In the

United States Court of Appeals

For the Seventh Circuit

No. 11-1153

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CHRISTOPHER MUSSO,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 3:05-cr-30101—David R. Herndon, Chief Judge.

ARGUED JUNE 6, 2011—DECIDED JULY 1, 2011

Before KANNE, EVANS, and SYKES, Circuit Judges.

EVANS, Circuit Judge. In 2005, Christopher Musso pled

guilty to 11 counts of possession of child pornography,

in violation of 18 U.S.C. § 2252(a)(4)(B). He subsequently was sentenced to a term of 37 months’ imprisonment

and three years of supervised release. Five years later,

the government filed a petition to revoke Musso’s supervised release, alleging that he had committed three viola-
2 No. 11-1153

At oral argument, we questioned whether Musso’s admissions 1

regarding the standard conditions violations alone justified the

revocation. At the revocation hearing, however, the district

judge indicated that his findings on the contested issues could

affect the disposition and sentence.

Musso was sentenced on January 5, 2011, so as of the date of 2

oral argument, he had less than a month of imprisonment

remaining.

tions of standard conditions and three violations of a

special condition of the release. Musso admitted two of the

three standard conditions violations (the third was dismissed by the government) but contested the alleged

special condition violations, all of which related to his

sexual offender treatment.1

After a revocation hearing, the district judge found that

all of the allegations had been proven, revoked Musso’s

release, and imposed a within-guidelines sentence of six

months’ imprisonment and 30 months of supervised

release. The judge also announced several new special 2

conditions of the supervised release. Musso appeals.

Back in 2006, when Musso received his original sentence for possession of child pornography (specifically,

“graphic visual depictions . . . show[ing] an actual child

engaged in a sex act”), the district judge imposed a

special condition of supervision requiring Musso to

“participate in an approved sexual offender treatment

program” and to “abide by all rules, requirements, and

conditions of the treatment program.” Accordingly, in

2009, after his release from prison, Musso entered a
No. 11-1153 3

treatment program and signed a contract regarding his

responsibilities. The contract stated that Musso would

“participate in group discussions, treatment activities, and

written assignments” and that “simply showing up for

sessions is not enough to be considered cooperative with

treatment.”

The contract also required Musso to avoid sexual material, including “[a]ny visual depictions of children engaged in sexual activity,” “[a]ny other visual . . . materials

intended for the purpose of causing sexual arousal featuring or describing children in a sexual or erotic manner,” “[a]ny material not generally intended to be erotic,

but used by me for the purpose of arousal or other

sexual purpose featuring children” (to be identified

through therapy), and “[m]aterial showing . . . overt sexual activity involving adults.” The contract further specified that Musso should have no contact with children,

except “[r]elatives, with direct eyesight supervision by

an adult aware of offense history.”

In August 2010, probation officers conducted a routine

search of Musso’s apartment. There, they found a box

containing 37 photos of “female erotica.” One of the

pictures showed a girl of a questionable age in a bra and

underwear. According to the officers’ report, Musso

explained that the photos were of women over the age of

18 and that it had been acceptable for him to possess the

photos while in prison. Musso said that he had sent

the photos to his parents before his release, and his parents

recently had returned them to him. Musso’s father later

verified this information and surmised that his son had

not looked through the box since its return.
4 No. 11-1153

The officers also searched Musso’s cell phone and found

seven pictures that he had taken at a high school car

wash fundraiser. The photos showed Musso’s young

nephew with high school girls who were wearing shorts

and t-shirts or tank tops. According to the officers’ report,

Musso explained that he went to the car wash with

his family and that it was the girls’ idea to involve

his nephew in the car washing. Musso’s mother later

verified this information and also stated that she suggested

that Musso take the pictures because she had left

her camera in her car.

Also during the search, Musso volunteered that he had

recently been helping a female friend, Sarah McBride.

Specifically, on several occasions, Musso drove McBride

and her infant daughter to the daughter’s day care center

while McBride’s car was being repaired. On one occasion,

Musso had McBride’s daughter alone with him in his

car while McBride test drove another vehicle. McBride

later verified this information during a phone interview

with a defense investigator.

Around the same time, Musso’s probation officer, Mark

Bundren, received information suggesting that Musso

was not progressing in therapy. Bundren subsequently

requested a summary of Musso’s progress from his therapist, Kristen O’Steen. O’Steen reported in a letter

that, while Musso offered appropriate feedback to other

group members and was attentive and well-mannered,

he “talked in group about superficial personal

topics without examining the core issues that brought

him to treatment.” Musso “frequently use[d] denial,
No. 11-1153 5

minimization, and victim stance to avoid accountability

for his actions.” He also “lack[ed] motivation to participate meaningfully in group or consistently turn in his

treatment homework.”

Based on this information, the government filed

a petition to revoke Musso’s supervised release. Specifically, the government alleged that Musso violated a special

condition of supervision requiring him to “abide by

all rules, requirements, and conditions” of the sexual

offender treatment program by: (1) failing to participate

in sexual offender group treatment sessions and to turn

in homework assignments, (2) possessing prohibited sexual

materials, and (3) having prohibited contact with a minor.

After the revocation hearing, the district judge determined that the allegations had been proven by a preponderance of the evidence. Regarding the first allegation,

the judge found that Musso was “not participating in

therapy in a meaningful way[,] . . . doesn’t do homework appropriately, . . . [and does] not talk about his

own problems.” Regarding the second allegation, the

judge found that the “picture that was put in evidence

of the young girl in her underwear [was] unquestionably

something that [Musso] should not have had

in [his] possession” and that Musso “ha[d] an obligation

to go through those [pictures] and get rid of anything that’s going to put you in trouble.” The judge

also found that “[i]t’s a violation for [a] sex offender to

take a picture like [the ones of the high school girls].”

Regarding the third allegation, the judge found that

Musso having McBride’s daughter alone in his car was

“unsupervised contact with a minor.”
6 No. 11-1153

The judge concluded that “if one looks at the cumulative

effect of these offenses, they tell a more serious story, and

they at the very least raise a red flag for a concern about

the future[.]” In addition to a term of imprisonment and

supervised release, the judge also imposed new special

conditions of the release, requiring Musso to: (1) submit

to six months of “location monitoring” after his release

from prison, (2) observe a 9 p.m. to 6 a.m. curfew,

(3) refrain from frequenting, loitering, or residing within

500 feet of locations where children congregate, (4) have

no supervised or unsupervised contact with any minor,

and (5) forego volunteer activities that might result

in contact with minors. Musso did not raise an objection

to the new special conditions. 

On appeal, Musso takes issue with the judge’s decision

to revoke his supervised release and the judge’s imposition

of new special conditions of the release. We review

a revocation of supervised release for an abuse of discretion. United States v. Young, 41 F.3d 1184, 1186 (7th

Cir. 1994). A district judge’s factual findings are

reviewed for clear error. United States v. Berry, 583

F.3d 1032, 1034 (7th Cir. 2009). Supervised release may

be revoked if a violation of a condition of the release

is proven by a preponderance of the evidence. 18 U.S.C.

§ 3583(e)(3). To repeat, all of the contested allegations

relate to a special condition of supervision requiring

Musso to “abide by all rules, requirements, and conditions” of the sexual offender treatment program.

The judge found that Musso did not participate meaningfully in sexual offender group treatment sessions and
No. 11-1153 7

failed to turn in homework assignments. Musso’s treatment contract stated that he would “participate in group

discussions, treatment activities, and written assignments”

and that “simply showing up for sessions is not enough

to be considered cooperative with treatment.” Yet

O’Steen reported that Musso “talked in group about

superficial personal topics without examining the core

issues that brought him to treatment,” “frequently use[d]

denial, minimization, and victim stance to avoid accountability for his actions,” and “lack[ed] motivation to participate meaningfully in group or consistently turn in

his treatment homework.” This evidence clearly supported the judge’s finding. 

Musso’s only counterargument on this issue is that

O’Steen’s complaints were based primarily on Musso’s

contention that he did not commit the other alleged special

condition violations. But, as shown by the excerpts we

just discussed, O’Steen also determined that Musso

was not progressing in therapy because of his failure to

examine core issues, participate meaningfully in the group

sessions, and submit homework assignments. And Musso

specifically admitted the latter allegation in his appellate

brief. Thus, there was no error in the judge’s conclusion

that the first allegation had been proven.

The judge also found that Musso possessed sexual

materials prohibited by his sex offender treatment contract.

The contract required Musso to avoid sexual material,

including: (1) “depictions of children engaged in sexual

activity,” (2) “visual . . . materials intended for the purpose of causing sexual arousal featuring or describing
8 No. 11-1153

children in a sexual or erotic manner,” (3) “material not

generally intended to be erotic, but used by me for the

purpose of arousal or other sexual purpose featuring

children” (to be identified through therapy), and

(4) “[m]aterial showing . . . overt sexual activity

involving adults.” 

But during a search of Musso’s apartment, probation

officers found a box containing 37 photos of “female

erotica.” The images, such as the one admitted into evidence of the young female in her underwear, clearly violate

at least one of the contract provisions that we just listed.

And, contrary to Musso’s assertions, the record indicates

that he knew that the box was in his possession and that

he was familiar with the pictures in the box. Thus,

the judge did not err in finding that Musso “ha[d]

an obligation to go through those [pictures] and get rid

of anything that’s going to put you in trouble.” 

Musso also knowingly possessed seven pictures showing

his young nephew at a car wash with high school girls

who were wearing shorts and t-shirts or tank tops.

Musso and his mother came up with several reasons

why Musso’s actions were innocent, but the point is that

Musso admitting to taking the pictures, all of which

featured scantily-clad teenage girls. Such images arguably

fall under the third prohibition in Musso’s contract.

But even giving Musso the benefit of the doubt on this

matter (the evidence was slim regarding whether images

like these were identified through therapy), Musso’s

possession of 37 photos of “female erotica” provided

sufficient support for the judge’s determination that

the second allegation had been proven.
No. 11-1153 9

Finally, the judge found that Musso engaged in prohibited contact with a minor. The contract specified that

Musso should have no contact with children, except

“[r]elatives, with direct eyesight supervision by an adult

aware of offense history.” During the probation officers’

search of Musso’s apartment, he volunteered that, on

several occasions, he drove McBride and her infant daughter to the daughter’s day care center while McBride’s

car was being repaired. Musso further admitted that,

on one occasion, he had McBride’s daughter alone with

him in his car. This conduct clearly violates the contract,

as McBride’s daughter was not Musso’s relative. Thus,

the judge did not err in concluding that the third allegation

had been proven. 

Musso also briefly challenges the judge’s imposition of

new special conditions of the release. Normally, we review

such decisions for an abuse of discretion. United States

v. Ross, 475 F.3d 871, 873 (7th Cir. 2007). But where, as

here, a defendant did not object to the special conditions,

our review is for plain error. Id. In his appellate reply

brief, Musso argues that we should not apply plain

error review because he had insufficient notice of the

new special conditions, he had a limited opportunity

to object, and any objection would have been futile.

No matter. We would find the judge’s decision proper

even under the more favorable standard.

Special conditions must be reasonably related to the

defendant’s offense, history, and characteristics; the

need for deterrence; the need to protect the public from

the defendant; and the need to provide the defendant
10 No. 11-1153

with treatment. See 18 U.S.C. § 3583(d). The conditions

cannot involve a “greater deprivation of liberty than

is reasonably necessary” to achieve the latter three goals.

Id. Here, the new special conditions required Musso to:

(1) submit to six months of “location monitoring” after

his release from prison, (2) observe a 9 p.m. to 6 a.m.

curfew, (3) refrain from frequenting, loitering, or residing

within 500 feet of locations where children congregate,

(4) have no supervised or unsupervised contact with any

minor, and (5) forego volunteer activities that might result

in contact with minors. Musso argues that these restrictions seek to prevent contact offenses, and there is no

reason to believe that he is dangerous to children.

Musso’s original offense involved possessing “graphic

visual depictions . . . show[ing] an actual child engaged

in a sex act.” More importantly, we have already determined that Musso committed three violations of an original

special condition of the release, one of which involved

having prohibited contact with a minor. Based on these

facts, the judge did not abuse his discretion in imposing

new special conditions aimed at preventing contact

offenses.

For all of the foregoing reasons, the judgment of the

district court is AFFIRMED.

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