United States of America v. Gary Lee Smith

United States Court of Appeals
For the Eighth Circuit
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No. 19-3362
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Gary Lee Smith
lllllllllllllllllllllDefendant - Appellant
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No. 19-3520
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Gary Lee Smith
lllllllllllllllllllllDefendant - Appellant
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Appeals from United States District Court
for the Western District of Missouri - Joplin
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Submitted: April 15, 2020
Filed: June 5, 2020
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Before SMITH, Chief Judge, BENTON and KOBES, Circuit Judges.
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BENTON, Circuit Judge.
Appeal No. 19-3520
Gary Lee Smith appeals the district court’s order imposing a new condition of
supervised release. Smith was convicted in 2003 of producing, transporting, and
reproducing child pornography in violation of 18 U.S.C. §§ 2251(a), 2252(a)(1), and
2252(a)(2). The district court sentenced him to 235 months in prison, followed by 5
years of supervised release. This court affirmed. United States v. Smith, 367 F.3d
748, 751 (8th Cir. 2004). The district court denied his motion under 28 U.S.C.
§ 2255. Smith v. United States, 2006 WL 2338254, at *1 (W.D. Mo. Aug. 14, 2006),
aff’d, 256 Fed. Appx. 850, 851 (8th Cir. 2007), cert. denied, 552 U.S. 1270 (2008).
In 2019, Smith violated three conditions of supervised release. The district court1
imposed a new condition requiring polygraph testing. Smith appeals. Having
jurisdiction under 28 U.S.C. § 1291, this court affirms.
Smith began supervised release on August 30, 2019. Within weeks, the
probation officer reported he had violated three conditions of supervised release, to
(1) not commit another crime; (2) answer truthfully all inquiries by the officer and
follow the officer’s instructions; and (3) adhere to state registration and notification
procedures for sexual offenders. According to the officer, Smith tried to contact his
1The Honorable Brian C. Wimes, United States District Judge for the Western
District of Missouri.
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daughter over social media, by Twitter and Pinterest. He was permitted to access
computers only at the workforce center, not for social media purposes. By not
registering his Pinterest account as required by state law, he committed a felony. The
officer presented him with a waiver to add nine special conditions about computer use
and internet access, including a polygraph testing requirement. Smith refused to sign
the waiver and requested a hearing.
At the hearing, Smith denied the violations, introduced no evidence, but
stipulated that the probation officer would testify consistently with the violation
report. The district court found Smith committed the violations. The court imposed
the nine special conditions that the officer offered Smith. He specifically objected to
the condition to “successfully participate in a program of polygraph testing to assist
in treatment and/or monitoring, as directed by the Probation Office.” He
acknowledged that “it is a common thing for polygraph testing to be added to
conditions of supervision for certain defendants.” However, he asserted that
“polygraph testing is inherently unreliable,” “more of a stress monitor” than a “truth
monitor.” He did not believe polygraph testing was “a valid supervision tool.”
After considering the factors in 18 U.S.C. § 3553(a), a district court may
enlarge conditions of supervised release. 18 U.S.C. § 3583(e)(2). A special
condition must be (1) reasonably related to the factors in 18 U.S.C. § 3553(a); (2) no
greater deprivation of liberty than reasonably necessary for the purposes in 18 U.S.C.
§ 3553(a); and (3) consistent with any pertinent policy statements by the Sentencing
Commission. Id. § 3583(d); United States v. Thompson, 888 F.3d 347, 351 (8th Cir.
2018).
Smith argues that the special polygraph condition is not reasonably related to
any factors in § 3553(a). “This court reviews the imposition of special conditions of
supervised release for abuse of discretion.” United States v. Stelmacher, 891 F.3d
730, 733 (8th Cir. 2018). “District courts are encouraged to provide an explanation
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of how the conditions satisfy the requirements of § 3583(d), but where the basis for
the special conditions can be discerned from the record, reversal is not required.”
United States v. Simpson, 932 F.3d 1154, 1156 (8th Cir. 2019) (citing cases).
Here, although the district court did not explain how polygraph testing is
reasonably related to the § 3553(a) factors, the basis can be discerned from the record.
Smith was convicted of producing, transporting, and reproducing child pornography.
As he acknowledges, “it is a common thing for polygraph testing to be added to
conditions of supervision for certain defendants.” See United States v.
Muhlenbruch, 682 F.3d 1096, 1103 (8th Cir. 2012) (holding that a polygraph
condition was reasonably related to the offense of receiving child pornography); 18
U.S.C. § 3553(a)(1) (nature and circumstances of the offense).
At Smith’s original sentencing, he showed no remorse and recidivism. His
comments “blaming the victim and everybody but” himself “troubled” the district
court. The court found Smith showed “incorrigibility” by continuing to commit
sexual misconduct with minors even after his trial. The court found Smith was
“repeating this conduct and not having learned any type of lesson from it, not any
indication of any realization that the conduct is wrong.” The court said four times it
was “concerned” by this post-trial “uncharged conduct,” noting “graphic” and
“certainly disturbing” evidence. Smith’s remorselessness and incorrigibility support
polygraph testing. See 18 U.S.C. § 3553(a)(1) (history and characteristics of
defendant); § 3553(a)(2)(C) (protect public from further crimes). See also
Muhlenbruch, 682 F.3d at 1103 (upholding polygraph condition because defendant
falsely denied at trial he had downloaded child pornography).
Smith’s behavior during supervised release, reported by his probation officer,
supports the polygraph condition. After Smith initially went to the residential reentry
center, he had to return to prison “due to reports that he was speaking to other inmates
about child pornography” and “saving encrypted files” on the computers there.
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Within a month of his latest release, he created a Pinterest account and failed to
register it, violating state law. He was “contentious” with his probation officer
“regarding his conditions of release.” He was “argumentative when advised that he
will not be permitted to secure employment where he has access to unmonitored
computers.” He “routinely stated he is smarter than staff at the Residential Reentry
Center.” Smith’s unwillingness to obey rules restricting his access to child
pornography shows that polygraph testing is necessary to protect the public from
further crimes. See 18 U.S.C. § 3553(a)(2)(C). See also Simpson, 932 F.3d at 1156
(upholding polygraph condition because defendant repeatedly said he did not intend
to obey the terms of supervised release, repeatedly disobeying them); United States
v. Wiedower, 634 F.3d 490, 494 (8th Cir. 2011) (upholding polygraph condition
because defendant was convicted of possessing child pornography and “was not being
candid about his level of involvement”).
Smith’s sex-offender evaluation (another condition of his supervised release)
recommended he participate in polygraph testing. The testing will assist with his
correctional treatment. See 18 U.S.C. § 3553(a)(2)(D). Polygraph testing supports
the Sentencing Commission’s policy that sex offenders participate in a program for
treatment and monitoring. See U.S.S.G. § 5D1.3(d)(7)(A); United States v. Wright,
2020 WL 2123326, at *3 (8th Cir. May 5, 2020). See also 18 U.S.C. § 3553(a)(5)
(policy statements).
Smith also contends that the district court should have required that polygraph
testing be proven, legitimized, or otherwise validated as an effective tool. However,
Smith’s polygraph testing is for treatment, not for evidence at trial or sentencing. Cf.
United States v. Bagola, 796 F.3d 903, 908 (8th Cir. 2015) (noting that polygraph
evidence is disfavored in trials); Ortega v. United States, 270 F.3d 540, 547 (8th Cir.
2001) (rejecting polygraph evidence at sentencing).
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Smith’s special condition requiring polygraph testing is reasonably related to
the factors in § 3553(a). The district court did not abuse its discretion in imposing
it.
Appeal No. 19-3362
Smith appeals the district court’s denial of his motions for relief from several
decisions by the probation office, and for financial assistance. On appeal, Smith
presents no argument about these motions, and thus waives any challenges to them.
See Fed. R. App. P. 28(a)(8); Rotskoff v. Cooley, 438 F.3d 852, 854 (8th Cir. 2006)
(holding that party waived an issue because it was not developed in his briefs).
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The judgments are affirmed.
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