2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-3-2009

USA v. Paul Thielemann

Precedential or Non-Precedential: Precedential

Docket No. 08-2335

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Recommended Citation

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http://digitalcommons.law.villanova.edu/thirdcircuit_2009/756
 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*
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
 Phillips is a co-defendant who eventually pleaded guilty to 1

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 whom 1
 We reproduce, infra, a segment of a “chat” between 2

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
 The victim contradicted Phillips’s statement: “During the 3

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 other 4

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 he 3

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
guilty to various similar charges.

 Thielemann’s counsel complained that he had been denied 5

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
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 of 6

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.
 We are satisfied that the District Court properly determined 7

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
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 Special 8

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
 Plain error requires that there be an error, that the error be 9

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.
 Thielemann erroneously contends that the District Court 10

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

Of the defendant’s eight associates

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. Without 11
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 withinGuidelines 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
 Thielemann also contends that the District Court erred in 12

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.
 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 at 13

151. When a ban restricts access to material protected by the
 Protected materials include “nonobscene, sexually explicit 14

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 restricting 15

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 the 15

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
The “sexually explicit” materials condition in Voelker is 16

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
 The children subjected to Thielemann’s sexual 17

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
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” and 18

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 adultsexual 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
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
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]
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
 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:
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
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
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.