly
tailored,” i.e., that the restriction must result in a benefit to
public safety. United States v. Loy, 237 F.3d 251, 266 (3d Cir.
2001).
15
First Amendment, courts must balance the § 3553(a)14
considerations “against the serious First Amendment concerns
endemic in such a restriction.” Id. It is evident that the15
District Court’s restriction in this case would protect children
from the predatory conduct of Thielemann and thus could
contribute to Thielemann’s rehabilitation. Accordingly, the
purposes served by the Special Condition far outweigh any
Constitutional concerns raised in Loy and Voelker.
In Loy, we rejected a condition which prohibited Loy
from possessing pornography. Loy had pleaded guilty to receipt
of child pornography. His terms of supervised release included
a provision prohibiting him from possessing “all forms of
pornography, including legal adult pornography.” Loy, 237 F.3d
at 253. We noted that restrictions on sexual materials were
generally permissible because “almost any restriction upon
sexually explicit material may well aid in rehabilitation and
protection of the public. Only in the exceptional case, where a
ban could apply to any art form that employs nudity, will a
defendant’s exercise of First Amendment rights be
unconstitutionally circumscribed or chilled.” Id. at 266.
However, after discussing the mercurial meaning of the
term “pornography,” we held that the provision was (1) overly
broad and violated the First Amendment because it “might apply

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The “sexually explicit” materials condition in Voelker is16
nearly identical to the analogous Special Condition at issue in
this appeal.
16
to a wide swath of work ranging from serious art to ubiquitous
advertising,” and that it was (2) unconstitutionally vague
because “its breadth is unclear.” Id. at 267.
Nonetheless, we suggested that “the Constitution would
not forbid a more tightly defined restriction on legal, adult
pornography, perhaps one that . . . borrowed applicable language
from the federal statutory definition of child pornography
located at 18 U.S.C. § 2256(8).” Id. Several years later, the
District Court in Voelker took heed of our suggestion and
handed down just such a reformulated restriction relying on 18
U.S.C. § 2256(2).
In Voelker, among other holdings, we overturned a
lifetime ban on Voelker’s access to sexually explicit material.
Voelker had pleaded guilty to possession of child pornography
after he was caught briefly exposing his three-year-old
daughter’s buttocks over web cam, and later admitted to
downloading pornographic images of children. United States v.
Voelker, 489 F.3d 139, 142 (3d Cir. 2007). The District Court
imposed a lifelong term of supervised release which, inter alia,
prohibited Voelker from possessing “any materials . . . depicting
and/or describing sexually explicit conduct as defined at Title
18, United States Code, Section 2256(2).” Id. at 143 (And, see
the definition of “sexually explicit conduct” at note 8, supra).16
Voelker argued that the condition violated the First Amendment
and involved a “greater deprivation of liberty than is reasonably
necessary to deter future criminal conduct and protect the
public.” Id. at 150.
We held in Voelker that a nexus between the restriction

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The children subjected to Thielemann’s sexual17
predilection may not, in the opinion of Thielemann’s
psychiatrist, be directly physically harmed by Thielemann, but
Dr. Rodgers, at no time, expressed herself about the
psychological trauma experienced by these abused children.
17
and the goals of supervised release was absent. Id. In
particular, we explained that “nothing on th[e] record suggests
that sexually explicit material involving only adults contributed
in any way to Voelker’s offense, nor is there any reason to
believe that viewing such material would cause Voelker to
reoffend.” Id. at 151 (emphasis added).
We do not read our precedents as foreclosing the use of
conditions banning access to sexually explicit adult materials,
particularly when children are victims and are victimized
sexually by adults as a means to gratify adult desires. Rather,
Loy stood for the proposition that a blanket ban on “all forms of
pornography” may be constitutionally infirm, but that more
limited provisions “borrow[ing] applicable language from the
federal statutory definition of child pornography,” Loy, 237 F.3d
at 267, are permissible. Whatever may be the parameters of
“pornography,” see id. at 263-65, the present record transcends
the characterization of mere pornography. Here, the record
reveals explicit child exploitation and victimization by
Thielemann in order to satisfy his sexual appetite for adult men.
Unlike in Voelker, there is overwhelming evidence in this
record to conclude that Thielemann’s exposure to sexual
material, albeit involving only adults, will contribute to future
offenses by Thielemann. The report of Thielemann’s own
forensic psychiatrist, Carla Rodgers, M.D., reiterates
Thielemann’s commingling of adult and child sexual conduct.
The report indicates that Thielemann “used [pornographic
images of children] in order to seduce heterosexual males into
allowing him to perform fellatio on them.” App. 119. While
Dr. Rodgers concluded that Thielemann’s primary interest was
in men, and that he was “not at risk of child molestation,” the
report clearly demonstrates Thielemann’s sexual predilections.17

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Can anyone doubt that an eight-year-old victim, abused by
Phillips under the direction of Thielemann, will be
psychologically scarred at present and during her later years?
The following terms appear in the text of the “chat” and18
require further clarification. On each line of the “chat” there is
a time stamp indicating when each instant message in the “chat”
was sent. The words preceding each time stamp are
Thielemann’s and Phillips’s respective computer user names.
Thielemann’s, “suckingunowinde,” stands for “sucking you now
in Delaware,” a reference to the performance of fellatio on
another man. The meaning of Phillips’s user name, “cp_2877,”
is not entirely clear, but “cp” presumably represents his initials
(Christopher Phillips), and “2877” may refer to his birth date or
some other significant number.
Several internet slang abbreviations are also used
repeatedly throughout the “chat.” The term “lol” is an
abbreviation for “laughing out loud” or “laugh out loud.” The
term “ur” is an abbreviation for “your” or “you’re.” The sole
18
Moreover, the “chats” unambiguously reveal that
Thielemann’s sexual experiences with adults and adult
pornography were inextricably linked to his sexual interest in
children. Thielemann made no secret of the fact that his desire
arose from adult men who are aroused and sexually excited by
children. Said Thielemann: “I used [children] to get what I
wanted. I wanted to see men turned on to their peak so they
could come and do stuff to me.” App. 149. Indeed, every one
of Thielemann’s adult sexual interactions with Phillips involved
children.
In order to understand Thielemann’s conduct vis-à-vis
children and Thielemann’s associates, Thielemann’s “chats”
with Phillips should be read. We reproduce just one small
segment of the June 11, 2006 “chat,” sickening as it is, to
illustrate the manner in which Thielemann used children to
obtain his sexual ends. The portion that we recount starts with
a summary preamble appearing in the Presentence Report at
paragraph 27, and continues with the actual “chat” through
paragraph 29. We explain the abbreviations in the margin.18

-- 18 of 25 --

letter “u” is an abbreviation for “you.” The term “b4” is an
abbreviation for “before.” The combination of a colon and
closed parenthesis, or :), creates a symbol representing a “smiley
face.” Any other spelling abnormalities were errors contained
in the original “chat” transcript.
19
27. On June 11, 2006, Phillips initiated an online chat with
Thielemann, who asked Phillips to turn on his web cam
so that Thielemann could masturbate while looking at
Phillips. Phillips said his web cam was broken and the
two men made plans to meet at a McDonald’s bathroom.
The continuing chat reflects that the two men discussed
that Thielemann was going to take a shower during
which he would take pictures of himself inserting his
fingers into his anus. After an approximate 30 minute
interruption in the chat conversation, Thielemann
indicated that he was downloading those pictures on his
computer and was preparing to send them to Phillips.
Thielemann soon said, “next we just got to work on [the
victim], just kidding ...” After saying he would have sex
with “a young young girl”, Thielemann sent to Phillips a
picture of an approximate 3 year old girl performing
fellatio on an adult male, Thielemann claiming that he
and [a minor victim Thielemann could control] were the
persons depicted in the image. When asked if he liked
the picture, Phillips said, “yeah cool.” Thielemann said
[the minor victim Thielemann could control] never told
anyone about the sexual contact because he was “suttle”
[subtle]:
28. suckingunowinde (Sun Jun 11 12:35:25 2006): I am
talking likle 10 12 lol
cp_2877 (Sun Jun 11 12:35:30 2006): lol
suckingunowinde (Sun Jun 11 12:35:32 2006): even
younger lol
cp_2877 (Sun Jun 11 12:35:38 2006): like thats posable
suckingunowinde (Sun Jun 11 12:35:52 2006): maybe
one day
suckingunowinde (Sun Jun 11 12:35:53 2006): never

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20
know
cp_2877 (Sun Jun 11 12:36:00 2006): have you ever
suckingunowinde (Sun Jun 11 12:36:07 2006): yes told
u that lol
suckingunowinde (Sun Jun 11 12:36:12 2006): never
with another guy though
suckingunowinde (Sun Jun 11 12:36:17 2006): but I have
by myself
suckingunowinde (Sun Jun 11 12:36:22 2006): even have
a picture to prove it lol
cp_2877 (Sun Jun 11 12:36:30 2006): yeah right
suckingunowinde (Sun Jun 11 12:36:38 2006): u want to
see
cp_2877 (Sun Jun 11 12:36:43 2006): sure
suckingunowinde (Sun Jun 11 12:37:00 2006): accpet
cp_2877 (Sun Jun 11 12:37:24 2006): cant you sare the
pic so I don’t have to download it
suckingunowinde (Sun Jun 11 12:37:30 2006): sure
cp_2877 (Sun Jun 11 12:37:38 2006): ok show
suckingunowinde (Sun Jun 11 12:37:45 2006): :) told u
cp_2877 (Sun Jun 11 12:38:05 2006): o my god
suckingunowinde (Sun Jun 11 12:38:13 2006): lol
cp_2877 (Sun Jun 11 12:38:32 2006): who is that
suckingunowinde (Sun Jun 11 12:38:37 2006): [a minor
victim Thielemann could control]
suckingunowinde (Sun Jun 11 12:38:40 2006): u likle it
or no
cp_2877 (Sun Jun 11 12:38:50 2006): she didnt tell on
you
suckingunowinde (Sun Jun 11 12:39:02 2006): no told u
so many times b4
suckingunowinde (Sun Jun 11 12:39:04 2006): no
suckingunowinde (Sun Jun 11 12:39:21 2006): same wa
with [the victim] if u do it while there young they will
forget all about it and all in like an hour so its all good
suckingunowinde (Sun Jun 11 12:39:25 2006): do u like
the picpture of no ???
cp_2877 (Sun Jun 11 12:39:42 2006): yeah cool
suckingunowinde (Sun Jun 11 12:39:47 2006): ok good
cp_2877 (Sun Jun 11 12:40:01 2006): well [the victim]

-- 20 of 25 --

21
is 8 and she will tell
suckingunowinde (Sun Jun 11 12:40:27 2006): not if u
do it in a suttle way like idid with her
suckingunowinde (Sun Jun 11 12:40:31 2006): I just
pulled it out and she went for it
suckingunowinde (Sun Jun 11 12:40:33 2006): lol
cp_2877 (Sun Jun 11 12:40:38 2006): lol
suckingunowinde (Sun Jun 11 12:40:49 2006): but who
knows I guess u know [the victim] better than me so
cp_2877 (Sun Jun 11 12:41:10 2006): yes and I wish she
wouldnt tell but she will
suckingunowinde (Sun Jun 11 12:42:00 2006): I odubt
she will why don’t u just try stuff like walking aaround
naked or comming out of the shower naked one day and
see what she says if she says antuhing then stop if not
then like next sit her on ur lap in front of the computer or
soomthing and get hard
suckingunowinde (Sun Jun 11 12:42:09 2006): just try
little stuff like that at first and see what she says u know
cp_2877 (Sun Jun 11 12:42:47 2006): yeah
suckingunowinde (Sun Jun 11 12:42:56 2006): so do u
really like that picture >
cp_2877 (Sun Jun 11 12:43:04 2006): yeaah
suckingunowinde (Sun Jun 11 12:43:10 2006): your not
gonna tell on me right
cp_2877 (Sun Jun 11 12:43:19 2006): no
suckingunowinde (Sun Jun 11 12:43:25 2006): ok good
suckingunowinde (Sun Jun 11 12:43:26 2006): :)
cp_2877 (Sun Jun 11 12:43:58 2006): well Im worked up
now
suckingunowinde (Sun Jun 11 12:44:06 2006): I am to
lol
cp_2877 (Sun Jun 11 12:44:26 2006): lol
suckingunowinde (Sun Jun 11 12:44:36 2006): see if she
was there now u could do little stuff just to see what she
will say I could walk u threw it lol
suckingunowinde (Sun Jun 11 12:45:08 2006): I have
never fucked her
suckingunowinde (Sun Jun 11 12:45:17 2006): I just had
her lick my dick and all came in her mouth

-- 21 of 25 --

Indeed, it is clear that the restriction on “sexually explicit”19
materials would encompass the activities Thielemann engaged
in with Phillips, including explicit web “chats,” transmission of
homemade pornography, and real-time sexual interactions over
web cam.
22
cp_2877 (Sun Jun 11 12:45:27 2006): o god don’t do that
you would be in truble
suckingunowinde (Sun Jun 11 12:45:43 2006): nah did it
4 times alreayd lol
29. On June 11, 2006, via web cam during an online chat
Thielemann watched Phillips masturbate.
App. 59-60.
As we held in Loy, 237 F.3d at 266, “almost any
restriction upon sexually explicit material may well aid in
rehabilitation and protection of the public.” Here, a reading of
the “chats” reveals that restricting Thielemann’s access to adult
sexually explicit material will undoubtedly aid in rehabilitation
and protection of the public.
Given Thielemann’s sexual desire for adult men who
abuse children, banning Thielemann from adult sexually explicit
material would be an additional deterrent to Thielemann’s
sexual arousal and sexual excitement, as it would preclude him
from including children in his future sexual experiences.19
Otherwise, exposure to adult sexually explicit material might
very well lead Thielemann to encourage his male associates
either to initiate or to continue their abuse of children.
In identifying this nexus between restriction and goals as
required by Voelker, the Government expressed its fears, which
we share. Our approval of the Special Condition which
precludes Thielemann from viewing and possessing sexually
explicit material was adverted to by the Government at oral
argument. We recite the relevant portions of that argument:

-- 22 of 25 --

23
And, so the risk is this: Do we let this man - do
we let this man look at adult pornography which
presumably is going to exercise his sexual libido?
Do we do that knowing that this man’s history is
through a long period of time, with many men, the
defendant intends to gratify that sexual interest in
adult men with the currency which is child
pornography. And I believe what the District
Court did in this case, and indicating that the
defendant can not have this sexually explicit
conduct, is to guard against the possibility that the
public has to be protected to [e]nsure that this will
not happen again. Because this is a pervasive
problem that this defendant had. It was not an
isolated episode. And, the other aspect of this is
that the population at risk . . . when we say
protection of the public, the specific population at
risk are the children. So that if the District Court
Judge permits the defendant to have access to
sexual and explicit material, this sexual explicit
material arouses a pattern in the defendant to
repeat this behavior. The population at risk,
indeed, are children. That’s a risk I submit that
the Court reasonably did not take.
Tr. of Oral Argument at 14.
We hold that there is a significant nexus between
restricting Thielemann from access to adult “sexually explicit”
material and the goals of supervised release, and that the
restriction here is not overbroad or vague considering the
content of the instant record. As such, First Amendment
implications are not involved. The balancing protocol required
by Voelker tilts heavily in favor of protection of the public and
children when we consider this record of “inciting to child
abuse.” We are fully satisfied that the very unusual situation
presented in this case thoroughly predominates over the First
Amendment concerns raised in Loy. Accordingly, the District
Court committed no error, let alone plain error, in requiring
Thielemann’s compliance with this Special Condition of

-- 23 of 25 --

24
Supervised Release. See United States v. Voelker, 489 F.3d
139, 143 n.1 (3d Cir. 2007); United States v. Olano, 507 U.S.
725 (1993).
B. Computer Restriction
The District Court’s rationale for imposing the computer
restriction is self-evident. Even a cursory reading of the record
(and the reproduced sample of the June 11, 2006 “chat,” supra)
and the evidence acknowledged by Thielemann when he pleaded
guilty, reveal that the offenses in this case evolved from the use
of a computer and the internet. The District Court clearly and
properly imposed the computer condition to deter future crimes
via the internet and to protect children.
The issue is whether this restriction was reasonably
related to the § 3553(a) factors and “involve[d] no greater
deprivation of liberty than is reasonably necessary” to meet
those goals. 18 U.S.C. § 3583(d)(1)-(2). An analysis of two of
our prior cases is instructive in this regard.
In United States v. Crandon, 173 F.3d 122 (3d Cir. 1999),
the defendant met a teenager on the internet and traveled across
state lines to take photos of their sexual encounter. Crandon
pleaded guilty to receipt of child pornography and the District
Court imposed a three-year ban prohibiting him from using any
“computer network, bulletin board, Internet, or exchange format
involving computers” without permission from the Probation
Office. Id. at 125. We upheld the provision because Crandon
used the internet to exploit a child, and the restriction would
deter him from future crimes and protect the public.
As noted above, in Voelker, the defendant challenged a
lifelong ban on using computers and the internet consequent to
a guilty plea to receipt of child pornography. We held that the
restriction was not narrowly tailored because it was lifelong,
contained no exceptions, and ignored the “ubiquitous presence
of the internet.” 489 F.3d at 144-46. The terms of
Thielemann’s supervised release are more analogous to those we
upheld in Crandon. See also United States v. Paul, 274 F.3d

-- 24 of 25 --

25
155, 167-70 (5th Cir. 2001).
Admittedly, “[c]omputers and Internet access have
become virtually indispensable in the modern world.” Voelker,
489 F.3d at 148 n.8 (citation and quotation marks omitted).
However, Thielemann can own or use a personal computer as
long as it is not connected to the internet; thus he is allowed to
use word processing programs and other benign software.
Further, he may seek permission from the Probation Office to
use the internet during the term of his ten-year restriction, which
is a far cry from the unyielding lifetime restriction in Voelker.
The parameters of the computer restriction in this case
are far less troubling than those in Voelker. Moreover, the
restriction is not disproportionate when viewed in the context of
Thielemann’s conduct. Thielemann did more than simply trade
child pornography; he utilized internet communication
technologies to facilitate, entice, and encourage the real-time
molestation of a child.
The restriction on computer and internet use therefore
shares a nexus to the goals of deterrence and protection of the
public, and does not involve a greater deprivation of liberty than
is necessary in this case. There was no plain error.
V.
For the reasons stated above, we affirm Thielemann’s
sentence and the two challenged Special Conditions of
Supervised Release.

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