In the

United States Court of Appeals

For the Seventh Circuit

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No. 02-1389

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DELBERT R. HOLM,

Defendant-Appellant.

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Appeal from the United States District Court 

for the Central District of Illinois.

No. 01-10011-001—Michael M. Mihm, Judge.

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ARGUED SEPTEMBER 19, 2002—DECIDED APRIL 9, 2003

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Before CUDAHY, DIANE P. WOOD, and WILLIAMS, Circuit

Judges.

DIANE P. WOOD, Circuit Judge. Delbert Holm is an

information system technologist. He is before us now

because he downloaded onto his home computer more than

100,000 pornographic images, approximately 10 to 20% of

which depicted underage children engaged in sexually

explicit activity. Although Holm has steadfastly maintained

that his possession of these materials was part of an

academic study of the subject, he nevertheless decided to

plead guilty to federal charges for violations of 18 U.S.C.

§ 2252(a)(4)(B), which makes it a crime to possess child

pornography. The district court imposed a 59-month sentence and a $20,000 fine. The court also imposed several
2 No. 02-1389

post-prison release conditions, including prohibitions on

unsupervised contact with children, possession of material

containing nudity, and use or possession of any computer

with Internet capability.

On appeal, Holm first presents a number of doomed

constitutional claims, several of which were resolved long

ago by the Supreme Court in New York v. Ferber, 458 U.S.

747 (1982), and the remainder of which require third-party

standing that Holm cannot establish. Holm’s next claim,

which is that the district court should have applied United

States Sentencing Guideline § 2G2.4, rather than § 2G2.2,

as the starting point for calculating his sentence, was

resolved favorably to him in our recent decision in United

States v. Sromalski, 318 F.3d 748 (7th Cir. 2003), and thus

it also requires little discussion. Finally, Holm challenges

several of the conditions of supervised release on the ground

that they are unduly burdensome. We agree that one is

indeed overbroad. We therefore affirm Holm’s conviction,

but we remand for further consideration of Holm’s sentence

and conditions of release. 

I

In July 2000, the Illinois State Police received an anonymous complaint that Holm was in possession of a large

amount of child pornography. The caller also advised the

police that Holm’s wife was aware of her husband’s problem

but did not know what to do about it. Based on this call,

agents contacted Mrs. Holm, who agreed to cooperate fully

and allowed agents to search the Holms’ home. The subsequent search uncovered computers and computer disks

containing the pornographic materials described above. An

indictment was filed on February 21, 2001, charging Holm

with one count of possessing child pornography in violation

of 18 U.S.C. § 2252(a)(4)(B), and one forfeiture count. Holm

filed a motion to dismiss the indictment on October 12,
No. 02-1389 3

2001. The district court denied the motion, at first orally

and then by written order.

After the district court orally denied Holm’s motion, a

jury trial commenced on October 15, 2001. The next day,

Holm agreed to a conditional guilty plea pursuant to FED.

R. CRIM. P. 11(a)(2), reserving the right to appeal the issues

raised in the pretrial motion to dismiss. After a sentencing

hearing on February 1, 2002, the court imposed its sentence. Judgment was entered on February 7, 2002, and

Holm filed a timely notice of appeal the next day.

II

We begin with a brief discussion of Holm’s constitutional

claims. First, he asserts that 18 U.S.C. § 2252’s prohibition

on child pornography is unconstitutionally overbroad because it criminalizes possession of materials with literary,

artistic, political, and scientific value. Holm argues in

particular that the district court erred when it summarily

rejected his claim that his possession of child pornographic

materials was necessitated by his scholarly study of the

efficacy of public and private efforts to police distribution.

His argument draws on the well-known test set forth in

Miller v. California, 413 U.S. 15 (1973), which governs what

materials are obscene and thus outside the protections of

the First Amendment. But as New York v. Ferber makes

clear, child pornography is a category of speech that is

separate and apart from obscenity. Ferber, 458 U.S. at 756.

Holm urges that the Supreme Court abandoned the Ferber

rule in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122

S.Ct. 1389 (2002), but the Court’s discussion in Free Speech

Coalition makes it plain that this is not so. That case

rejected only a ban on “virtual” child pornography, see 122

S.Ct. at 1402, while Holm pleaded guilty to possession of

pornography depicting real children. Holm also overlooks
4 No. 02-1389

the fact that the Court in Free Speech Coalition specifically

re-affirmed the continued vitality of the Ferber framework. Id.

Holm’s remaining constitutional claims can be raised only

if he has standing to assert third-party rights. For instance,

Holm asserts that the child pornography statute is unconstitutional because it criminalizes possession of child

pornographic materials by law enforcement and defense

attorneys involved in criminal cases. Similarly, Holm asserts that the amnesty provisions built into the statute at

18 U.S.C. § 2252(c)(2)(B), under which an individual who

inadvertently comes into possession of fewer than three

items can avoid criminal liability by immediately reporting

it, violate the Fifth Amendment right against self-incrimination. Third, Holm challenges as unconstitutionally vague

the affirmative defense contained at 18 U.S.C. § 2252(c)

(2)(A), whereby an individual who inadvertently comes into

possession of fewer than three items can insulate herself

from criminal liability if she takes “reasonable steps” to

destroy the materials. Finally, Holm contends that the

court’s imposition of a $20,000 fine violated his wife’s due

process rights because at least some of the funds in payment of the fine will be drawn from joint marital assets

without affording her notice and an opportunity to be heard.

We conclude that in none of these instances is Holm

entitled to assert the rights of the third party in question.

We recognize that in the First Amendment overbreadth

area, courts have taken a more liberal approach (under the

prudential branch of the standing doctrines) to the ability

of one private party to assert the rights of another party.

This typically occurs only where the court is convinced that

the party whose rights are most clearly implicated may

not be in a position to assert those rights effectively. See

Secretary of State v. Joseph H. Munson Co., 467 U.S. 947,

957 (1984) (quoting Broadrick v. Oklahoma, 413 U.S. 601,

612 (1973) and Dombrowski v. Pfister, 380 U.S. 479, 486
No. 02-1389 5

(1965)). In such situations, a court may grant third-party

standing to avoid “chilling” the free speech rights asserted.

Id. at 956.

That rationale does not apply to any of the third parties

Holm is supposedly trying to protect. It is unreasonable to

think that prosecutors and defense attorneys are being

chilled in their duties because of a fear of prosecution under

18 U.S.C. § 2252. We know of no case in which law enforcement or defense counsel have been subjected to prosecution

for possession of materials as evidence. Furthermore, there

is surely a useful distinction to be drawn between possession of prohibited materials and possession of evidence

relevant to a criminal proceeding. Indeed, the lack of reported decisions on the question suggests that prosecutors

have no trouble drawing the line between these two situations.

Holm’s Due Process and Fifth Amendment self-incrimination claims fare no better under the relatively more

stringent standing requirements that apply outside the

First Amendment context. In order to be able to proceed,

Holm would have to make three difficult showings: (1) that

he himself has standing to attack the statute; (2) that

he enjoys a special and pre-existing relationship with the

third party on whose behalf he wishes to raise a claim; and

(3) that there exist genuine and substantial barriers to

the third party’s assertion of rights. See, e.g., Powers v.

Ohio, 499 U.S. 400, 410-11 (1991); Singleton v. Wulff, 428

U.S. 106, 115 (1976); see also Miller v. Albright, 423 U.S.

420, 422 (1998) (O’Connor, J., concurring). Without stepping through all of the specifics, we find that Holm has

failed to carry his burden in several respects: for instance,

he cannot show a special and pre-existing relationship with

individuals who inadvertently download child pornography,

and there is no barrier to his wife’s raising a takings claim

on her own behalf. Holm has accordingly failed to establish
6 No. 02-1389

the necessary standing to bring his remaining constitutional claims.

III

In addition to his constitutional claims, Holm advances

the less ambitious claim that the district court erred at

sentencing by applying U.S.S.G. § 2G2.2 rather than

§ 2G2.4. The former Guideline applies to “trafficking” and

prescribes a base offense level of 17, while the latter applies

to possession and provides for a base offense level of 15. It

is enough for purposes of this opinion to note that the

offense of conviction here was the possession offense found

in 18 U.S.C. § 2252(a)(4)(B). Holm is therefore in precisely

the same position as was the defendant in Sromalski,

supra. For the reasons discussed in that opinion, we agree

with Holm that the proper Guideline to use was § 2G2.4,

and that the cross-reference to § 2G2.2 was not triggered on

these facts. Because there is no evidence in the record that

Holm at any point bought, sold, traded, bartered, or even

exchanged child pornographic materials with other individuals with an intent to traffic in those materials, we remand

to the district court for re-sentencing under § 2G2.4 of the

Sentencing Guidelines, using that Guideline’s base offense

level of 15.

IV

Holm next challenges various conditions of his supervised

release. A district court generally has wide discretion when

imposing special terms of supervised release. United States

v. Sines, 303 F.3d 793, 800 (7th Cir. 2002); United States v.

Guy, 174 F.3d 859, 861 (7th Cir. 1999). This discretion is

limited, however, by 18 U.S.C. § 3583(d), which provides

that a court may impose special post-release conditions only

when certain criteria are met. First, post-release conditions
No. 02-1389 7

must be reasonably related to the factors set forth in

§ 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D). See 18 U.S.C.

§ 3583(d). These factors include: (1) “the nature and circumstances of the offense and the history and characteristics of the defendant,” (2) the need “to afford adequate

deterrence to criminal conduct,” (3) the need “to protect the

public from further crimes of the defendant,” and (4) the

need “to provide the defendant with needed [training],

medical care, or other correctional treatment in the most

effective manner.” 18 U.S.C. § 3553(a)(1)-(2). In addition,

post-release conditions cannot involve a greater deprivation

of liberty than is reasonably necessary to achieve the latter

three statutory goals. See 18 U.S.C. § 3583(d)(2). 

Normally, we would review the special conditions the

district court imposed here for abuse of discretion. United

States v. Angle, 234 F.3d 326, 346 (7th Cir. 2000). In this

case, however, Holm’s discussion of the point is brief to the

point of brushing up against full-blown waiver. His entire

discussion of the subject is contained within slightly more

than a single page. That page includes no citations to

additional material in the record, beyond the court’s

judgment itself, that might help to illuminate the basic

contours of his claims.

The principal indication of which particular post-release

conditions Holm wants to challenge comes in the required

“Summary of Argument” section of his brief, where he

references two of the post-release conditions imposed by the

district court, including the prohibition on possession of

material containing nudity and the restriction on his

possession or use of computers with Internet capability. In

the subsequent “Argument” section, however, Holm refers

to two different conditions: the restrictions on “access to

children” and the requirement that he submit to “physiological testing.” He also comments that “defendant would even

be prohibited from viewing a copy of the Newsweek magazine showing the partially nude statue of Lady Justice that
8 No. 02-1389

recently was removed from the Justice Department in

Washington, D.C.” Presumably, he is arguing that possession of the magazine would violate the restriction on his

possession of material containing nudity. The “Argument”

section does not even mention let alone elaborate on his

claim from the “Summary of Argument” section that the

restriction on his use and possession of computer equipment

with Internet capability is overbroad. 

We have repeatedly warned that “perfunctory and undeveloped arguments, and arguments that are unsupported

by pertinent authority, are waived (even where those

arguments raise constitutional issues).” United States v.

Berkowitz, 927 F.2d 1376, 1384 (7th Cir. 1991); see also

FED. R. APP. P. 28(a)(4); United States v. Brown, 899 F.2d

677, 679 n.1 (7th Cir. 1990). “It is not the obligation of this

court to research and construct the legal arguments open to

parties, especially when they are represented by counsel.”

Beard v. Whitley County REMC, 840 F.2d 405, 408-09 (7th

Cir. 1988). This is true even in the criminal context. See

Sanchez v. Miller, 792 F.2d 694, 703 (7th Cir. 1986). In this

case, as we said before, Holm is right at the edge of waiver.

Because waived claims, unlike forfeited claims, cannot be

considered even under the plain error standard, however,

we do not find waiver lightly. Here, the brief and Holm’s

oral argument taken together give us a (barely) adequate

basis on which to follow his argument, and we thus look

briefly at his claims. 

Bearing in mind that we review only for abuse of discretion, we find no problem with any of the restrictions Holm

has identified except the one on his ability to possess or use

computers with Internet capability. As part of Holm’s

sentence, the district court imposed the following special

condition of supervised release:

You shall not possess or use a computer that is

equipped with a modem, that allows access to any part
No. 02-1389 9

of the Internet, e-mail service, or other “on-line” services. You shall not possess software expressly used for

connecting to online service, including e-mail, or installation disks for online services or e-mail.

We find that to the extent that the condition is intended

to be a total ban on Internet use, it sweeps more broadly

and imposes a greater deprivation on Holm’s liberty than is

necessary, and thus fails to satisfy the narrow tailoring

requirement of § 3583(d)(2). We understand why the district

court might have thought that a strict ban on all Internet

use was warranted, but such a ban renders modern life—in

which, for example, the government strongly encourages

taxpayers to file their returns electronically, where more

and more commerce is conducted on-line, and where vast

amounts of government information are communicated via

website—exceptionally difficult. 

Various forms of monitored Internet use might provide a

middle ground between the need to ensure that Holm never

again uses the Worldwide Web for illegal purposes and the

need to allow him to function in the modern world. At his

sentencing hearing, Holm noted his “almost 30-year history

of working in computerized telecommunications” and that

prohibiting him from use of computers with “network

connectivity” would “put a devastating burden on [his]

ability to be a productive person in this culture.” Moreover,

Holm presented undisputed evidence at his sentencing

hearing that he had not used any of the computer systems

at his place of work in committing his crimes. Because

Holm is most likely to find gainful employment in the

computer field upon his release, the conditions as currently

written could affect his future productivity and jeopardize

his rehabilitation in violation of the command of § 3583(d).

In United States v. Scott, 316 F.3d 733 (7th Cir. 2003),

this court decided that a total ban on access to Internet

services, imposed without advance notice to the defendant,
10 No. 02-1389

was impermissible given the open-ended and standardless

nature of the delegation of power to the probation officer.

Id. at 736. That case was remanded so that the district

court could consider a more narrowly tailored and precisely

articulated set of rules. Id. at 737. A similar approach is

warranted here. We find it notable that this court’s concerns in Scott are reflected in the decisions of our sister

circuits, which have also declined to uphold a total ban on

Internet access by defendants convicted of receiving child

pornography without at least some evidence of the defendant’s own outbound use of the Internet to initiate and

facilitate victimization of children. Compare United States

v. Paul, 274 F.3d 155, 169 (5th Cir. 2001) (upholding

Internet prohibition where defendant had used Internet

communication to encourage exploitation of children by

providing other pedophiles with advice on how to gain

access to child victims); United States v. Crandon, 173 F.3d

122, 127-28 (3d Cir. 1999) (upholding post-release ban on

Internet use where defendant convicted of receiving child

pornography had also engaged in sexual relations with an

underage girl he had met via electronic mail), with United

States v. Freeman, 316 F.3d 386, 391-92 (3d Cir. 2003)

(vacating absolute Internet prohibition in absence of

evidence that defendant had used Internet to contact

children); United States v. Sofsky, 287 F.3d 122, 126-27 (2d

Cir. 2002) (vacating and remanding strict Internet prohibition where defendant pleaded guilty to only receipt of child

pornography); United States v. White, 244 F.3d 1199, 1205

(10th Cir. 2001) (finding ban on all Internet and computer

use to be “greater than necessary” to serve goals of supervised release where defendant had been convicted only of

possession of child pornography). 

The condition at issue in White is similar to the one

imposed on Holm. Furthermore, the ban for Holm suffers

from the same lack of precision as did the condition in
No. 02-1389 11

Scott, supra. As currently worded, the condition on Holm’s

use or possession of computers is potentially too narrow

because, on its face at least, it appears to apply to modemequipped computers only (as opposed to those directly

linked by ethernet to a university system, for example). And

yet, it is also overly broad if construed as a strict ban on

Internet access. While parolees typically have fewer

constitutional rights than ordinary persons, see Morrisey v.

Brewer, 408 U.S. 471, 482 (1972); United States v. Loy, 237

F.3d 251, 259 (3d Cir. 2001), this is the early 21st century

equivalent of forbidding all telephone calls, or all newspapers. Without more evidence in the record that such a

drastic measure is appropriate for Holm, it cannot stand.

Just as in Scott, our decision today should not be interpreted as precluding the district court from imposing more

narrowly tailored restrictions on Holm’s Internet use. The

district court has already imposed the condition that Holm

be subjected to random searches of his computer and residence—a condition we find entirely reasonable. See Freeman, 316 F.3d at 392. Also, a variety of filtering software is

now available. Scott, 316 F.3d at 735; White, 244 F.3d at

1206. That software is becoming ever more effective, and

the court here may wish to consider imposing a requirement

that any computer Holm is permitted to use must be so

equipped. We are confident that the district court

can fashion precise restrictions that protect the childvictims used in Internet pornography and at the same time

reflect the realities of Holm’s rehabilitation prospects.

V

For the foregoing reasons, we AFFIRM Holm’s convictions

for receipt of child pornography, VACATE his sentence, and

REMAND to the district court for re-sentencing under

§ 2G2.4 of the Sentencing Guidelines without use of the
12 No. 02-1389

cross-reference to § 2G2.2, and for revision of the special

post-release conditions in a manner consistent with this

opinion.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—4-9-03