In the

United States Court of Appeals

For the Seventh Circuit

No. 07-3953

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BRUCE J. RHODES,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 07 CR 94—Barbara B. Crabb, Chief Judge.

ARGUED OCTOBER 23, 2008—DECIDED JANUARY 13, 2009

Before BAUER, WOOD, and TINDER, Circuit Judges.

TINDER, Circuit Judge. Bruce Rhodes pled guilty to

knowingly possessing a computer hard drive containing video depictions of a minor engaging in sexually

explicit conduct, in violation of 18 U.S.C. § 2252(a)(4). The

court sentenced Rhodes to a ten-year term of imprisonment followed by a life term of supervised release. The

court imposed several special conditions of supervised

release, and Rhodes now challenges just a portion of one
2 No. 07-3953

condition—penile plethysmograph testing (known as

“PPG” in medical circles)—which he finds particularly

invasive for reasons that will be evident when this procedure is described below.

I. Background

In January 2007, Rhodes’s then-girlfriend reported to

police that she had discovered videos on Rhodes’s computer that she thought contained child pornography. Police

obtained a warrant and seized Rhodes’s computer. Forensic examination of the computer revealed pictures and

videos containing children engaged in sexually explicit

acts. Rhodes admitted to downloading and viewing child

pornography. A grand jury returned a single-count indictment of knowingly possessing a computer hard drive

containing video depictions of a minor engaging in sexually explicit conduct, to which Rhodes pled guilty.

In sentencing Rhodes, the district court noted that

Rhodes had a prior conviction for third-degree sexual

assault. The conviction arose from his having sexual

intercourse with a thirteen-year-old girl, a charge to

which he pled no-contest in a Wisconsin state court in

2000. Based on that conviction, the court found that the

mandatory statutory enhancement under 18 U.S.C.

§ 2252(b)(2) applied, which set the minimum term of

imprisonment at ten years and the maximum at twenty

years. The court also calculated the advisory sentencing

range under the U.S. Sentencing Guidelines. Rhodes had

an offense level of 26 and a criminal history category of

IV, which placed him in the advisory range of 92 to 115
No. 07-3953 3

months’ imprisonment. The court noted that the statute

mandated a minimum sentence that was greater than the

advisory range and sentenced Rhodes to ten years’ imprisonment, which was to run consecutively to the sentence

imposed in the Wisconsin state court for the violation of

his term of extended supervision. The imprisonment was

to be followed by a life term of supervised release

subject to the mandatory and standard conditions. See

U.S.S.G. § 5D1.3. The court also found that nine special

conditions were appropriate. The condition at issue

stated that Rhodes was to “undergo a psychosexual

evaluation and participate in an outpatient sex offender

counseling program if recommended by the evaluator

which may involve use of polygraph and plethysmograph

examinations.” Rhodes’s attorney made a brief and unadorned objection to this condition on general Fifth

Amendment grounds.

In explaining the propriety of the sentence, the court

expressed that, in light of Rhodes’s previous conviction,

his possession of more than 150 images and videos containing child pornography suggested that he had a

“dangerous attraction to children.” The court noted that

his possession of a computer was in violation of a condition of his state supervision. He also previously had the

opportunity to participate in treatment while under state

supervision, but he admitted that his attitude had interfered with treatment. The court found that his actions

created a risk that he would commit additional criminal

acts, placing the community—especially children—in

jeopardy. Rhodes now appeals the above-mentioned

special condition.
4 No. 07-3953

II. Discussion

Penile plethysmograph testing is a procedure that

“involves placing a pressure-sensitive device around a

man’s penis, presenting him with an array of sexually

stimulating images, and determining his level of sexual

attraction by measuring minute changes in his erectile

responses.” Jason R. Odeshoo, Of Penology and Perversity:

The Use of Penile Plethysmography on Convicted Child Sex

Offenders, 14 TEMP. POL. & CIV. RTS. L. REV. 1, 2 (2004). The

use of PPG testing “has become rather routine in adult

sexual offender treatment programs,” United States v.

Weber, 451 F.3d 552, 562 (9th Cir. 2006), and courts have

upheld conditions requiring offenders to undergo PPG

testing under various legal challenges. See Odeshoo, supra,

at 20 n.151-52 (collecting cases).

Though the use of PPG is not uncommon, experts

disagree as to its effectiveness. “The reliability and validity

of this procedure in clinical assessment have not been

well established, and clinical experience suggests that

subjects can simulate response by manipulating

mental images.” AM. PSYCHIATRIC ASS’N.,DIAGNOSTIC AND

STATISTICAL MANUAL OF MENTAL DISORDERS 567 (4th ed.,

text revision 2000); see also Dean Tong, The Penile

Plethysmograph, Abel Assessment for Sexual Interest, and

MSI-II: Are They Speaking the Same Language?, 35 AM. J.

OF FAM. THERAPY, 187, 190 (2007) (“The PPG, when administered properly, represents a direct and objective

measurement of a man’s level of sexual arousal to normal

versus sexualized stimuli. Since there is a strong relationship between an individual’s pattern of sexual arousal
No. 07-3953 5

and the probability that he may or will act upon that

arousal, an important first step in gauging one’s propensity to sexual deviancy is to obtain an accurate assessment of that person’s sexual arousal patterns, which is

precisely what the PPG does.”); James M. Peters, Assessment and Treatment of Sex Offenders: What Attorneys Need

to Know, ADVOCATE, Dec. 1999, at 23 (1999) (PPG “is

invaluable in the evaluation, treatment and management

of known sexual offenders.”); John Matthew Fabian, The

Risky Business of Conducting Risk Assessments for Those

Already Civilly Committed as Sexually Violent Predators, 32

WM. MITCHELL L. REV. 81, 101 (2005) (“[S]ome evaluators

believe that polygraph and [PPG] testing are unreliable

and invalid, and thus should be prohibited because such

data may lead to false positives, suggesting that an offender will reoffend when he ultimately does not.”);

Odeshoo, supra, at 43 (“Why, given the fact that PPG

is more expensive, more time-consuming, more intrusive

and degrading, and not demonstrably more reliable

than the polygraph, would authorities nonetheless insist

that sex offenders submit to PPG examinations?”).

The district court imposed a special condition of supervised release that first requires a psychosexual evaluation,

which could then lead to mandatory participation in a

sex offender treatment program. As part of such a program, Rhodes could be required to undergo polygraph

and PPG testing. Rhodes objected “for the record” on Fifth

Amendment grounds without elaboration. On appeal,

he argues that because PPG testing implicates a

significant liberty interest, the district court should be

required to state that the condition “involves no greater
6 No. 07-3953

deprivation of liberty than is reasonably necessary.” 18

U.S.C. § 3583(d)(2). Rhodes concedes that our standard

of review at this stage is from the narrow perspective of

plain error because he did not object to the condition on

the same grounds that he raises in this appeal. United

States v. Schalk, 515 F.3d 768, 776 (7th Cir. 2008).

A district court has the discretion to impose special

conditions of supervised release if the condition: (1) is

reasonably related to the nature and circumstances of the

offense, the history and characteristics of the defendant,

and the need to provide adequate deterrence to criminal

conduct, protect the public, and rehabilitate the

defendant; (2) involves no greater deprivation of liberty

than is reasonably necessary for the purposes of deterrence, public protection, and rehabilitation; and (3) is

consistent with any pertinent policy statements issued by

the Sentencing Commission. 18 U.S.C. §§ 3553(a), 3583(d).

When crafting a defendant’s sentence, the district court is

not required to address each factor “in checklist fashion,

explicitly articulating its conclusion for each factor,” as

long as the court’s statement of reasons is adequate and

consistent with the factors. United States v. PanaiguaVerdugo, 537 F.3d 722, 728 (7th Cir. 2008). Because PPG

testing is mentally and physically intrusive, Rhodes

urges us to follow the Ninth Circuit’s approach in

United States v. Weber, 451 F.3d 552 (9th Cir. 2006) and

require the district court to state precisely why the PPG

testing is no greater deprivation of liberty than is reasonably necessary. In determining that a special procedure

is warranted before PPG testing can be imposed, the

Ninth Circuit noted that a number of less intrusive alter-
No. 07-3953 7

natives exist for treating sex offenders. Id. at 567-68.

The court declined to say “categorically that . . .

plethysmograph testing can never reasonably promote at

least one, if not all three, of the relevant goals laid out in

§ 3553(a)(2)—namely, deterrence, public protection, and

rehabilitation.” Id. at 566.

The government, on the other hand, asks that we

follow the Sixth Circuit’s approach in United States v.

Lee, 502 F.3d 447 (6th Cir. 2007) and dismiss the claim as

unripe. In Lee, the district court imposed the condition

that upon release, the defendant “must participate in a

specialized sex offender treatment program that may

include the use of plethysmograph or polygraph.” Id. at

449. The Sixth Circuit held the claim was not ripe for

two reasons. First, the condition only potentially required the defendant to have PPG testing. Id. at 450. The

defendant would not be released from prison for

fourteen years, and the court could not predict whether

the probation office would, in fact, find the testing necessary for the defendant’s treatment at that time. Id.

“[G]iven that the occasion may never arise, Lee’s contention that he will actually be subject to penile

plethysmograph testing is mere conjecture.” Id. Second,

the court noted that it was unclear whether PPG testing

would still be used for evaluation or treatment by the

time the defendant was released from prison, since PPG

testing “implicates significant liberty interests, and

further, its reliability is questionable.” Id.

We find the Sixth Circuit’s reasoning persuasive and

consistent with our approach in United States v. Schoenborn,
8 No. 07-3953

4 F.3d 1424 (7th Cir. 1993). In Schoenborn, the defendant

was sentenced to imprisonment for five years, the

statutory maximum term, followed by supervised release

for three years, also the statutory maximum term. The

defendant argued that any violation of his supervised

release, “say for missing an appointment with his probation officer or for drinking a beer,” could result in additional jail time exceeding the statutory maximum. Id. at

1434. We held that the claim was not ripe. Id. “One

who invokes the jurisdiction of a federal court must

establish, before all else, that he has suffered a concrete

and particularized injury; a conjectural one will not do.” Id.

As in Lee and Schoenborn, Rhodes’s claim is based on a

number of contingencies. He was sentenced to ten years

of imprisonment, consecutive to the term imposed by

the state court due to Rhodes’s violation of extended

supervision for his 2000 conviction. His term of supervision will begin only after his release from imprisonment (which could not be sooner than eight and one-half

years after he enters the federal prison system upon the

completion of his Wisconsin sentence, assuming that he

gains full credit for satisfactory behavior pursuant to

18 U.S.C. § 3624(b)). Only then could an evaluator recommend that he participate in an outpatient sex offender

counseling program. And even if the evaluator were to

recommend a treatment program, PPG testing will not

necessarily be required. Perhaps the counselor and the

Probation Officer responsible for this case may determine

that testing would not be efficient, effective, economical,

or necessary, or perhaps they would be satisfied with

polygraph testing alone, which is not unusual. As the
No. 07-3953 9

condition is stated, there is a fair amount of discretion

regarding the techniques to be utilized. In the meantime,

the development of science or the law may render the

PPG testing irrelevant or even illegal, or maybe the movement will be in a different direction altogether—a lot can

happen in the better part of a decade. Were we to

instead move at this time to follow Weber and hold that

the district court had to state why PPG was preferable to

less intrusive methods for this particular defendant, we

would be addressing a question full of contingency and

abstraction founded in an evolving scientific field, perhaps

to the detriment of the defendant’s rehabilitation—and

doing so with an undeveloped trial court record. Experts

already disagree as to which evaluation and treatment

methods are the most effective, and we would do well to

await a more concrete presentation of this issue.

Regardless, Rhodes can later petition the district court to

modify the condition. Lee, 502 F.3d at 451; 18 U.S.C.

§ 3583(e)(2); see also Fed. R. Crim. P. 32.1(c). Through

such a petition, he could initially present the district court

with the up-to-date scientific and legal criticisms of PPG,

rather than saving such a presentation for an appellate

brief. We acknowledge Rhodes’s concern, as he colorfully

describes it, that if the district court created a condition

that he go over Niagara Falls in a barrel, he should be

permitted to challenge it before he plummets over the

edge. Indeed, if Rhodes were to be ordered to undergo

PPG testing, he could be faced with undergoing the

testing (or the alternative of violating the condition of

supervised release) before his request to modify was

considered by the district court. We think under those
10 No. 07-3953

circumstances, Rhodes should be permitted to have the

district court consider his request to modify the condition

before he is required to undergo the testing. But he is

nowhere near such a crest in the supervised release

process.

This is not to say that a defendant can never

immediately appeal a condition of supervised release

after sentencing. We have entertained such appeals on

countless occasions. A few examples—in United States v.

Ross, 475 F.3d 871, 875 (7th Cir. 2007), we considered a

defendant’s appeal of a supervised release condition

that he participate in sex offender evaluation and treatment. In United States v. Holm, 326 F.3d 872, 877 (7th

Cir. 2003), we addressed a defendant’s appeal of a supervised release condition prohibiting him from using the

Internet entirely. In United States v. Paul, 542 F.3d 596,

600-01 (7th Cir. 2008), we considered a defendant’s

appeal of a supervised release condition that he submit to

drug testing. In United States v. Schave, 186 F.3d 839, 841-43

(7th Cir. 1999), we considered the defendant’s appeal of

supervised release conditions prohibiting him from

drinking alcohol and associating with white supremacy

groups.

In each of these cases, the defendant was sentenced

to several years’ imprisonment before the challenged

terms of supervision commenced, yet we analyzed the

propriety of the challenged supervised release conditions at the front end of those sentences. The conditions

in each of those cases were determinate, however: Ross

was required to participate in sex offender evaluation
No. 07-3953 11

and treatment, Paul was subject to drug testing, Schave

could not drink alcohol or associate with white

supremacy groups, and Holm could not use the Internet—

all with unqualified certainty. Rhodes, on the other hand,

may only be affected by the condition after a string of

contingencies—he must complete his prison terms, his

evaluator must recommend that he undergo a sex

offender counseling program, and the program must

include PPG testing. Therein lies the difference.

III. Conclusion

Because Rhodes’s special condition will only become

effective after he serves more than ten years’ imprisonment

and several other conditions are met, we DISMISS his

claim without prejudice as unripe.

1-13-09