United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
RUDY LOZANO, District Judge.
This matter is before the Court on the Motion for Modification of Conditions of Probation, filed by Defendant, Jeffrey P. Taylor, through counsel, on September 25, 2014 (DE #79). For the reasons set forth below, the motion (DE #79) is GRANTED IN PART and DENIED IN PART. THE TERMS OF CONDITION OF PROBATION SHALL BE MODIFIED AS SET FORTH IN THIS ORDER.
Taylor was convicted in cause number 2:06-CR-169, of attempting to violate 18 U.S.C. § 2242(b), enticing a minor to engage in sexual activity. Taylor appealed, and the Seventh Circuit held that masturbation was not a "sexual activity" under § 2422(b), and reversed Taylor's conviction. United States v. Taylor, 640 F.3d 255 (7th Cir. 2011).
Taylor was retried and convicted of two counts of violating 18 U.S.C. § 1470, attempting to transfer obscene material to an individual under the age of 16. The indictment alleges that Taylor sent live webcams of himself while masturbating to an individual he believed to be under the age of 16, who was actually an undercover agent. This case does not involve any attempted physical contact with the agent; however, testimony at trial showed Taylor used sexual innuendo and sexual language during multiple chats, directed the individual he believed was a minor (but was an undercover agent) to masturbate for him, and displayed himself and masturbated for the agent. Although it did not come into evidence at trial, files were found on Defendant's computer regarding his Internet history showing he had visited various sites involving either photographs or stories in which minor children engaged in sexual conduct with adults.
Taylor is currently serving a 3 year term of probation, imposed on August 8, 2012, following his conviction, and while awaiting the Seventh Circuit's judgment on his direct appeal. He filed the instant motion pursuant to 18 U.S.C. §3563(c), and this Court has jurisdiction to modify his probation conditions. 18 U.S.C. § 3563(c); Fed. R. Crim. P. 32.1(c).
1. Condition Regarding Pornography
Condition: "The defendant shall not view or listen to any form of pornography, sexually stimulating material, or sexually oriented material or patronize locations where such material is available."
Taylor argues this condition is unconstitutional in its entirety under United States v. Adkins, 743 F.3d 176, 193-94 (7th Cir. 2014), because the activity charged does not relate to viewing pornography, and therefore, the condition should be removed. (DE #79, p. 3.)
In response, the Government agrees that pursuant to Adkins, the condition is in part unconstitutional. (DE #81, p. 5.) The Seventh Circuit stated in Adkins that:
We recognize the difficulty of drafting special conditions in this context. We therefore emphasize that various options remain open, including (1) defining the crucial terms in the existing special condition in a way that (a) provides clear notice to Adkins (preferably through objective rather than subjective terms), (b) includes a mens rea requirement (such as intentional conduct), and/or (c) is not broader than reasonably necessary to achieve the goals of 18 U.S.C. § 3553(a)(2)(b), (a)(2)(c), and (a)(2)(D), see § 3583(d); and (2) narrowing the scope of proscribed conduct, such as by (a) focusing on child pornography, which federal statutes objectively define, see, e.g., 18 U.S.C. § 2256(8), and/or (b) focusing on particular establishments such as strip clubs, adult bookstores, and adult theaters.
Adkins, 743 F.3d at 196 (emphasis in original). The Government argues that Taylor's request that the condition should be removed because Taylor's offense did not relate to viewing pornography misses the mark, because he created pornography by sending videos of himself masturbating and requested the person he believed was a 13 year old to create pornography by asking her to masturbate on a web cam. Consequently, the Government proposes the following modification:
"The defendant shall not knowingly view or listen to any form of pornography which contains adults engaging in sexual intercourse, oral sex, sex with objects or animals, acts of masturbation, or the lascivious exhibition of genitalia. Additionally, the defendant shall not knowingly patronize or visit any such establishment or ...